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Lord Filkin: I shall not speak at excessive length. There are three points. The first is the argument of equivalence. That did not seem to us to be a good reason for not having a commonality between judicial and lay members in terms of eligibility to serve on the commission.
The second argument—I am groping for the best adjective to use—is about variety or turnaround. A judge being able to serve a five-year term and then another five-year term, either abutting each other or with a gap between them, gives him the opportunity to make a powerful contribution to the Judicial Appointments Commission. Experience shows that there is benefit in such bodies having some refreshment
and turnaround. One does not want them to become completely fossilised around one set of members to the exclusion of others.The third argument is that while the noble Lord, Lord Glentoran, is right, as often, the pool is not limitless, but other people would be able to contribute on a JAC and therefore there is benefit in having some turnaround.
My final point—noble Lords may tease me about it, as it goes slightly against some of the other points that I have just made—is that, on promotion to another tier of the judiciary, a person can have another opportunity to enter the judicial appointments commission, at least conceptually. Whether they would want to do so, I do not know, and whether it would seem appropriate or not, I do not know. But at least that may be a slight comfort to the noble Lord, Lord Glentoran.
12.30 p.m.
Lord Glentoran: Before the noble Lord leaves that point, can he clarify the situation involving the Lord Chief Justice?
Lord Filkin: He is not subject to the time limit; he is there ex officio.
Lord Glentoran: If the Lord Chief Justice is ex officio, does he have a vote on the commission?
Lord Glentoran: I thank the noble Lord for his answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord Maginnis of Drumglass: Taking an example from the noble Lord, Lord Glentoran, at this stage I shall not continue to oppose the Question whether Clause 2 shall stand part. As I have already made clear, I am less than happy with the response from the Government Front Bench. I hope that, in not opposing the Question whether Clause 2 shall stand part, the Government will reconsider whether there can be a compromise in terms of Amendment No. 23. The Government could take that amendment away and perhaps tweak it a little so that there is some change, if not a change to the full extent proposed by the noble Lord, Lord Glentoran. On that basis, I shall not oppose the Question whether Clause 2 shall stand part.
Clause 2, as amended, agreed to.
Clause 3 [Duty of Commission to secure judiciary reflective of the community]:
The Deputy Chairman of Committees (Baroness Fookes): If Amendment No. 27 is agreed to, I cannot then call Amendments Nos. 28 or 29 by reason of pre-emption.
Lord Maginnis of Drumglass moved Amendment No. 27:
- Page 2, leave out lines 26 to 35.
The noble Lord said: When I spoke on Clause 2, I indicated my concern about the term "reflective of the community". In Clause 3 we have a reiteration of the principle that appointments should be—must be—made solely on the basis of merit. That particular qualification or condition is then watered down by being made subject to being "reflective of the community".
Such is the situation in Northern Ireland that the judiciary is not reflective of the community in one area—that of gender. So the judicial element cannot meet the requirement of subsections (9) and 3(10). If that is the case, I shall give your Lordships an example of how ridiculous this can become. If the judicial element cannot be reflective of the community, neither can the lay element, because the commission as a whole will then be looked at to see how it can be made reflective of the community. Virtually all the judicial element is male. To match that, all the lay element will have to be female. That is not reflective of the community.
Perhaps I may give an example of how this has created a problem for me in terms of district police partnerships. I am chairman elect of a district police partnership and we found ourselves—a number of councillors of every persuasion—sitting round a table and selecting the lay members. We were in total agreement—nationalist and Unionist, Protestant and Catholic—because in my council we work as a team, irrespective of politics or religion. The noble and learned Lord, Lord Mayhew, will bear me out on that matter. Having reached a decision on which we were all agreed, the police board decided that because Sinn Fein within the council was not participating in the district police partnerships and, therefore, under the d'Hondt system, Unionists had a majority among the elected members, then, among the non-elected members, seven out of eight should be Roman Catholic.
The noble and learned Lord, Lord Mayhew, knows my area particularly well. If you take an area such as that covered by Dungannon and South Tyrone borough council, you will find that seven Catholics and one Protestant is hardly reflective of the community, but that is what is being presented to the people out there. They know who their councillors are. They know that their councillors get on with the business. They know we do what we have to do. The same can be applied to the judiciary in this specific case: people getting on and doing what they have to do, irrespective of colour, class or creed. They will not understand if I concur with the direction by the police board—and I have not done so—and I believe that if the police board was right the Secretary of State for Northern Ireland would have over-ruled me during the past year when I have refused to form the district police partnership in Dungannon and South Tyrone.
I recount that situation to your Lordships because it is important in terms of the judiciary that we do not find that, instead of something that is representative
and based on a meritocracy, we have something which is tweaked, fiddled and cheated over in order to get something that has little meaning and little relevance to the ordinary person on the street—the consumer. I beg to move.
