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Lord Maginnis of Drumglass: With respect, will the Minister look at the next two words? However clear that is, it is "subject to". Those words cannot be ignored, and I should be disappointed if the Minister were to ignore them as though that were not the case.
Lord Filkin: I shall defer to the noble Lord if I am wrong, but I understand "subject to" to mean that what follows must take a subsidiary position to what has just been stated.
The next limb of Clause 3 states that,
- "the Commission must engage in a programme of action designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community".
- "the Commission must, so far as it is reasonably practicable to do so, secure that a range of persons reflective of the community . . . is available for consideration by the Commission".
I turn to why I and the Government believe that that matters. We touched on this issue in a debate in September on a Motion tabled by the noble Lord, Lord Lester of Herne Hill. It was suggested then that there were three essential arguments why diversity matters. If one does not take the position that women are more stupid than men—which I do not believe anyone in this House is likely to—one has to ask the question why it is there are so few women in the judiciary. In Northern Ireland 87 per cent of the judiciary are men. Therefore if it is a fact—and it is not dissimilar in England and Wales—one is led to question what it is about the system that leads to that result. That is not to say that people making these appointments are sexist or biased. I have no view or knowledge to that effect. However, something leads to a judiciary with that kind of composition.
Why does it matter? It matters on three grounds. First, let us go back to the point of confidence. If one believes women have as much brain-power and
character as men, we are likely to be missing talent as a consequence of the process that leads to these results. So the first argument is one of talent.The second one is fairness. If there are such talented women and the system is not consciously designed to disadvantage them, it must mean that there is something about the process that leads to talented women not being able to get into positions when they would like to do so. The third one is the point of confidence. I shall not repeat what I said on that.
Those are the arguments about why diversity matters, but diversity has to be seen within the context of not compromising merit. One may say that it is impossible to do it; that diversity cannot be addressed without compromising merit. That has not been my experience and I do not believe it has been the experience in British public policy over the past 20 years when a range of private and public sector organisations have tried to uphold the principle of appointing the best person for a role or a job and also to question why the system seemed to lead to either bias in terms of gender or ethnicity.
While nobody claims perfection, there has been an enormous amount of learnt experience about how one sometimes has to look at the nature of processes and adjust them to ensure that people have an opportunity to compete on a fair basis and then be judged on merit. In essence, that is what the Judicial Appointments Commission is being asked to do—in part, to make decisions or recommendations; in part to get information about what is happening in the system, but in part also to explore impediments that lead to these results. It is not being asked to go around pointing fingers and saying that Ministers or the senior judiciary are biased; it will try to see if there is something in the nature of the system that leads to these results. If that is the case, then we need to stimulate a debate in society about what can be done to change it. That would be a debate as much within the Bar Council or the Law Society, as it would be within the processes that lead to immediate decisions. So that element of the work is much more longer term, but it will bring in a process over time that is more likely to lead to the opportunity for talented people to come forward and then, if they meet the merit test, to be appointed. I hope that answers the important question raised by the noble Lord, Lord Monson. We are not saying "the next X per cent", it can only be on merit and it is governed by "so far as is practicable".
The noble Lord, Lord Fitt, in his Second Reading speech made some interesting historical references to what happened in the past. He was arguing that it would not be good to do this now and we should leave it until devolution took place—I apologise to him if I do his arguments an injustice. We cannot wait because these issues of diversity, of transparency, matter and there is every reason for starting that process now, rather than finding reasons for putting it off. I have no idea when devolution will happen. I hope it will happen sooner rather than later if the tests that need to be in place for it to happen can be met. It might be sooner or it might be later. Either way, if the Judicial Appointments Commission, through doing its work, starts to lay the ground for deepening confidence,
increasing transparency and leading over time to more diversity, I would have thought that the Assembly would welcome that.I apologise to the Committee if I have talked at too great length, but I have outlined the argumentation as to why we think that there is no risk in this. The legislation is properly balanced and is tightly conditional, subject to the supremacy of merit and so it should be.
Lord Monson: The Minister has, as always, put his case extremely well. However, let me put another question to him. If merit is the only criterion which counts, why should there be a compulsory retirement age for judges? If a judge is as competent, alert and on the ball in their seventies as they were 20 years earlier, why should they be forced to retire?
Lord Filkin: Well, this is rash but not knowing the answer, I shall venture one or two reasons. Recognising, as I increasingly do, the benefits that age brings to wisdom, the judges already have a pretty high retirement age. Secondly, we are all at risk, as time goes by, of succumbing to the diseases of age. Therefore the risk of losing one's acuity does increase as one ages, particularly when one gets beyond 75. Thirdly, there is the argument that at times organisations do need space to allow people with talent to come through. So off the cuff, those would be my reflections.
Lord Mayhew of Twysden: I should have responded to the implied invitation of noble Lord, Lord Maginnis, that I should confirm what he had to say about the way in which the council he has sat on for a very long time operates regardless of political or community differences. I very willingly do so. I also wish to ask the Minister whether he could explain the significance of the difference between "being reflective of" and "being representative of"? There has been a change to "reflective" from "representative". I am not sure what the intended significance of that may be.
Lastly, I should like to reply to the noble Lord, Lord Fitt who invited me to recant from my assertion that the judges knew their people because they had been at school with them and lived cheek by jowl. I do not think I have to recant from that solely because there are areas in which judges cannot proceed without protection officers. Perhaps that may be said to be throughout Northern Ireland. I do not believe that having lived in that community, man and boy, and having served as a solicitor or at the Bar before they became judges, they somehow become cocooned and a kind of amnesia falls so that they are unable to determine how people think and how they behave, simply by virtue of appointment to the Bench. I do not believe that I am called upon to recant from that. Of course they have difficulties but those are imposed upon them by what is still called the Emergency after 30 years.
Lastly, I hope the Minister will not endorse what the noble Lord, Lord Fitt, says about widespread political influence in the appointment of judges under the present system. I have only had experience of two Lord
Chancellors and am absolutely satisfied that the judges appointed at that time in Northern Ireland were appointed by reference to merit. It so happened—and it was a felicitous happening—that the High Court judges did and I believe still do contain a majority of those who come from the Catholic side of the community. That was regarded as fortuitous and it certainly was not the product of intention.1 p.m.
Lord Filkin: On the use of "reflective" rather than "representative", there are probably two reasons. First, if I recollect, we received some good arguments and advice on the matter and often, if not always, our ears are open to such arguments. The second argument, which is not just semantics, is that the word "representative" bears a slight risk that people will think that one is there to represent the community or that one is a delegate. That is exactly the reverse of what we would expect to be the case. The word "reflective", a softer term, avoids any risk in that respect, which is why we have been keen to use it.
On the second point raised by the noble and learned Lord on political influence, I can speak with direct, firsthand experience of my relatively limited time in the Department for Constitutional Affairs. I am absolutely clear from that experience that both officials and the Lord Chancellor when operating in the mode of judicial appointment could not be more punctilious about the process, and issues of political affiliation or community affiliation would not be part of their consideration. They would make judgments on merit, as I am sure was the case when the noble and learned Lord, Lord Mayhew, had strong interest in such issues.
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