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Baroness Farrington of Ribbleton: My Lords, I understand that Amendments Nos. 5, 6 and 7 are grouped together.

Lord Mayhew of Twysden: My Lords, I thank the noble Baroness. They are not grouped on my list—out of date, as usual. It is most reassuring that, in spite of myself, I am in order.

I remain unhappy about the Judicial Appointments Commission. I need not repeat that we have a highly respected judiciary. It is therefore worthwhile asking ourselves how that judiciary has been appointed throughout 30 or more years of supreme test. It is probable that the high regard in which the judiciary is held, on the basis of its record, arises at least in part from how it has been selected and appointed.

That system is operated by the noble and learned Lord the Lord Chancellor. If they do not know—for it is the fact—everyone will doubtless assume that the Lord Chancellor exercises enormous care in selection and in consultation with the people who are most likely to know whether a potential judge, a candidate for the judiciary, will make a good job of it. Those people have experience of the candidates through working with them, having them appear before them and being their colleagues. They are consulted on the basis of their relevant experience. In the context of public confidence in Northern Ireland, that system has the advantage of operating not only away from the battlefield but above the battle. That is no small advantage.

So the question is, "Why change?". If we are up against our old friend, perception, I contend that perception looks both ways. I do not know why the advantages that I have identified are thought to be outweighed by an untried and—I judge—unwanted innovation. Within the innovation, there is a built-in cause for anxiety. By what criterion is a lay member of the commission expected to discern the relative merits of a candidate for the judicial Bench? No matter now diligent that lay member was—in this country, people are very diligent, when appointed to such offices—he could, in practice, not know anything that could bear

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on the question of the merit of a candidate. Yet, the clause demands that candidates should be appointed solely on merit. How is a layperson to discern the merits or demerits of a particular candidate? I am not counting barristers or solicitors, who come from within the profession; they are dealt with as a separate category by the clause.

It is foreseeable that the inclusion of any lay members in the commission—let alone five—will conduce to a lack of confidence, rather than add to public confidence in the system. I say that because the public are clever enough to know that a lay member cannot, for the reasons that I gave, discern much in the way of merit. The public will assume that those members will, probably, have had regard to factors other than merit, notwithstanding the fact that the clause says that any appointment must be made solely on merit.

Lay members cannot assess the merit of a potential judge, any more than they could judge the merit of a potential surgeon. There are not many of us in the Chamber who would wish to see our potential surgeons selected because they reflect the community and chosen, in part, by the laity. Will it not be assumed that the lay members have been influenced by something else? People in Northern Ireland have too much experience of such "something elses", and it is a mistake to allow them to taint a hitherto unblemished system, particularly such a vitally important one.

Those are my misgivings about the commission as it is to be set up. If we are to have lay members, there should be four, not five. The judicial members should be not five, but six.

Lord Brooke of Sutton Mandeville: My Lords, I support what my noble friends have said about the amendment. I did not have the pleasure and the privilege of being present at the first day of Grand Committee. I was in attendance upon the American ambassador, who was going about his lawful occasions.

I missed this debate in Committee, but I have, of course, read it. In moving the amendment, my noble friend Lord Glentoran quoted the review and its suggestion as to what the commission should consist of. The noble Baroness, Lady Scotland of Asthal, will recall that the review recommended four or five lay members. When the noble Baroness replied to my noble friend, she sensibly recounted how the commission would be made up and added some detail about the judicial members. She concluded that analysis with the following words:

    "We think we have the balance right".

Now, because I was not present in Grand Committee, I cannot know whether the charm with which the noble Baroness made that remark and subsequent remarks enabled her to skate over some slightly thin ice in the logic of her argument. On the basis of my experience with her on other occasions in Grand Committee and today, I would have no difficulty in believing that that charm was exercised. However, after she said those words, she did not

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adduce any further argument as to why the balance was right and why five lay members were better than four, a contingent suggestion made by the review.

