---

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): As the noble Lord, Lord Kingsland, signalled, I am accepting these amendments. As noble Lords know, we have indicated our intention to legislate in relation to the office of the Lord Chancellor and a Bill will be introduced before long. Meanwhile, we can see both the tact and the purity of continuing to refer to the Lord Chancellor while he is still in that position. It also has the slight advantage, from my perspective, that I do not need to argue different positions in Parliament on almost sequential days. So I am happy to accept the amendment.

As to the interesting and difficult question raised by the noble Lord, Lord Kingsland, the short answer is that, quite clearly, the Bill itself takes precedence over

15 Jan 2004 : Column 684

the Explanatory Notes. However, I should like to reflect in a little more detail on whether I have done sufficient justice to the depth of the question in that respect.

Lord Kingsland: I am most grateful to the Minister for accepting the amendment and look forward to the consequences on Report of his further reflections.

On Question, amendment agreed to.

On Question, Whether Clause 1, as amended, shall stand part of the Bill?

11.45 a.m.

Lord Maginnis of Drumglass: I very much welcome the Government's decision to accept the amendments tabled in the name of the noble Lords, Lord Glentoran and Lord Kingsland. I was unable to speak on Second Reading due to illness, but I should like to make a few short points at this stage.

I wonder whether it is possible to think of another example where a democratic government—with all the facilities that implies, and with such extensive and expert advice as they have at their disposal—have had the capacity to make such complete and utter blunders as this Government have done with two important pieces of social legislation. In my short experience in your Lordships' House I have seen a new Northern Ireland Police Bill brought back for revision within a three-year period, and I now find a new justice Bill returning within less than two years. That is bad enough, but in both cases such incompetence has followed a comprehensive review in the areas under consideration.

Worse is to come. It appears that such is the perversity of the Government that both revisions are bound only to compound the difficulties and mistakes. We already see the inadequacies of our policing legislation where crime in Northern Ireland is having an increasingly negative effect on our society. As I said, I realise that this is not a Second Reading debate. However, I think that I should make these general points now rather than doing so repeatedly throughout our consideration in Committee. I apologise and ask for your Lordships' leave.

In 2002, I cautioned against the idea of vesting in the First Minister and Deputy First Minister in Northern Ireland any authority which until then had been within the bailiwick of the Lord Chancellor. I explained why it should not happen, I emphasised why it would fail, and I was right—we have failure. I am a layman in this area, but the noble and learned Lord, Lord Hutton is not. Today he is entrusted with a matter of national and international import. Yet, on Second Reading of the 2002 Act, he cautioned:

"Under the changes set out in the Bill, the First Minister and Deputy First Minister, at the present time a unionist and a nationalist, who are two very active politicians, will have a very important part to play in appointments. They will also appoint the lay members of the Judicial Appointments Commission. There is

15 Jan 2004 : Column 685

bound to be some concern that political considerations will come into play in making appointments".—[Official Report, 3/5/02; col. 970.]

Bearing in mind the observation of the noble and learned Lord, Lord Hutton, I ask the Minister whether political appointees will not in turn be bound to make political appointments themselves. Any clause removing reference to the First Minister and Deputy First Minister should do so on the basis that, as the review advised, no commission should be set up prior to the devolution of criminal justice. The recent election has shown how more people are becoming disappointed with the way in which the Belfast agreement is being distorted by government. Let us not add further to that concern.

If devolution of criminal justice could not happen, for reasons beyond their control, when David Trimble and Seamus Mallon were in office, is it any more likely to happen when Ian Paisley and Gerry Adams are, in theory if not in fact, vested with the responsibility?

The noble and learned Lord, Lord Hutton, pointed out almost two years ago that the review had found 77 per cent of the population expressing confidence in the fairness of judges and magistrates. Was that not a thoroughly satisfactory position? Why tinker further with what works? When this question was posed previously in respect of Messrs Trimble and Mallon we were informed that the Government were not planning for failure. Well, why are they now planning for certain failure?

I had intended to support the amendments tabled by the noble Lord, Lord Glentoran. Now, in accepting the concession that has been made, I reiterate an earlier point. It has not escaped me that although "Secretary of State" could in fact refer to the Secretary of State for Constitutional Affairs, many of us believed that it could have been intended to refer to the Secretary of State for Northern Ireland. That point is different from the one made by the noble Lord, Lord Kingsland. "Secretary of State" is interchangeable, so let us cut out any duplicity and go unequivocally for "Lord Chancellor". I was about to say that I support the amendment. However, since a concession has been made, I shall not press the issue.

Clause 1, as amended, agreed to.

Schedule 1 [Transfer to Secretary of State of functions relating to Northern Ireland Judicial Appointments Commission]:

Lord Kingsland moved Amendments Nos. 2 to 22:

Page 11, line 6, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 8, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 11, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 13, leave out first ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 13, leave out second "Secretary of State"" and insert "Lord Chancellor""

Page 11, line 17, leave out ""Secretary of State"" and insert ""Lord Chancellor""

15 Jan 2004 : Column 686

Page 11, line 21, leave out first ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 21, leave out second "Secretary of State"" and insert "Lord Chancellor""

Page 11, line 24, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 31, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 33, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 35, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 11, line 37, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 2, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 4, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 14, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 16, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 20, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 22, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 26, leave out ""Secretary of State"" and insert ""Lord Chancellor""

Page 12, line 29, leave out ""Secretary of State"" and insert ""Lord Chancellor""

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Clause 2 [Membership of the Commission]:

Lord Glentoran moved Amendment No. 23:

Page 1, line 8, at end insert—

"( ) In section 3 of the 2002 Act (makeup of the Commission)—
(a) in subsection (5)(a), for "five" substitute "six", and
(b) in subsection (5)(c), for "five" substitute "four"."

The noble Lord said: The amendment returns to one of the old arguments that we debated in the 2002 Bill, now the Justice (Northern Ireland) Act 2002. Where the Government and ourselves are completely at odds over the Bill and some of the provisions it attempts to make is that we wish to keep the judicial processes in Northern Ireland depoliticised. It appears to me that Her Majesty's Government are determined to politicise them. That makes no sense.

As I mentioned at Second Reading, the Bill as drafted is totally irrelevant. One of the objectives that all parties should have is to maintain the peace process. As has been said on a number of occasions previously, by the Prime Minister and others, and my honourable friend David Lidington and myself, we have to restore the confidence of the Unionist electorate. The Bill does nothing to achieve that. That is well understood. It was well argued by me at Second Reading. I make no apology for repeating the argument today because it is vital to our discussions in Committee and throughout the Bill.

As regards the amendments, although there is a case for a significant lay element in appointments of the judiciary to help transparency—we accept that—it is

15 Jan 2004 : Column 687

vital that judiciary should be seen to be in the majority. The risk of politicisation is not merely overt: it can be insidious. Only the judges are in a position to decide who should be chosen on merit. The balance at present is tipped strongly the wrong way and should be corrected. The fact that the Lord Chief Justice and five judges could be outvoted on this commission can make no sense if one has the objective of maintaining that the judicial system be depoliticised and clear of political influences. I beg to move.

---