Lord Monson: In rising to support the amendment, may I enlarge upon what the noble Lord, Lord Maginnis, said about gender? If you are determined to have a judiciary that is reflective of the community, then clearly you must work towards a state of affairs in which 50 or probably 51 per cent of the judiciary are women. Accordingly, all judicial vacancies over the next few years must be filled exclusively by women in order to attain that end. I also wonder how age would be affected. Would you have to have judges ranging in age evenly from 18 to 80? I would be interested to hear what the Minister has to say on that matter.
Lord Fitt: I feel compelled to support some of the reservations that have just been mentioned by the noble Lord, Lord Maginnis. Your Lordships will be aware that over many years I have had reservations about the appointment of judges in Northern Ireland. It would be entirely dishonest to say that there was not a very high political element in the appointment of judges in Northern Ireland. I have repeated in your Lordships' House and in Committee the details of a particular case in which I was involved, although I do not want to go into that again.
However, what do I think of the commission? It was said by the noble Lord, Lord Maginnis, that the commission would have to be reflective of the community in Northern Ireland. That is an impossibility. In view of the changed political circumstances in Northern Ireland since the most recent Assembly elections, it would be necessary for Sinn Fein and the DUP to have persons appointed to the commission, and all kinds of objections would be raised.
I believe it is significant that the Minister said that the Government want to get this legislation through in advance of devolution being restored to the Assembly. But that would be a very dangerous attitude to take because people in Northern Ireland, and in particular Sinn Fein and the SDLP, have repeatedly put forward their ideas for reforming the police, the judiciary and the criminal justice system. Those are the three main elements which they have put forward in all their submissions.
In view of the changed political circumstances, I ask the Minister whether it is advisable to rush this Bill on to the statute book. If there is to be devolution and if, as I predict, Sinn Fein and the DUP will want to be represented, they will say that this legislation was rushed through this House while they had the support of people in Northern Ireland who elected them and that they are more reflective of the community in Northern Ireland than are Members of your Lordships' House. I believe it is hard to disagree with that argument.
I turn to the appointment of the lay members of the commission. Anyone from Northern Ireland will recognise that every person in Northern Ireland has a
political opinion, whether they are nationalists or Unionists. No one in Northern Ireland is picked for any position on the grounds that he has no political opinions. When the members of the commission are appointed, they will have political opinions. Indeed, that will be the reason for their appointment because they represent nationalists or Unionists. Therefore, there will be a continuation of discrimination on one side or the other.I believe that over the past 10 or 20 years—in fact, since direct rule in 1972—dramatic changes have taken place in the appointment of judges. Prior to that, a certain section of the community—namely, the Catholics and nationalists—had no high opinion on the appointment of judges. As I said, I have illustrated a particular case time and again in your Lordships' House.
Until the recent changes, the Lord Chancellor had responsibility for appointing judges in Northern Ireland. There was one case—I do not want to go into it now in detail—in which the Government of Northern Ireland made a recommendation to the Lord Chancellor. That amounted to political interference with the Lord Chancellor taking a role in the appointment of judges. Therefore, one cannot say that the commission will be set up with the lay members having no political opinions.
The noble and learned Lord, Lord Mayhew, said that Northern Ireland judges were well known and that they lived cheek by jowl with the community in which they served. That is totally untrue. One should talk to any of the policemen in Northern Ireland who drive the judges around in cars and stand with them when they go to social functions. Although this may sometimes be exaggerated, it is said that judges in Northern Ireland dare not go into a supermarket on their own without the support of a policeman. They could not walk the streets in certain areas of Belfast, particularly in nationalist areas but, in some cases, Unionist areas as well. They are not living cheek by jowl with the community in which they serve on the judiciary. So it would be dishonest to say that the judges know the people with whom they deal and on whom they will pass decisions one way or another.
Therefore, the Government are not faced with an easy task. I agree with the noble Lord, Lord Maginnis, when he said that it is an absolute impossibility to appoint members to the commission who are totally neutral and yet reflective of the community. That is the reality of Northern Ireland. Does the Minister believe that he has held adequate discussions with the political representatives in Northern Ireland? Does he not feel that it would be injudicious to push through this legislation in advance of devolution being restored to the Northern Ireland Assembly? Once the Assembly is elected, it will want to express opinions on the criminal justice Bill. Therefore, it may be right for the Minister to hold back before discussions are held with the newly elected political parties, which have thought about such political change in Northern Ireland since the Assembly elections.
12.45 p.m.
Lord Filkin: This has been an important and interesting debate. Perhaps I may start by returning to the essential elements of Clause 3. The first limb of it—subsection (8)—contains the absolutely crucial wording:
- "The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit".
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