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Lord Glentoran: In that regard, who would be the judge?

Baroness Scotland of Asthal: That demands a sophistication of understanding. That begs a very large question indeed!

The importance of having a lay element is to bring into the equation those who do not necessarily have an in-depth understanding of legal issues but who bring different perspectives. In the appointment procedures that are adopted in many other fields, many eminent people are invited to become lay members who do not have an expertise in that field but they are able to ask some fundamental questions, such as, "Why?". Those of us who have been subject to that piercing, "Why?" have often found it a salutary question to be asked. Therefore, we believe that lay members who do not have a particular expertise have a valuable contribution to make. How much lay members can contribute was graphically demonstrated in an earlier

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interchange, when the noble and learned Lord, Lord Mayhew, and I were in total union on a point; the noble Lord who moved the amendment could well have benefited from a lay member's input.

Lord Rogan: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Schedule 2 [Judicial Appointments Commission]:

Lord Rogan moved Amendment No. 29:

    Page 72, line 22, leave out "may" and insert "must"

The noble Lord said: In moving Amendment No. 29, I shall speak also to Amendment No. 30.

Amendment No. 29 removes the discretion of the First Minister and the Deputy First Minister to terminate a judicial appointee's membership on the recommendation of the Lord Chief Justice. The issue is whether the Lord Chief Justice should make a recommendation to terminate or whether it would be inappropriate to do so.

This matter involves an issue that we shall discuss in more detail when we consider acting jointly. As the Bill is currently drafted, either the First Minister or the Deputy First Minister has a veto on removal even if the Lord Chief Justice recommends that removal action should be taken. That is plainly ludicrous.

Amendment No. 30 makes a similar change in respect of lay members. In particular, I am concerned with paragraph 2(4)(b), which is the criminal offence clause. As the Bill stands, either the First Minister or the Deputy First Minister may veto the removal of a person who has been convicted of a serious offence. I do not believe that that is what was intended.

Further, questions arise in relation to the provision in paragraph 2(4)(a) relating to a person "without reasonable excuse". If such a person has,

    "failed to exercise his functions for a . . . period",

should he be permitted to stay? Again, there is a de facto veto by the First Minister or Deputy First Minister. I beg to move.

Baroness Scotland of Asthal: As the noble Lord indicated, Amendments Nos. 29 and 30 seek to remove any discretion from the First and Deputy First Ministers in the case of dismissing lay or judicial members of the Judicial Appointments Commission.

With regard to judicial members, the Bill provides that the First Minister and the Deputy First Minister may remove a member on the recommendation of the Lord Chief Justice. With regard to lay members, the Bill provides for a dismissal in certain cases. Government policy is clear. In these cases we would expect the First Minister and Deputy First Minister to act, but we need to trust them and not to tie their hands by compelling them to dismiss a member automatically.

There are a number of reasons for dismissal of lay members, which could differ in their seriousness. For instance, if a lay member had been convicted of a serious offence, no doubt everyone would agree that he

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or she should no longer be a member of the commission. However, being convicted of a minor driving offence—for instance a defective headlamp—would be unlikely to merit a removal from the commission. We should leave the First Minister and Deputy First Minister some discretion in such matters. I hope that explains why some limited flexibility is necessary in this regard.

Viscount Brookeborough: I support the amendments because retaining the current situation means accepting that perhaps the Lord Chief Justice will be the most extraordinary person who, as a chairman of a committee and holding the post he has, has not good reason for trying to run the commission, and he will only suggest that if the running of that commission is really unworkable. For the First Minister or Deputy First Minister not to support him would be plainly ludicrous and, should the Chief Justice put it forward, I think he must do it.

Lord Rogan: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Baroness Scotland of Asthal moved Amendment No. 31:

    Page 74, line 10, leave out from "Commission" to end of line.

The noble Baroness said: This is a minor and technical amendment. The words we propose to delete are unnecessary, as the First Minister and Deputy First Minister will only ever be able to acquire money appropriated under the Assembly Act. They crept into the Bill by error, although they of course do no harm.

We are also tabling an amendment to Clause 22, which will make further provision about money being provided by the First Minister and Deputy First Minister. That provision does not repeat the unnecessary words. We therefore think it right and sensible to delete these words in order to ensure that the two provisions dealing with funding by the First Minister and Deputy First Minister are consistent. I beg to move.

On Question, amendment agreed to.

Lord Rogan moved Amendment No. 32:

    Page 74, line 33, at end insert—

"( ) Committees or sub-committees may not include persons who would not be eligible to be members of the Commission."

The noble Lord said: I shall speak to Amendments Nos. 32 and 33. Committees and sub-committees may have the powers of the committee delegated to them, and they do not need to contain members of the superior committee. Therefore, the amendment to exclude convicted criminals would have no effect unless the same restriction applied to members of these sub-committees. We have heard numerous arguments—I will not allude to them again—why we do not want to have criminals holding judicial office or appointing persons to judicial offices.

