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Lord Maginnis of Drumglass: I support the amendment. With the Committee's leave, I wish to speak to my Amendment No. 25. The two amendments are interrelated and could well have been grouped. I hope to save the Committee's time.
As initially with Clause 1, I regret that I am unable to support Clause 2. It is poorly thought out in terms of its practicality and its consequences. There are many areas in Northern Ireland where decisions which are reflective of the community are both desirable and essential. But there are also specialist areas where, unfortunately, it is not practicable. I shall return to that point in a moment.
An essential point I must make is that the commission will be tasked, quite nonsensically, with the appointment of every judicial office save that of four judges. The only exceptions are the Lord Chief Justice and the three Lords Justices of Appeal. Unbelievably, the 17 High Court judges are not treated as senior judicial figures within the terms of this legislation but are simply lumped together with 30 or so other categories which are listed in Schedule 1. What element of society that is permitted to be part of the lay element—and which precludes those who have ever held judicial office or have been barristers or solicitors—is able to make an informed judgment as to who may be best suited to be a High Court judge?
By virtue of my 18 years in another place and over two years in your Lordships' House I might be considered to be reasonably informed about social and community matters. However, it would be presumptuous to suggest that I would have any tangible assets that would qualify me to appoint High Court judges. I understand why Amendment No. 23 seeks to go some way towards ensuring that professionals, as distinct from amateurs, form a significantly larger part of the commission.
My amendment seeks to deal in part with that requirement at new subsection (8)(b) of the 2002 Act that lay membership of the commission will be reflective of the community. I shall deal with that in some detail when we debate Clause 3.
At this stage I want to deal with the matter of competency—something that is not ensured within the Bill. When the Minister spoke at Second Reading she said:
- "Merit has been and will continue to be the overriding principle for judicial appointments".—[Official Report, 16/12/03; col. 1092.]
I do not say that my amendment is better but I believe that it is more practical and realistic. We cannot expect people who are not appointed on merit to understand and implement the meritocratic system when it comes to the appointment of judicial persons.
Lord Mayhew of Twysden: I support the amendment. I reserve, with sympathy, my position on the amendment spoken to by the noble Lord, Lord Maginnis. I say "with sympathy" because I fully understand, and was influenced by, the way in which he supported it. However, I want to hear what the noble Baroness will say in reply. I think that she faces a difficult task in this part of the Bill.
As we have been reminded, the Government insist, correctly, that merit shall be the overriding and dominant criterion for the appointment to the judiciary. That must be right. However, I believe that most people will have difficulty in seeing by what means lay members of an appointments commission can measure judicial merit. I suggest that judicial merit has to be assessed by reference to an informed knowledge and understanding of the record of a particular candidate. By that I do not mean the record in terms of political convenience to one politician or another but in terms of serving the rule of law in a manner that we expect of our judiciary; that is, impartially, without fear or favour and bringing high qualities of character and intellect to bear. For the life of me I see great difficulty, if I were a lay member, in assessing those qualities or, indeed, any of them. I can, however, see dangers of a public perception that lay members will be expected to bring political considerations to bear.
I very much hope that the noble Baroness will answer the question raised by the noble Lord, Lord Maginnis, on why High Court judges are included in this measure and not exempt from it, as are the Lord Chief Justice and Lords Justices of Appeal under the terms of the Bill. When I say "exempt" from it, I mean that they are excluded from what we are talking about at the moment. It seems to me that that distinction is important as the High Court judge will hear applications for judicial review regarding abuse of executive power. That is an immensely important development in our law brought about virtually exclusively by the judiciary and not by Parliament for reasons that we can well understand. All politicians expect, or at least hope, to be in government themselves and do not want to have tiresome judges looking at the way in which they have taken a decision. It is the High Court judge in Northern Ireland, as in England and Wales, to whom application is made for judicial review and who will decide those matters of great political importance, as they sometimes are. Therefore, I hope that the noble Baroness will explain why the High Court judge is to be subject to this method of appointment whereas the even more senior judges are not.
Finally, the whole question of lay participation in an appointments commission is a very difficult one indeed if one is seeking to justify these reforms by reference to the need to improve public confidence in the judiciary. If we had the misfortune to have to undergo surgery, I do not think that we would be
particularly confident in our surgeon in the knowledge that he had been chosen by a majority of lay people rather than by a majority of his fellow professionals. One can make the same point, perhaps even more vividly, when talking about the selection of airline pilots or the engineers who ensure that the maintenance is properly carried out. Therefore, there is considerable difficulty regarding the concept of the participation of lay people. I believe that that difficulty is confounded and made much worse by the proposal regarding equal numbers. For that reason I support the amendment moved by my noble friend.Noon
Lord Filkin: As the noble Lord, Lord Maginnis, referred to his Amendment No. 25, with the leave of the Committee I shall speak to both at once, if the opposition Benches are comfortable with that.
