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Lord Tebbit: My Lords, the noble Baroness states that there is nothing particularly new about the concept of lay persons in this role. What is rather different here is that it will not be a Minister in a department nominating officials to serve as lay persons, but gentlemen with a long history—in at least one case-of involvement in terrorism.

Baroness Scotland of Asthal: My Lords, on that point, I cannot add anything beyond the comments I have made today and previously in Grand Committee. To recite the arguments again would not take us any further.

As I have said, we think that we have the balance about right. I see that the noble Lord, Lord Brooke, wishes to speak.

Lord Brooke of Sutton Mandeville: My Lords, the Minister says that they have got the balance right, but the review body put forward the suggestion that if you took the smaller figure, four, you would have four lay members, two members of the professional bodies and six judicial members. The commission would have been equally split and the Lord Chief Justice, sitting as chairman, would have the deciding vote. By moving to

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five lay members, that deciding vote of the Lord Chief Justice has been taken away. Those who are non-judicial—a phrase which appears in the clause and the schedule—would be in the minority in the group.

Baroness Scotland of Asthal: My Lords, five was chosen because it was felt that that number would better reflect the breadth of view needed through the lay membership. We do not accept that there will be the straight vote indicated by the noble Lord in his summation of how it will fall out. Of course greater weight should properly be given to the views of those with the widest knowledge of these subjects. It is likely that that will rest heavily with the Lord Chief Justice. Ultimately, his recommendation will determine who is appointed. I am sure that noble Lords will agree that it is highly unlikely that the Lord Chief Justice will exercise his judgment in a capricious or ill thought-out way. The commission will thicken his understanding and bring perceptions and information that he should properly take into account before making his determination, but it would be wrong if I allowed the House to proceed on the premise that there would in some way be a straight vote.

Lord Maginnis of Drumglass: My Lords—

Baroness Scotland of Asthal: My Lords, I remind the House that we are at Report stage and not in Committee.

To conclude, The review recommended "four or five"—it did not state "four"—and, in accordance with the review's recommendation, the Government have chosen five.

Lord Glentoran: My Lords, I do not know whether it is out of order but the noble Lord, Lord Maginnis, wanted to speak before the Minister sat down.

Lord Maginnis of Drumglass: My Lords, I am grateful. My recent arrival in the House means that I am unpractised in its traditions, for which I apologise.

Before the Minister sits down, perhaps I may take up a point that she has made. I believe that she has lumped together the judicial members of the panel with the barrister and solicitor and suggested almost that they were of equal status. Most noble Lords will agree that among the judiciary—I have not known a case where it has been otherwise—there has been an acceptance that the authority of our courts derives from the Crown. But that has not been the case with our barristers. I believe that, quite recently, two barristers refused to take silk because they were asked to take the oath. If that is the case, then among that stratum of the legal profession—there is no reason why it should not apply to solicitors—there is something which places political objectives and political aspirations above and beyond the judicial considerations. I raise the issue to alert the Minister to that particular point.

Baroness Scotland of Asthal: My Lords, the point that I thought I had made clearly—I am content to

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make it again—is that the barrister and solicitor are not lay members because they are legally qualified. As such, they do not fall into the definition of "lay". They have a separate category. For the avoidance of doubt, the review recommended four or five lay members and around five judicial members. We chose five lay members and six judicial members. We have faithfully maintained the balance recommended in the review and I hope that your Lordships will be content with that.

Lord Kilclooney: My Lords—

Lord Williams of Mostyn: My Lords, I am sorry to intervene but the rules are clearly set out and we have not been following any of them. I know that this is a courteous House but the time has come when I must intervene. The rules in regard to debate on Report are fully set out in the Companion at paragraphs 6.121, 6.122 and 6.123 on pages 128 and 129. We had an extensive Grand Committee and no one can suggest that the issues have not been fully debated. We must abide by our rules on Report as a general courtesy to all Members of the House.