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Amendment No. 33 is aimed at curtailing the rather extensive powers to delegate by the commission. It seems extraordinary to me that sub-committees made up of non-members may in effect circumvent the appointments commission. What is the purpose of the commission if its members may be uninvolved in selection? Who would be involved in that selection? I beg to move.

Lord Glentoran: I rise to support the amendment moved by the noble Lord, Lord Rogan, and to speak to Amendment No. 34, tabled in my name. I am puzzled as to why the Government feel the need to give any delegation authority to the commission. It does not have a particularly big task; not that many judges and people are to be appointed. We have demonstrated our concern about the members of the commission in our debates this afternoon.

If those debates, and whatever ultimately is legislated for in this Bill, can be thrown over by the Commission, by dint of the authority to delegate functions conferred on it by this Schedule, I wonder what the Government are doing. I had not given this matter sufficient thought ahead of our deliberations, but I am extremely concerned about the whole matter of delegation. I shall return to it on Report.

Turning to Amendment No. 34, I can see no logic at all in Clause 12 and I do not understand what it is doing in the Bill. Why is there a duty to have a lay member of a committee or sub-committee, but no parallel duty to have a judicial member, or someone who is eligible to be a member? Frankly, and with due respect to the department and the draftsman, I think that Clauses 11 and 12—Clause 12 in particular—are a nonsense. They should not be a part of the Bill because there is no need for them. I shall be interested in the Minister's explanation as to why Clause 12 is so worded and what it is intended to mean.

Baroness O'Cathain: As a matter of clarification, what do these sub-committees do?

Baroness Scotland of Asthal: The provision to provide the sub-committees is permissive; it does not demand that such sub-committees should be set up. It is important to note that the system will not deal simply with a small number of judicial appointments. It will also deal with the appointment of tribunal and other chairmen; those are quasi-judicial tribunals. Therefore if we are seeking to construct a system which, in due course, will undertake the appointment of the whole of the judicial system below the level of High Court judge, then we have to build in a degree of flexibility to enable the commission, if it so chooses, to establish committees or sub-committees to deal with specific issues.

It also enables specialists in matters of employment, appointments or other specialist provisions, to be invited on to the Judicial Appointments Commission in order to help them by giving advice in relation to a specialist area. That will not necessarily be drawn upon, but it creates a capacity for them so to do. The

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Bill provides a permissive provision that the commission may establish committees or sub-committees which may include persons who are not members of the commission.

The Bill also states that where committees deal with appointments, they must include a member of the commission and, unless the person is a lay member, a person who is eligible to be a lay member as well. This latter amendment was made in the light of Members' views that it was appropriate for there to be a member of the commission on all committees dealing with appointments.

Amendment No. 32 appears to go considerably further in that it requires committees of the Judicial Appointments Commission to operate the same membership criteria as that of the full commission. In practice, however, the only persons who would be prevented from membership of committees would seem to be retired judges, barristers or solicitors. I am not sure why such lengths have been pursued to achieve that aim. Given that we have already sought to put in place an appropriate relationship between the full commission and its committees, I would invite noble Lords to consider that the amendments should be withdrawn because they are not necessary.

Perhaps I may turn to Amendment No. 33. The amendment would prevent the commission from delegating any of its functions,

    "unless approved by the majority of the judicial members of the Commission".

Other amendments sought to increase the judicial membership of the commission and, in this amendment, noble Lords are, perhaps, displaying a similar wariness about the role played by lay members. I do not want to go back to the review, but it is important to remember that the review went into some detail in striking the right balance between lay and judicial members of the commission and was clear about the benefit that lay people could bring to the appointments process. Those benefits apply across all the functions of the commission, and we are not convinced that lay members should play a lesser role in deciding what functions the commission should delegate. I ask that this amendment should also be withdrawn.

We are a little surprised that noble Lords should seek to remove paragraph 12 with Amendment No. 34. In Committee in another place, honourable Members expressed concern about the fact that sub-committees of the Judicial Appointments Commission could be made up entirely of persons who were not members of the commission. We sought to address that issue. The schedule was originally drafted without a requirement for commission members to sit on committees and sub-committees, as it was felt that that could be an unfair imposition on their time. We are now in a better position to assess the likely workload of the commission and accept that the degree of flexibility envisaged in the original drafting may not now be required. As a result, we took on board the view of the other place and amended paragraph 12 to make it clear that, when the commission delegated the power to select or recommend a person for appointment to a

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committee or sub-committee, such committees must always include a member of the commission, unless he or she is a lay member or a person eligible to be a lay member.

In many selection processes, sub-committees do the first sift, and the full committee or commission makes the decision. We hope that there will be a large number of applications to the commission for the posts, that there will be a deal of competition and that it will not be just a narrow selection process. If that happens—particularly as a result of the work that we hope that the commission will do on outreach to make sure that there is gender and community balance—it may be that the working practices of the commission will demand that certain sifting and certain preliminary work is undertaken by committees, as opposed to the full commission sitting together. It was only for that reason that we felt it might be necessary. If we consider the appointment of tribunal chairpersons and all the more minor—that is not meant to be derogatory—judicial appointments, we can see that there will be a considerable body of work for the commission.

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