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Baroness Park of Monmouth: Before the noble Baroness replies, I should like to put a further question. She talked about the need to show trust, but throughout we have been showing trust at the expense of ordinary people who have not been able to convince us that sometimes that trust has been misplaced. What would be wrong about giving the First and Deputy First Ministers the security that would be afforded by including in the Bill an express statement to the effect that the people named under Amendment No. 14—I do not refer to Amendment No. 15—should be automatically excluded from consideration?

If the noble Baroness believes that the First and Deputy First Ministers will secure and keep the trust of the people, they would never appoint people like that. Nevertheless, pressure will be brought to bear on them to do so—very great pressure, as we all know. What would be wrong with safeguarding the position and sending a signal to the public that this issue has been thought about and provided against?

Viscount Brookeborough: All legislation concerning Northern Ireland is about taking it forward. We are trying to produce something that is acceptable but, at the same time, will ensure that it does not go off the rails through perception or anything else. By leaving in the possibility—when the Minister states that she does not like the requirement to be committed to non-violence, that automatically accepts that it is possible for somebody who is committed to violence to be acceptable within the law—if the occasion should arise, as the noble Lord, Lord Tebbit, has mentioned, with various personalities—unmentionable or otherwise—being split between the Deputy First Minister and the First Minister, then that, plus the perception as it could be seen by the public, is just what might push the Assembly apart.

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If it is not an option at all, and because of the general feeling among nationalists and Unionists that they want to take it forward—other than those who are at the moment actively involved in terrorist offences——they will not question the fact that this provision has been put in. I say that from my experience of what goes on in Northern Ireland. It is simply not true that they would expect anything other than that.

Lord Smith of Clifton: Before the noble Baroness replies, I urge the Government to reflect on the emerging consensus around Amendment No. 17. As the noble Lord, Lord Glentoran, said—and the noble and learned Lord, Lord Mayhew, reinforced the point—a declaration that embodied those sentiments would give some reassurance if the Government feel that they cannot accept the other amendments. I ask her to consider that.

Baroness Scotland of Asthal: This has been a very interesting and important debate and it would be wrong for me to say that the Government will not reflect on what has been said. We believe that it is very important to retain a degree of flexibility. Perhaps I should touch on Amendment No. 38, which I have not dealt with. It would disqualify anyone convicted of a criminal offence from being appointed a lay member of the commission. I understand the noble Lord's position on this issue, but such an amendment would remove the flexibility that is required to set aside relatively minor or outdated criminal convictions held by an otherwise excellent candidate.

The noble Lord, Lord Hylton, made a point about the rehabilitation of offenders. As those provisions currently operate, many who committed minor offences as juveniles now have the right to have those in effect expunged, so that they are treated once again as reputable and decent members of the community. One has to bear that in mind.

We understand the anxieties that Members of the Committee have expressed, but we have to be realistic in our approach. Professional rules in the appointments procedures for the judiciary and the legal profession already debar people who have committed certain serious offences that have been mentioned in the debate from any appointment. The pool of people who can be appointed to judicial office is already automatically restricted, because a person has to hold a valid certificate.

The position for the commission is different. I understand that noble Lords are concerned that some of the five lay members, who may not have that probity and integrity, may participate in the choice. There does have to be some flexibility and trust on those matters and the appointments that are made. Of course, we will think very carefully about what has been said in the debate, not least in relation to the issue of a declaration. However, as currently advised, our position is that the flexibility that we need is contained in the way in which we have currently phrased the Bill.

Lord Tebbit: I thought the noble Baroness understood that we understand that the Government want flexibility, but a number of us do not wish the

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Government to have that flexibility, and for very good reason. It is no good the noble Baroness talking about people who in their youth have committed some minor offence—I do not know what she has in mind; perhaps shoplifting in Woolworth's—and then gone on to lead a blameless life. We are not talking about people who were shoplifting in Woolworth's; we are talking about people who were murdering, bombing and wounding.

