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Baroness Scotland of Asthal: My Lords, again, we debated this group of amendments in Committee and I am afraid that there is little more that I can add. Overall, the effect seems to be to turn over to the Lord Chancellor the role of the First Minister and Deputy First Minister in the process of appointing judges.

Perhaps I may clarify the purpose of the legislation. In the Bill, the First Minister and the Deputy First Minister have the role recommended for them in the review, which recognised the importance of a carefully managed degree of political accountability. The importance of this role was also discussed at length in another place. In the devolved scenario we must give the First Minister and the Deputy First Minister in Belfast the same trust as we extend to the Lord Chancellor in Westminster. I am sure that noble Lords will agree that devolving justice matters, including judicial appointments to the Northern Ireland Assembly, would be a positive and welcome development that would help to underpin the stability of that institution.

We have spoken many times during the course of the passage of the Bill about the important principles, such as independence. The principles at stake here are also just as important. We are talking about trust. It cannot be emphasised enough. When a decision is taken to devolve, in the light of security and other relevant considerations, we must demonstrate our commitment by trusting the devolved administration with the outworkings of that decision. We cannot take one step and not the other. For that reason, I ask for these amendments to be withdrawn.

7 p.m.

Lord Rogan: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 16 to 26 not moved.]

Clause 5 [Appointment to listed judicial offices]:

[Amendments Nos. 27 to 34 not moved.]

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Baroness Scotland of Asthal moved Amendment No. 35:

    Page 4, line 33, leave out from beginning to "office" in line 34 and insert—

"(8) The Commission must, so far as it is reasonably practicable to do so, secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office.
(9) But the selection of the person to be appointed, or recommended for appointment, to the listed judicial"

The noble Baroness said: My Lords, on behalf of my noble and learned friend the Lord Privy Seal, I move the amendment standing in his name on the Marshalled List. I am grateful to my noble friend Lord Desai for focusing our attention on this issue during Grand Committee.

The idea of a statutory requirement to secure a reflective judiciary was discussed extensively both in another place and at Grand Committee. The notion has been resisted in the past because judges must not be appointed with regard to representativeness or reflectiveness, but exclusively on merit. Judges must not be appointed to "even up the numbers", as distinct from being appointed on merit. Judges do not represent or reflect parts of the community but the whole community, and must do justice according to law for the benefit of the whole community.

The review did not contradict this principle. It recommended that merit should remain paramount. We believe that everyone present in the Chamber would agree with that principle. However, as there is a body of support for the idea that the objective of securing a reflective judiciary should be given statutory expression, we undertook to revisit this matter on the understanding that any provision would need to be subject to the principle of appointment on merit.

We have reconsidered the matter. We are now in a position to offer noble Lords a wording that reflects the recommendation of the review. Perhaps I may remind the House of the review's recommendation. It recommended that,

    "it should be a stated objective of whoever is responsible for appointments to engage in a programme of action to secure the development of a judiciary that is reflective of Northern Ireland society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit".

This amendment requires the Judicial Appointments Commission, so far as it is practicable, to ensure that a range of candidates reflective of the community are available for consideration for appointment to listed judicial offices. There is, however, strong competition for appointment to the judiciary and any appointment must be made on merit. The Government have made it clear that it is desirable to have a reflective judiciary but that is to be achieved without prejudice to each and every appointment being made on merit.

First, as I said earlier, there was a concern that any reflectiveness provision could be taken to undermine the merit principle. The review is clear that this should remain paramount. The amendment is equally clear:

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any selection of the person to be appointed, or recommended for appointment, to the listed judicial office must be made solely on the basis of merit. Secondly, the provision requires that a range of candidates reflective of the community will be achieved only in,

    "so far as it is reasonably practicable".

The new provision focuses on securing the pool. Together with the changes made by the Bill to the eligibility criteria and the commitment to a programme of outreach outlined in the review implementation plan, the amendment demonstrates the Government's commitment to a judiciary appointed solely on merit, as I have said on a number of occasions, while giving every encouragement to those eligible from across the whole of society to apply for judicial appointment. I beg to move.

Lord Hylton: My Lords, I have a purely drafting point to make. Can the noble and learned Baroness—the Minister—confirm that the new subsection (9) to Clause 5 as outlined in the Government's amendment is correctly printed on the Marshalled List? On the face it, it does not appear to me to make sense.

Lord Brooke of Sutton Mandeville: My Lords, before the noble and learned Baroness, Lady Scotland, responds—I apologise for not having referred to her as "learned" when I spoke previously—perhaps she could answer a separate question while advice is being secured in response to the drafting matter raised by the noble Lord, Lord Hylton. Once upon a time, Secretaries of State on arrival in Northern Ireland were given three large dossiers to read. Part of one of those dossiers included words that the Secretary of State should avoid using. My recollection of 13 years ago is that Secretaries of State were advised that they should not refer to "the community" but to "both sides of the community".

I realise that times change and that a totally different form of language may apply 13 years later. Indeed, it is possible that that has been so since the Belfast agreement. However, if the wording used has changed in the intervening period, it would be helpful to know whether there is a definition of the phrase "reflective of the community" anywhere else in the Bill.

Lord Alton of Liverpool: My Lords, before the Minister responds, perhaps I may follow on from the question just raised by the noble Lord, Lord Brooke. Varying descriptions are used by academics of the word "merit". I wonder precisely how the Government intend to define the word. Incidentally, I believe that they are right not to derogate from that principle. They are also right to use the word "reflective" rather than "representative". However, there will be concern about what the Government mean by the use of the word "merit".

Lord Mayhew of Twysden: My Lords, I must be careful now, because I must not stand up to speak after the Minister has replied. If I may say so, I think that

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this amendment is rather a clever piece of drafting. It will be completely unenforceable. No one will be able to complain that something was not done when it was "reasonably practicable" for it to be done, or vice versa. However, I believe that it serves a number of gods whose wrath it is important not to incur. I particularly endorse the use of the word "reflective" rather than "representative" for the reason given by the noble Baroness, Lady Scotland, during the Grand Committee proceedings. She said that it was,

    "a more sensitive word to use when describing where a judicial officer may come from but not what he will in fact do".—[Official Report, 11/6/02; col. CWH 35.]

If you talk about some being "representative", it may imply that he will do what he is told to do.

The amendment is a complex, but necessary, piece of drafting. I congratulate all concerned on their ingenuity. As I said, I do not believe that it will help anyone, but it is a necessary addition to the Bill.

Lord Desai: My Lords, I thank my noble and learned friend for dealing with the question that I raised in Grand Committee.

Baroness Scotland of Asthal: My Lords, I thank the noble and learned Lord, Lord Mayhew, for his compliment—the full force of which I take on board—in relation to the ingenuity of the Government on this occasion.

I shall deal with the questions in reverse order. The noble Lord, Lord Alton, asked what "merit" means. It means the worth and fitness for judicial office. There is no precise definition of "merit", but it is clear that it means the best person to fit the job or the person who is clearly best suited for that particular judicial office and the excellence that is required, as opposed to any other criterion.

The noble Lord, Lord Brooke, raised a question about the word "community". "Both sides of the community", as the noble Lord will know, tended to refer to the religious communities in Northern Ireland—both Catholic and Protestant. The word "community", as used here, has a much wider meaning and refers to the peoples of Northern Ireland. Although there are two dominant communities in that country, there are also others. It refers to the totality of the community as opposed to just the two sides.

On the issue of "reflectiveness", I hope that I have dealt with the question raised by the noble Lord, Lord Hylton. I am trying to remember what it was.

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