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Lord Mayhew of Twysden: Returning almost to the beginning of the Minister's remarks, I wish that I was a shorthand writer, because I would not be groping for the noun he used when he said that the judiciary—and he paid it a graceful and well-deserved compliment—was not always seen as being in touch with ordinary, I think he said, "people", although it might have been "life", "society" or "standards". I cannot remember. But the sense was that a significant proportion of people in Northern Ireland did not find the judiciary in touch. Where is the evidence for that? Northern Ireland is a community of around 1.6 million, extending over six counties; and the judges have been educated almost entirely in maintained schools there, not private schools. They live cheek-jowl with the people whose cases come before them. I would be surprised if there were any significant evidence to support that statement. Could the Minister help?

12.15 p.m.

Lord Filkin: I am pleased that the noble and learned Lord, Lord Mayhew, recognised that I have great respect and some, if limited, direct experience of, the judiciary in Northern Ireland in my current role as the Courts Minister. We are talking about perception, not necessarily always about reality. My evidence came from the Criminal Justice Review of March 2000, when in a survey of Northern Ireland's population, 66 per cent thought that the judges were out of touch with ordinary people's thought. There is no great shock there; one would obtain similar figures if the same question were asked in England and Wales. It does not automatically mean that it is true. I am just making the point that there is an issue of confidence.

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When reasons for such views were explored, people thought that judges came from a particular social class—they may have been wrong—and were therefore seen as isolated from the community and unable to understand ordinary lives. We shall return to those issues in other Bills.

There may not always be proof and substance in all those allegations. The argument over why it matters is that judges have to make difficult decisions at times; and the media and the popular press are perhaps over eager to criticise them, saying that they made wrong judgments in difficult cases. Therefore, it is a worry for society if too large a gulf opens between the public's perception of judges, who might be caricatured as being out of touch with reality, and the judgments. If those are put together there is a slight risk that the confidence of the public, particularly in the criminal justice system, is weakened. I shall not make too much of that. All I would say is that the Judicial Appointments Commission is one contribution towards ensuring that the process of selecting judges is, and over a period of time the composition of the judiciary is seen to become, more reflective of society—particularly regarding gender, where the differences are greatest, both in England and Wales and Northern Ireland.

Lord Maginnis of Drumglass: I am quite astonished at the suggestion from the Minister that somehow in the Bill we are talking about make-believe and not about reality. I think he used the term "talking about perceptions". In other words, we are talking about make-believe rather than reality. I have lived for well in excess of 60 years in Northern Ireland. Whatever may be the perception of the judiciary in other parts of the United Kingdom, in Northern Ireland we are a small parochial community. The judges come from no particular stratum of society. In fact, society in Northern Ireland is not stratified in the way that it is, perhaps, in England. So there is not a particular question of detachment from the judiciary. It is a pity that we are looking at what can only be interpreted by people like myself as a levelling down. Instead of enhancing the confidence of the community in the way in which the judiciary is appointed, we are seeking to call into question something that should not be and are therefore undermining the confidence of our community.

The reality over 30 difficult years of dealing on a daily basis—on an hourly basis—with terrorism is that throughout that period the judiciary was seen to be even-handed to the point of what some might have claimed to be liberalism, under the circumstances. I am not at all convinced by the comments that I have heard. I am certainly not convinced by the argument that the Lord Chancellor is a political figure. I accept that he is someone with special status in judicial matters. We do ourselves no service by somehow decrying something that had 77 per cent acceptance from the community in Northern Ireland. That was an amazing initial finding for Northern Ireland because so often people almost want to have a reason to differ with what is seen as the establishment, the administration, or one tradition or

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another. The figure of 77 per cent was mentioned, yet we are seeking to tweak it and to level down. That is not in the best interests of justice, nor is it in the best interests of the people I know in Northern Ireland.

We shall not have a degree of latitude from the Government on this matter and I give notice at this stage that I shall find it difficult not to oppose the Question that the clause shall stand part.

Lord Glentoran: I thank the Minister for his response. He said that 66 per cent of the population had expressed the view that judges were out of touch. I suggest to him—and he half made the point—that if a survey showed that 44 per cent of the English population felt that judges were totally in touch, he would be a happy man and so would the Lord Chancellor. That is not an unrealistic figure for a community of this kind.

The noble Lord made the argument for transparency, but I never suggested that there was none. At the outset of my brief remarks, I clearly accepted that a lay membership to the commission, if we must have one, would help transparency. However, the Government's number one objective, and ours, is the merit principle, but the Minister did not make a sound argument for that. Indeed, my noble and learned friend Lord Mayhew tore to pieces his argument in relation to maintaining the merit principle. As I have said and as was said to me by a certain person who shall remain nameless, commissions will make political decisions and end up appointing the wrong person or people.

I shall not divide the Committee today. It is useful to explore these arguments. Although I doubt it, I hope that the Government will look again at Amendments Nos. 23 and 25 and see how we can strengthen the merit argument in the Bill. The noble Lord, Lord Maginnis, made it clear that, as it stands, it will not encourage or give confidence to the population in Northern Ireland. This is a political Bill—certainly the first part of it—it is not a justice Bill and it will play no part in restoring the confidence of the Unionist population.

In relation to the quality and merit of the current judiciary, it has done a wonderful job for more than 30 years. I believe that the majority of High Court judges come from the Roman Catholic persuasion. That is not to say that they are nationalists or republicans because they would not own up to being either, which is the strength of it.

To suggest that the Lord Chancellor, when appointing judges, is a politician makes a mockery of the whole state of affairs. We all know and understand that the Lord Chancellor has three clear-cut roles which have existed for a long time; legislative, Cabinet and judicial. Until today—I hope that the noble and learned Lord, Lord Falconer, is continuing in this vein—he has steadfastly maintained the wearing of those three separate and clear hats. At this stage, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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Lord Glentoran moved Amendment No. 24:

Page 2, line 3, leave out "Secretary of State" and insert "Lord Chancellor"

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Lord Glentoran moved Amendment No. 26:

Page 2, line 10, leave out subsection (2).

The noble Lord said: The amendment refers to the subsection which limits the period for which a judge can serve on the Judicial Appointments Commission to a maximum of 10 years. In the 2002 Act, the period which judges may serve is not limited but that of the lay members is.

I am not happy about that for a number of reasons. Many High Court judges in Northern Ireland sit on the Bench for sometimes 20 years and more. That is true of high fliers whose ability to serve on the JAC is of the greatest importance. Secondly, there are only eight High Court judges in Northern Ireland, plus three Lord Justices and the Lord Chief Justice. That makes a total of 12. Given that some of them serve for more than 20 years, if we begin to restrict the period for which the senior judges may serve on the JAC, we will, from a practical point of view, be at risk of running into trouble.

I do not see why it is necessary to limit the period to 10 years. I have heard of no such argument and I shall be interested to hear what the Minister has to say. I can see the argument for lay members because there is a large pool of people to be called upon, a large part of the Province, different groupings and so forth. I can see that turning that membership around over time has considerable benefit. However, if there are only eight High Court judges, I can see no benefit in the change.

I am concerned by another matter. As I read the Bill, the Lord Chief Justice, who is to chair the Joint Advisory Commission, appears to be caught by the provision. If so, he may have already served 10 years, or a substantial part of it, even before his appointment to that post. Are we going to have the Lord Chief Justice barred from chairing the commission because he has already served his 10 years? There appear to be a number of issues of practical and administrative concern, if nothing else. I beg to move.

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