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Baroness Scotland of Asthal: I understand the noble Lord's concern about those matters. Of course, we are considering the difficulties that will arise if there is conflict between the two. We believe that the model outlined in the Bill will deal with the situation, and we must keep the issue in perspective. The Judicial Appointments Commission will have 13 members, including the Lord Chief Justice. It is only the five lay members—a minority—who will be appointed by the First Minister and the Deputy First Minister, and they must be appointed jointly.
The way in which the commission has been structured creates the balance that should make sure that merit is put first and becomes the only criterion that will determine appointment. I am sure that noble Lords will agree that the inclusion of the Lord Chief Justice as the chairperson of the commission will be a powerful instrument for independence and will ensure that the right importance is given to merit as the appropriate criterion for making that decision.
Viscount Brookeborough: The appointment of the Chief Constable was mentioned—not, in the first place, by me—and it has been emphasised by the Minister that the appointment of the judiciary will be
by merit only. I can assure the Committee that the decision on the appointment of the new Chief Constable was based on merit only.
Baroness Scotland of Asthal: I cast no aspersions in relation to that matter. The only point that I sought to make was that the balance was different. Within that membership, there is an overwhelming independent element. We are not suggesting that the independent members are not independent but, as the noble Viscount said, it is perhaps easier to identify certain members of the community with a view, whether they hold it or not. The way in which this has been structured helps to mitigate any such concern.
Viscount Brookeborough: The independents are in the minority. There are 10 political appointments and nine independents.
Lord Tebbit: What moves the Minister to think that, say, Mr Paisley and Mr Adams would have the same ideas about the merit of individuals as I or the noble Lord, Lord Fitt, or the noble and learned Lord, Lord Mayhew of Twysden, or even the Minister herself might have?
Baroness Scotland of Asthal: That is an enticing thought for us to consider. There are some solutions for cases on which the First Minister and Deputy First Minister cannot agree. Clause 5(7) provides that,
- "The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration".
Lord Rogan: If I have understood the Minister correctly, she was arguing that the impartiality and fairness of the Judicial Appointments Commission will be guaranteed by its professional make-up, with those members from the legal profession. If that is the case and if that is what she meant, why bother having five or six lay persons at all?
Baroness Scotland of Asthal: It is all a question of balance. The decision will be made on the criterion of merit and merit alone, but it is right that those who come to make the decision should listen to all parts of the debate so that they can weigh it appropriately before coming to a well and properly informed decision, as opposed to one that may be seen to be influenced by prejudice or lack of balance. We think that the current balance of 13 members, five of whom are lay, is about right. It allows the commission to consider the issues that are important across the board, but it enables decisions to be based on the needs and qualities that will be of the utmost importance in appointing the right judicial officer for a post of this gravity.
Lord Rogan: I have heard the arguments and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Desai moved Amendment No. 7:
- After Clause 2, insert the following new clause—
The noble Lord said: The amendment was in effect discussed when we debated the merits of the representativeness of these bodies. The principle of independence has been recognised, but the other important principle was the representativeness of this institution. Many of the institutions said that in consequence of the Belfast agreement this principle has been followed in the Northern Ireland Human Rights Commission, the Parades Commission and the Policing Board. It is important that we have representativeness in the Judicial Appointments Commission. Whatever else we may have a problem with, under-representation on the Judicial Appointments Commission would be very bad. I do not think that anybody can disagree with that. Although I recognise from the discussion that having a representative commission does not necessarily solve all political differences—and I would be very surprised if the appointment of the chief of police was an uncontroversial decision in Northern Ireland in any case—the important point is that communities are represented and have had their say and at the end of that we have a decision. Representativeness is an important principle and I therefore urge the Grand Committee to accept the amendment. I beg to move.
Lord Tebbit: I hate to find myself in any sort of conflict with the noble Lord, Lord Desai, but I think that there is a problem with the amendment. The amendment itself has great merit, but Clause 5(8) says:
Lord Desai: Perhaps I may respond to the noble Lord, Lord Tebbit. In other institutions, such as the Policing Board, where the same principle has been followed, no one has said that those who have been appointed are not people of merit. It will not appoint people who lack merit just because they are representative but, from the large pool of people of merit that we have available, we should look to the element of representation as an important principle.
Lord Glentoran: It is with some sadness that I find, in such debates, that I am never in agreement with the noble Lord, Lord Desai. We can be good friends elsewhere, but we rarely seem to agree on Northern Ireland matters. Once again, I have to disagree with the noble Lord on his amendment.
The business of being "representative of the community" has become such a loose, almost journalistic phrase that it would be inappropriate to incorporate it into a Bill as important and objective as this one must be.
Lord Laird: While I have some sympathy with the concept behind the amendment tabled by the noble Lord, Lord Desai, I agree with the noble Lord, Lord Glentoran. These are loose words. Let us take the example of the Northern Ireland Human Rights Commission, which is supposed to be representative of the entire community. Despite that, large sections of the community are left out.
A further example, which I know well, is that there is no representative of the Unionist "No" community, no representative of the Evangelical community, and no representative of the Ulster-Scots community. This is an issue on which I, along with the human rights groups with which I am associated, am totally in synch with the Pat Finucane Centre in Londonderry. We have jointly made representations to the Northern Ireland Office to see whether we can achieve better representation. The phrase "representative of the community" means what anyone wants it to mean.
Lord Shutt of Greetland: I should like to speak to this amendment. While I am happy with the spirit behind it, there are difficulties with the word "representative". In Northern Ireland, if five people are together and the word "representative" is mentioned, there would be one from the DUP, one from Sinn Fein, one from the SDLP, one from the UUP and a person whose children go to an integrated school. If it is not, someone will say, "Our lot are not represented". That is the problem with the word "representative".
If the word "reflective" rather than "representative" were to be used, that would be a far more acceptable amendment to the Bill. Perhaps what the noble Lord, Lord Desai, has suggested is this: if one stands back and considers that group of five people, do they look like a group who, by and large, are reflective of the community of Northern Ireland?
Lord Hylton: The noble Lord, Lord Glentoran, may perhaps have a point about the precise wording of this amendment. I am sure that Members of the Committee agree that appointments at this level should be made entirely on merit. Nevertheless, in the past there have been far too many instances of accused persons being brought before the court and then refusing to accept the jurisdiction of that court. That is probably what the noble Lord, Lord Desai, is trying to counter. I believe that he seeks to make the judiciary
"JUDICIAL APPOINTMENTS: GENERAL PRINCIPLES
Those responsible for making appointments under this Part shall as far as practicable ensure that the judiciary, as a group, are representative of the community in Northern Ireland."
"The selection of a person by the Commission to be appointed, or recommended for appointment, to an office . . . must be made solely on the basis of merit."
That seems to be in conflict with a requirement to take into account which community they represent. The new clause does not seem to be compatible with Clause 5(8).
4.45 p.m.
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