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Lord Mayhew of Twysden: I recognise the good intentions of the noble Lord, Lord Desai, but it is extremely difficult to incorporate this kind of language into the statute book.

In paragraph 6.87 of the report of the review, which I do not propose to quote, it is clear that while careful consideration was given to using the word "representative", the group actually preferred the word "reflective". However, in my view, it is not capable of meaning anything in practical terms—in the real and practical interpretation that has been given to it in Northern Ireland—other than that it is probably representative of the religious split. That is what is meant by the community. We have all tried to insist for years on referring to "the community". The reality is that there are two communities, and various sub-communities as well.

It is important that we do not give legislative encouragement to the notion that the principal division is always going to be by reference to religion. I cannot see any other criterion by reference to which representation of the community is going to be made in Ireland. How can it be made by reference to political allegiance? Judges are not expected to have any political allegiance. Certainly barristers or solicitors who are being considered for appointments to the Bench ought not to be considered by reference to their political allegiance, if any.

We should take advantage here of the consideration and advice given by the review body, and, while acknowledging that it would be very nice if nobody could ever say, "Well, of course, that chap who tried my case has nothing in common with me", the truth of the matter is that one will always get that. When people in the past refused to recognise the jurisdiction of the court, it had nothing to do with the religion of the judge or what part of the community he came from. There were other reasons for that, as we all know.

Baroness Scotland of Asthal: I am grateful to the noble Lord, Lord Desai, for tabling the amendment, and for the comments that have been made by a number of noble Lords. In relation to the exercise of judicial office, it is right that we should all bear in mind that all judges represent the impartial rule of law as opposed to any particular community. The oath in Clause 19 that we are going to invite each of our judges to take makes it clear that they will do,

The idea of a statutory requirement to secure a reflective judiciary has been discussed in another place, where the notion was resisted because of the fears that appointing a judiciary with regard to reflectiveness could undermine the merit principle, which could lead to the undesirable criticism that judges were appointed to even up the numbers rather than on merit.

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That is clearly not the intention of the review, which recommended that merit should remain paramount. Everyone present in the Committee today would agree with that sentiment.

It is also right for us to bear in mind the situation in Northern Ireland as it is today, not as it was 30 years ago. We all know that there is a very good pool of candidates from both communities and of both sexes who would be capable of being appointed to judicial office. Provided that people apply for these posts from both parts of the community, we are confident that the judiciary will reflect the wider community. We believe that strict application of the merit principle will ensure that that happens.

It is also right for us to emphasise that, whether we say "representative" or "reflective", this does not just cover the two religious communities in Northern Ireland; it also covers gender, ethnicity and community background, both when used in this context and elsewhere on the statute book.

Bearing in mind the sensitivity that exists around this issue, it would not be right to accept the amendment, even if it were amended to say "reflective", because it may then lead to the suggestion that we are inviting our judges to dispense justice in accordance with the precepts upon which their community is run. I know that no-one in this Committee would wish to do that. As we said, the judges have done a robust and brave job. To the best of my knowledge and belief—I am sure that noble Lords will correct me if I am wrong—all judges, irrespective of where they hail from, have, to date, dispensed justice in the cases that have come before them with the same degree of impartiality, regardless of whether they are Unionist or Catholic.

Lord Desai: I thank everyone who has spoken. I see the dilemma: we do not want to think that the judges are, in some sense, delegates of the community. I did not suggest that they should be. I did not even set down what constituencies they would be representative of; I just suggested that they,

    "are representative of the community".

I recognise that there is a problem, and we must live with it. It seems that, by some mysterious process, those appointed will eventually be reflective—or whatever word we use—of the community without our putting down any stipulation to ensure it. No matter how good those people are, we shall have problems if the community does not consider that they reflect it. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Listed judicial offices]:

[Amendment No. 8 not moved.]

Schedule 1 agreed to.

Clause 3 [Judicial Appointments Commission]:

[Amendment No. 9 not moved.]

Lord Glentoran moved Amendment No. 10:

    Page 2, line 30, leave out "five" and insert "six"

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The noble Lord said: In moving Amendment No. 10, I shall speak also to Amendment No. 11 and the others. The amendments concern the make-up of the appointments commission. The first two deal with the membership of the Judicial Appointments Commission and propose a re-balancing of the numbers. The others deal with the qualifications of the lay members.

I am rather loath to say what I am going to say, but I shall do so nonetheless. We are talking about the review as if it were the Bible, which it is not. The review did not recommend a precise figure for the membership of the commission. It says:

    "In total the Commission might consist of around five judicial members, two from the professions and four or five lay members".

My amendment would ensure that there was a majority on the commission of members of the judiciary. It seems to me, from the many discussions that I have had about the topic, that the appointments for which the commission is responsible are objectively judicial-legal. If we are to stay with the merit principle throughout—I sincerely hope that we will—we must have a majority of people on the appointments commission who are able to assess, balance and judge the merit of the various lawyers who will come before them for promotion and appointment.

It can be argued one way or another, but I am assured by my noble and learned friend Lord Mayhew of Twysden that a barrister is certainly not a member of the judiciary. If we examine the numbers, we will find that there are seven lay and six judiciary members, including the chairman. That balance is wrong, and there should be a clear majority of members of the judiciary on the appointments commission.

I propose to change the figures from five to six, in one case, and from five to four, in the lay case. That creates a clear balance. Our debate on the previous amendment is relevant. If we stand over the fact that these people will be independent human beings and will be there on merit, I believe that there would be a much better chance of maintaining the merit principle and of maintaining the exceptionally high standards of the judiciary in Northern Ireland, than if we were to allow the balance to drift. Whether it involved a 50:50 split or perhaps a barrister tying in with the Lord Chief Justice or the chairman to make a deal—which is the way in Northern Ireland—that potentially would lead us into difficulties of a serious order.

Amendments Nos. 12 and 13 relate to the qualification regarding the lay people. Here and throughout the Bill, the Minister will find that I have tabled amendments with only one clear objective; namely, that the judiciary, along with all those who have anything to do with the judiciary in Northern Ireland, should not only be seen, but be perceived to be totally whiter than white. At this point in our history we cannot have former terrorists, former con men, former criminals, former prisoners and the like involved in any part of our judicial system. That is the purpose of the amendments. I beg to move.

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5 p.m.

Lord Rogan: I should like to speak to Amendments Nos. 10 and 11 and, if it aids the speed of debate, to speak also to Amendment No. 19 standing in my name. The whole of Clause 3 provides for the Judicial Appointments Commission. There is widespread acceptance of a global shift towards the use of such commissions. One cannot oppose the concept of such a commission and I do not seek to do so. However, I am troubled by certain issues with respect to its make-up.

The use of lay members is questionable in itself, but at least the balance of the commission should favour more strongly the expert judicial members than any others. How could a lay member—one who specifically should not have held and had never held a protected judicial office, who has never been trained as a barrister or a solicitor—be competent to judge on the merits or otherwise of persons to be appointed? The only way I would be able to judge whether a judge was good or bad would be whether or not he found me guilty, should I be before him in a court.

It must be remembered that lay members are to be restricted to those who have at no time qualified as lawyers or held judicial offices, excluding many academics and other professionals with a legal background. If we insist that lay members should be selected by the First Minister and Deputy First Minister, and if they are charged with making these appointments, perhaps I may suggest that appointing an even rather than an odd number would produce a better chance of agreement.

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