Baroness Scotland of Asthal: I certainly understand that that is the intent and the import of the amendments, but the current technical language includes many people who do not fall into the category that the noble Lord has just described, but would fall quite easily into the category of more minor and less serious offences. The amendment would cut them all out.

Of course, we have listened to everything that has been said. We will reflect on it and we will return to the issue on Report.

Lord Rogan: Does the Minister agree that, for the reason that she gave—namely that the persons who will put themselves forward for positions will have been well vetted and will have exemplary backgrounds—it will, in fact, be demeaning and offensive to them to be judged on their merit by people who, we know, come from less than proper backgrounds?

Baroness Scotland of Asthal: That is where the divide is. The Government would argue that, if we put trust in the First Minister, the Deputy First Minister and those who will be entrusted with the devolved administration, it would be highly unlikely—indeed incredible—that they should choose persons with that type of history to fulfil the role. There is, of course, a division between us about that.

Lord Glentoran: With respect to the Minister, I must say that it is very much on the cards that either the Deputy First Minister or the First Minister will be a murderer.

Lord Mayhew of Twysden: I will spare the Minister the responsibility of answering that point immediately by asking whether she would be kind enough to tell the Committee what conceivable objection there could be to requiring a lay person to make the declaration with which we have been dealing? In what respect could flexibility be diminished, were that to be a requirement? After all, the judges, in whose appointment such a person will play a part, must take the oath, which embraces what would be included in the declaration, by definition. If a judge is to be required—at the expense of flexibility—to take an oath to do justly and so forth and, by implication, to avoid injustice and violence, what is wrong with requiring a person who will play a part in his or her appointment merely to declare, when notified of the First Minister's intention to appoint them, that they are opposed to violence?

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The declaration is the key to the Government's thinking. We all understand the concept of flexibility, and, in our time, we have all taken refuge in it. What does it actually mean here that justifies declining to write into the Bill a requirement for a declaration?

Lord Scotland of Asthal: We have had an interesting debate. The matter has arisen as a result of our discussion, and we will take it back. I hear what the noble Lord said, and I can anticipate a screed of responses that I may be invited to make but which I would rather not make at this stage. I will consider the matter quietly, having gone through the issues and come back with a more cogent and well argued position. I can think of, perhaps, seven things that I might be invited to say, none of which would necessarily be judicious at this stage.

Lord Glentoran: I thank the Minister for her patience. I have no doubt that she has sensed the feelings and the temperature of the Committee on the matter. Had we been in the Chamber and not in Grand Committee, I would not have withdrawn the amendment but would have sought the opinion of the House. Here, I do not have that option, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 to 20 not moved.]

Lord Smith of Clifton moved Amendment No. 21:

    Page 3, line 1, at end insert—

"( ) The Lord Chief Justice shall consult each tier of the judiciary before appointing the judicial members."

The noble Lord said: The noble Lord, Lord Desai asked me to offer his apologies. He has had to appear before your Lordships' Select Committee on Economic Affairs and therefore seeks to withdraw Amendment No. 20. However, the amendment is almost identical to the one standing in my name. I therefore wish to move Amendment No. 21.

The judicial review indicated that the Lord Chief Justice should consult with each tier of the judiciary before appointing the relevant representatives; namely, the judicial members. We cannot find any provision in the Bill for such consultations to take place. If the proposals go through as they stand, we believe that the process will be completely dominated by the Lord Chief Justice and that he should be protected against any charges of cronyism. We think that he should consult with all levels of the judiciary. Not only would it be prudent to do so, but also it would protect his own position. I beg to move.

5.45 p.m.

Lord Mayhew of Twysden: Given that I have knowledge of three Lord Chief Justices, past and present, I would suggest with respect that it would be otiose to incorporate this into the Bill. I cannot imagine that any Lord Chief Justice would fail to consult with the judiciary in this context. It is important to ensure that, in drafting legislation, one

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does not seek to teach highly distinguished judicial officers—or, indeed, anyone else—to suck elementary eggs. That is my objection to the amendment.

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