Lord Glentoran: My Lords, I thank all noble Lords and noble and learned Lords who have taken part in this extensive debate. I start where I propose to end. In an almost arrogant way, I am quite convinced—if I come across as arrogant, I make my apologies—that the Opposition have clearly won the intellectual argument today. There is absolutely no justification or clear argument for why the balance of membership of the Judicial Appointments Commission should be as it is. The noble Baroness is a good friend of mine and she knows that I would never wish to be rude to her, but she has tried to fudge the numbers and to pretend, in Northern Ireland of all places, that a barrister and a solicitor are something to do with the judiciary.

The Government strongly opposed their joining in the independence clause at the beginning of the Bill. The Minister said in Grand Committee that they cannot be independent; that we cannot organise a system where we can see that they are independent. They are, quite rightly, not independent—and they never should be again in a community such as Northern Ireland. The various groups of people need barristers and solicitors who are prepared to work within the thinking, environment and political aspirations of the different communities. So to pretend that a barrister or solicitor in Northern Ireland is as independent as a member of the judiciary—especially when the suggestion is made by a member of the profession—I find slightly difficult.

Another issue which concerns me is again down to basic living in Northern Ireland. I believe in my heart of hearts that the Government are wrong. If we go ahead and allow a majority of lay people on the commission, the appointments process will boil down to political bargaining. It will be the "Your turn this time, my turn next time" syndrome. I accept that the merit principle is there—of course it is— but the Minister and other noble Lords have said that if there

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are two super candidates—although she did not say where they may come from politically—it is highly likely that they may well be the best two candidates available. But it is also highly likely that one will come from one community and the other from the other. It is also highly likely that everyone will know who is outstandingly the better of the two candidates. But that is not what will decide the appointment. The decision in Northern Ireland will be made through political bargaining within the lay majority of the commission.

That is the sadness of it. I do not say this with any pride. I see the Minister shaking her head, and I feel exactly the same way as she does. It is a sadness, but it is a reality. To be arrogant once again, it is very rare that I have been as positive from this Dispatch Box about things that happen or will happen in Northern Ireland. But on the occasions when I have been, I am afraid that I have been proved right. I wish to test the opinion of the House.

6 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 94; Not-Contents, 170.

Division No. 2


Ackner, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Blatch, B.
Blood, B.
Boardman, L.
Bowness, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Colwyn, L.
Cooke of Islandreagh, L.
Cope of Berkeley, L. [Teller]
Cox, B.
Craig of Radley, L.
Craigavon, V.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Fitt, L.
Fowler, L.
Gardner of Parkes, B.
Gilmour of Craigmillar, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Hanham, B.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holderness, L.
Hooper, B.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Jopling, L.
Kilclooney, L.
Kimball, L.
Laird, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Maginnis of Drumglass, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Northbrook, L.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Rogan, L.
Rotherwick, L.
St John of Fawsley, L.
Seccombe, B. [Teller]
Sharples, B.
Shaw of Northstead, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Tebbit, L.
Trefgarne, L.
Trumpington, B.
Tugendhat, L.
Vinson, L.
Vivian, L.
Wakefield, Bp.
Warnock, B.
Weatherill, L.
Williamson of Horton, L.


Acton, L.
Addington, L.
Ahmed, L.
Alton of Liverpool, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barker, B.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkender, B.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Geraint, L.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Grocott, L. [Teller]
Hamwee, B.
Hardy of Wath, L.
Harris of Haringey, L.
Harris of Richmond, B.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hylton, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jacobs, L.
Jay of Paddington, B.
Jeger, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Michie of Gallanach, B.
Milner of Leeds, L.
Mitchell, L.
Morgan, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Newby, L.
Northover, B.
Orme, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Rooker, L.
Russell, E.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Scott of Needham Market, B.
Serota, B.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Wallace of Saltaire, L.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)

Resolved in the negative, and amendment disagreed to accordingly.

1 Jul 2002 : Column 55

6.11 p.m.

[Amendments Nos. 6 and 7 not moved.]

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