The noble Baroness did speak about why lay members were useful on such a commission, and she concluded that part of the analysis with the following words:

    "The five lay members may add something of real value".—[Official Report, 11/6/02; col. CWH 23.]

I agree that, in logic, it is possible that a fifth member would add 25 per cent—or more—to the value of the work done by the other four, but the noble Baroness's concluding statement does not, of itself, reinforce her earlier remark about having the balance right. I hope that the noble Baroness will fill out her argument as to why the balance is right. I diffidently suggest that she did not do that in Grand Committee.

Lord Desai: My Lords, I find the argument somewhat strange. As far as I can see, there will be the Lord Chief Justice and five commissioners nominated by the Lord Chief Justice. There will also be a barrister and a solicitor. From the trade union of lawyers and judges, there will be seven people, plus the Lord Chief Justice. There are five lay members, so my arithmetic tells me that things are stacked eight to five against lay members.

It could be argued that there should be no lay members, as the noble and learned Lord, Lord Mayhew of Twysden, suggested. That is a different argument, which could, perhaps, be made in the context of another Bill or another devolved administration. However, in this context, it is possible to suggest that, good as the judiciary has been in the past 30 years, it would still be better to have a judiciary that was not only meritorious but acceptable to the community.

I shall cite the example of what happens in England. We might think that the noble and learned Lord the Lord Chancellor and his predecessors, in their infinite wisdom, always appointed the best people. However, those people are, largely, men—white men—probably from Oxbridge. They may be meritorious, but there is little regard for other elements. It is not said that women or people who have not been to Oxbridge or people from the ethnic minorities do not have merit; it just so happens that our beautiful, neutral, impartial system ends up getting only Oxbridge people. It happens in every system.

In Northern Ireland, more than anywhere else, a system that was—from one point of view—above the battle, as the noble and learned Lord, Lord Mayhew of Twysden, said, was—from another point of view—part of the battle. We must let bygones be bygones, and it is for that reason that I suggest that there is no conflict between selecting people on merit and having a lay element to tell the specialists that, in considering two people of merit, we should think of other factors. It is easy for a closed trade union of specialists to select

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only their own clones. Perhaps we ought to change; perhaps the current balance—eight to five—is not all that bad.

Lord Tebbit: My Lords, I never like to disagree with the noble Lord, Lord Desai. He is unique—particularly so today, as he appears to be supporting the Government's position from the Back Benches. I am also reluctant ever to take the part of the lawyers against the laymen. The noble Lord, Lord Desai, is right: the lawyers are a difficult closed shop. Frequently, they are highly dangerous people. We suffer far too much with them. However, even with the—I almost said prejudices, but they are not—feelings borne of experience that I have, when called upon to decide whether I would trust members of the judiciary and the legal profession or the nominees of the First Minister and the Deputy First Minister, particularly thinking of who they may well be in a couple of years' time, I have to come down on the side of the lawyers. It hurts me to say so and I hope that it does not set a precedent for me, but that is the way I feel.

5.30 p.m.

Lord Kilclooney: My Lords, independent persons in Northern Ireland are an endangered species. I have served on various boards and commissions in Northern Ireland with them. At present, I serve on a new one called the Northern Ireland Policing Board and we have nine so-called "independent" members. They were recently involved in the appointment of a new chief constable in Northern Ireland, but they had no experience and therefore had to be trained. These independent members spent many weeks undergoing training on how to appoint a chief constable.

They then proceeded with the selection of a chief constable and what happened was absolute chaos. First, people involved in the appointment leaked the events to the press, in particular the Irish Times in Dublin. Secondly, the appointment was seen to be biased. Thirdly, one of the candidates threatened to take a case for religious discrimination. I have to say that my experience of independent members of the new Northern Ireland Policing Board is not very good. On Saturday morning, one so-called "independent" member actually took part in a BBC Radio Ulster programme on behalf of the SDLP. So much for his independence.

I should like to return to the system we had previously in devolved Northern Ireland pre-1972 whereby the Lord Chancellor appointed those judges, not the people who present themselves under the facA˙ade of being independent.

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