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Baroness Scotland of Asthal: I could not have put it better than the noble and learned Lord, Lord Mayhew.

Lord Smith of Clifton: When lawyers get together they all turn into cronies. The case for this amendment has been validated beyond my wildest expectations.

Baroness Scotland of Asthal: I do not know whether the noble and learned Lord would feel the benefit of a lay member.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If Amendment No. 22 is agreed to, I must inform the Committee that Amendments Nos. 23 to 27 could not be called because of pre-emption.

Lord Glentoran moved Amendment No. 22:

The noble Lord said: Here we return to the "representative" debate. The amendment would strike out the subsection requiring the First Minister and Deputy First Minister to ensure that the lay members of the commission,

    "are representative of the community in Northern Ireland".

I do not believe that a duty should be placed on the First Minister and Deputy First Minister with respect to appointments to the commission. They are already under a discipline to come to an agreement about whom they will propose as lay members. I am not convinced that the responsibility for "representation" should rest on the shoulders of the First Minister and the Deputy First Minister.

I understand the current provision to imply that the appointment of lay members should be used to provide some kind of balance in the membership of the commission. By "balance", I believe that we mean political balance, either this way or that. I beg to move.

Lord Molyneaux of Killead: It has been made abundantly clear—at least it is the accepted wisdom of anyone listening—that none of this is going to happen anyway. Whatever happens in the election—some of us have a fair idea of what a disaster that is going to be—aside from the provision to enable the First Minister and Deputy First Minister to secure as far as possible lay members who taken together represent the community in Northern Ireland, the second part is like saying "God is good". It is not something that we should get excited about, given that the whole subsection and its meaning will be deleted after the Assembly election.

Baroness Scotland of Asthal: I understand that the premise of the noble Lord, Lord Glentoran, on Amendment No. 22 is that there should not be lay members, and if there are lay members, they should not be appointed by the First Minister or the Deputy First Minister. The proposal is that there should be such lay members and an important part of the

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arrangements is that they should be representative of the community. Therefore, it is important that the First Minister and Deputy First Minister should secure that the lay members are representative of the community.

To do otherwise would run contrary to the review recommendation, which requires the First Minister and Deputy First Minister to secure such representativeness. The review even specified that this should be achieved through legislative provision. That is why we have incorporated it in this way. A representative lay membership on the commission is central to securing public confidence in its procedures. The amendment would undermine the recommendation of the review and the foundation of that public confidence. I invite noble Lords to think again.

Lord Glentoran: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Desai had given notice of his intention to move Amendment No. 23:

    Page 3, line 3, after "Minister" insert "and Lord Chief Justice"

The noble Lord said: I apologise for being out of the Committee for a while. I was testifying before another Committee of your Lordship's House.

[Amendment No. 23 not moved.]

[Amendment No. 24 not moved.]

Lord Shutt of Greetland moved Amendment No. 25:

    Page 3, line 4, leave out "representative" and insert "reflective"

The noble Lord said: The debate is the same as we have had previously about the words "representative" and "reflective".

I do not need to repeat what I said earlier about the word "representative", which has certain connotations in Northern Ireland. I think that "reflective" would be a far better word. I beg to move.

Baroness Scotland of Asthal: We have canvassed this issue. The review drew a clear distinction between the judiciary, which it said should be reflective of the community, and the lay members of the JAC, which it said should be representative. In this context, the word "representative" has been used for numerous public bodies, including the Human Rights Commission and the Parades Commission. "Representative" does not mean that members will represent specific constituent parts of the community, but it means that an element there will represent each part.

We say that it would be preferable to retain the current definition of "representative", because it provides clarity on what we are talking about. Changing the language may cause greater confusion.

Lord Mayhew of Twysden: We cannot deal with the issue now, but when we return to this, will the noble Baroness provide us with the Government's definition of the distinction between "representative of" and "reflective of"? We are trying to achieve the appointment of sensible people in whom the rest of us

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will have confidence. We cannot legislate for that and say that nobody should be appointed unless they have confidence. The Government are striving for a word.

To distinguish between "representative" and "reflective" and say that one is more serviceable than the other does not hold water. If I hold up a mirror, I get a reflection. If I hold it in the right place, I get a reflection of the Minister, and very nice it is too, but it is an accurate reflection that permits of no flexibility or adjustment. "Representative" has the disadvantages that we have already discussed. If we are to rely on either of these words, will the Minister tell us what each of them is intended to mean and why one is better or worse than the other?

Baroness Scotland of Asthal: I am inclined to say—I speak entirely for myself at the moment—that "reflective" and "representative" are absolutely interchangeable. The review separated the two out. It used "reflective" in relation to the judiciary probably because it would be anathema to suggest that judges would represent certain parts of the community. Because of the confusion in that regard, I judge that it is likely that it used "reflective" and is more comfortable in relating to "reflective" than to "representative".

The reason why "representative" is preferred is because that word has been used elsewhere and become a term of art. If we now start introducing a different term, there is likely to be a semantic debate about when something is reflective or representative. In view of our earlier discussion, I understand why we were talking of the judiciary being reflective of a community—that is a more sensitive word to use when describing where a judicial officer may come from but not what he will in fact do. We say that "representative" should remain because there is a degree of clarity about the way in which that word has been interpreted and we would like to avoid semantics if at all possible.

Lord Smith of Clifton: Semantics is largely what Northern Ireland is all about! Moreover, "representative" across the Irish Sea means something rather different from what it means in Great Britain.

I would like to speak to Amendments Nos. 26 and 27, which are similar although there is a slight difference. The amendment standing in my name adds "and ethnicity" whereas that standing in the name of the noble Lord, Lord Rogan, says "and religion". While we agree on the inclusion of "agenda" in this context, it is important to remind people—not just those appointing the lay members—that there is much more to Northern Irish society than religious groupings. It is all too easy to leave out significant sections of the population. While it is good that we and the Ulster Unionist Party agree that lay members should be reflected in terms of gender, we would not agree to the addition of the word "religion" because

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the whole point of the amendment we are putting forward is to demonstrate that there is more to Northern Irish society than religion.

Baroness Scotland of Asthal: The noble Lord rightly highlights the distinction between Amendments No. 26 and 27. The review recommended a provision similar to that used by the Human Rights Commission; that is what the Government have implemented in the Bill. The Government have always been clear that representativeness covered all of those issues, although there is a limit to how much can be achieved by a group of only five people. The comments that I made earlier about "representative" being an inclusive term relate directly to this amendment as well.

Lord Rogan: On reflection, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

6 p.m.

Lord Rogan moved Amendment No. 28:

    Page 3, line 4, at end insert—

"(8) In appointing persons to be lay members, the First Minister and deputy First Minister must so as far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure."

The noble Lord said: I was hoping that the noble Lord, Lord Maginnis—the sophisticated Lord Maginnis—would move the amendment but unfortunately he is not here.

I am struggling to put into words what we mean when we say "sophisticated understanding" and "proven experience", although "proven experience" of selection procedure is easier. Patently, those lay persons need to have some understanding of legal matters and of the kind of persons over whom they are sitting in judgment. The amendment simply seeks to highlight the necessity for that kind of person to be chosen. I beg to move.

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