Lord Glentoran: Before the noble Lord does so, perhaps I may also speak to Amendment No. 25. I wish to make two brief points on Amendment No. 25. I agree with the noble Lord, Lord Maginnis, that this would be, and could be, a useful amendment if the Minister cannot see his way to giving way on Amendment No. 23. It is a rather small safeguard but it is something in the form of a safeguard which would perhaps help public confidence in the way that my noble and learned friend Lord Mayhew pointed out. The clause as it stands gives neither public confidence nor clarification in any shape or form and will certainly not support the merit principle. At this stage of the Bill I seek some form of amendment from the Government to put those problems right.
Lord Filkin: I turn first to the points raised by the noble Lord, Lord Glentoran. He spoke of the importance of depoliticising judicial appointments. The Government could not agree more. As the noble Lord will be well aware, that has been at the heart of the proposals on which we have consulted with regard to England and Wales. I do not wish to stray into that further.
The establishment of a Judicial Appointments Commission for Northern Ireland is part of such a process. At present judicial appointments in Northern Ireland are made by a politician—the Lord Chancellor. He does a particularly good job regarding that process. Nevertheless, those appointments are made by a politician through a process that, while I do not think for a second anyone necessarily says is corrupt or flawed, is opaque. It is not transparent and it is not apparent how that process is carried out. That goes to the heart of why—touching on one of the questions that have been raised—we think that it is right to bring the Justice (Northern Ireland) Bill to the House at this time. We see that there is a need, justification and merit in establishing a Judicial Appointments Commission for Northern Ireland in advance of whenever devolution may be restored as it has fundamentally important benefits to deliver. I say no more now but shall touch on that later, if need be.
I turn to the question that the noble Lord raised regarding the argument that the judiciary should be in a majority on such a body. As I am sure the Committee will recall, the arithmetic of the commission, as established by the 2002 Act, provides for six judicial members, one of whom is a lay magistrate, and two professional lawyers—a barrister and a solicitor. So, effectively, out of a total membership of 13, including the chairman, it has eight judicial professional members and five lay ones. That does not exactly meet the preference that the noble Lord expressed—he would have preferred a majority of the judiciary—nevertheless eight out of the 13 members of the commission will be deeply seasoned in the law, legal processes and legal systems. Therefore, there will be no lack of depth of understanding of the importance of the judicial process and the skills that might be required to fulfil office as a judge in Northern Ireland.
The further argument was made by the noble Lord, Lord Maginnis, and others that the lay members have no function at all, or they should have a function only if they are expert in some way in legal processes. I believe that that short changes the role of the commission. If one casts one's mind back to the functions of the commission, one sees that they certainly include making recommendations or decisions on judicial appointments. However, they go wider than that. Over a period of time—perhaps we shall discuss this later—the members of the commission consider how they can try to widen the diversity within the judiciary subject—as it always must be—to the fundamental prior test of merit. They also try to ensure that in all parts of our society, certainly not least in Northern Ireland, the public have confidence in the judiciary. That is crucial. I shall not for a second argue that the members of the judiciary in Northern Ireland are seen as anything other than talented, incorruptible and brave in terms of how they have coped during the past 20 or 30 years. However, they are not necessarily always regarded as being in touch with, or understanding, ordinary society, as is the case in England and Wales. That is one of the reasons for appointing lay members to the Judicial Appointments Commission.
Anyone who has sat on a board or a committee knows that it is very difficult to compartmentalise individual members of a board vis-a-vis certain functions. In certain decisions it is undoubtedly the case that certain people on a board have a particular weight because of the depth of their knowledge, their experience and their ability to marshal arguments and evidence. On some decisions one would expect, without in any way implying that one should fetter it through legislation, the judicial members, the lawyers, to be very powerful indeed in their expression of the importance of certain criteria and whether certain candidates meet those criteria.
In other areas the lay members could be expected to have a powerful contribution to make. So I do not think that there is a need to specify or limit that in legislation. If anything, the arithmetical balance, as expressed in the 2002 Act leans powerfully towards—how shall I put it?—professional lawyers or the
judiciary. I make no issue of that, whatever. But it is necessary to move forward now on making that change, because there are important issues to address in terms of confidence, diversity and not necessarily waiting until devolution has been restored. In other words, the Government have a position on the merit of judicial appointment commissions across the United Kingdom, notwithstanding where we are on devolution.
The short answer to why we allow the Judicial Appointments Commission to appoint high court judges is that we were minded, as we indicated in the 2002 Act, to accept recommendation 81 of the review body. We felt that had merit. I will shortly be reminded if it is the case that I have probably not necessarily given satisfaction in my general comments, but have sought to address most of the specific issues that can be answered now. For those reasons it is right to establish the Judicial Appointments Commission now. Its balance is as right as it can be and there is no need to limit the specific roles of membership; given my points about balance and about how commissions, committees or boards work in practice, whereby certain members have particular influence on certain issues, as is right and proper. For those reasons I hope that I have at least given pause for thought to the committee on the two amendments.
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