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Lord Glentoran moved Amendment No. 4:

The noble Lord said: My Lords, Amendment No. 4 is another amendment that we have already discussed at considerable length. In Committee we clarified the important point that the Lord Chief Justice who chairs the committee sits ex officio and is therefore not caught by the 10-year limit. The noble Lord, Lord Filkin, said that,

    "on promotion to another tier of the judiciary, a person can have another opportunity to enter the judicial appointments commission".—[Official Report, 15/1/04; col. 695.]

If that is so, it would go far to meet our concerns as the high flyers will almost certainly be promoted through the system, typically from High Court judge to Lord Chief Justice or resident magistrate to county court judge. But if what the noble Lord, Lord Filkin, said in Committee is correct, what is the point of the statutory restriction as it will so seldom apply? In my view it is far from clear that sub-paragraph (1A)—I read it several times along with advisers—means what the Minister thought that it meant and I hope that it means. I await the noble Lord's comments on that point. I beg to move.

Lord Filkin: My Lords, I am very glad to repeat and re-emphasise the explanation and the commitment that I gave in Committee in this respect. While the clause that we are discussing puts all judicial members on a level playing field regarding their terms of office—there seem to be good reasons for doing that both in principle and also because it was one element of the Hillsborough agreement—a lay member or a judicial member can serve five years as their first term. They are eligible to be reappointed for a second term, if that is the decision of the relevant appointing body. That second term can either be served directly subsequent to the first term or after a period of time has elapsed.

It is also the case—I again emphasise this, as I think I have said, and I may have also written to the noble Lord—that were a judicial office holder to be promoted, he or she is open to a further opportunity for appointment as they may then move into a different category. For example, if they move into the High Court, they would be open to a further opportunity for consideration and selection. In theory in extremis one can envisage the slightly bizarre situation in which a

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person who was promoted could end up serving on the Judicial Appointments Commission for 20 years. That is the theoretical extreme logic of the measure. However, I should be surprised if that occurred. As I signalled in Committee, there are good reasons for wanting turnaround while also wanting experienced people to serve on the body.

In essence I can give exactly the assurance that the noble Lord, Lord Glentoran, seeks. People may be reappointed to serve a second term in their existing role or be reappointed in a different capacity if they are promoted. Why is that? As I have signalled, it seems right in principle that both lay and judicial members should be on a level playing field as that was part of the Hillsborough agreement. I hope that having re-emphasised what I said in Committee, the anxieties of the noble Lord, Lord Glentoran, will be appeased.

Lord Glentoran: My Lords, I thank the noble Lord for that very clear explanation which I accept. Being rather churlish, I hope that the draftsmen and officials will reconsider the relevant phrasing to reassure themselves that future generations will interpret it correctly. The provision comprises only about three lines. It is rather difficult to interpret it correctly unless the relevant explanation in Hansard is attached to it.

5.15 p.m.

Lord Filkin: My Lords, I thank the noble Lord for giving way. If it will help our processes, I shall threaten to send him one of my tedious letters in which I shall spell out explicitly why we believe that we are right.

Lord Glentoran: My Lords, I thank the noble Lord for that. His letters are by no means tedious. I have received some in the past for which I am very grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, before calling Amendment No. 6, I must inform the House that, if it were to be agreed, I would not be able to call Amendment No. 7 in the name of the noble Baroness, Lady Amos, due to the rules of pre-emption.

Clause 3 [Duty of Commission to secure judiciary reflective of the community]:

Lord Maginnis of Drumglass moved Amendment No. 6:

    Page 2, leave out lines 26 to 35.

The noble Lord said: My Lords, I return to the question of what is actually meant by the wording in the Bill. I do not care whether the relevant phrase is "representative of the community" or "reflective of the community". Clause 3 is entitled:

    "Duty of Commission to secure judiciary reflective of the community".

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We are told in new subsection (8) of Clause 3 that selection for appointment,

    "must be made solely on the basis of merit".

A certain logic flows from that. If selection for appointment is,

    "solely on the basis of merit",

and we are not of the opinion that males are cleverer and more able than females or vice versa, or that black people are more able than white or coloured people or vice versa, or that Protestants are more able than Catholics or vice versa, new subsections (9) and (10) of Clause 3 are absolutely unnecessary. However—I do not need to emphasise this point much more—I and anyone who comes from Northern Ireland believes that this has to do with creating a sectarian trade-off—nothing more and nothing less. It is about creating a sectarian trade-off. I am as opposed to a sectarian trade-off as I am opposed—and have been opposed in my 20 or so years in public life—to sectarianism. I beg to move.

Lord Hylton: My Lords, when the noble Lord, Lord Filkin, replies to the amendment will he say whether there is a legal precedent for using the word "reflective"? He and I and other Members of the House probably have a fair idea of what is intended by the word but it would be slightly disappointing if a subsequent judicial interpretation showed that we were wrong.

Lord Monson: My Lords, I too hope that the noble Lord, Lord Filkin, can clarify one or two matters when he replies to the amendment.

In the course of replying to Amendment No. 1, the noble Lord mentioned that the Government aimed to achieve gender balance in the Northern Ireland judiciary. Does that mean that where two equally well qualified candidates present themselves—one male and one female—the woman will always be chosen until such time, many years hence, when 50 or 51 per cent of the judiciary in Northern Ireland is female? I do not think that any other interpretation is possible but there may be one of which I am unaware.

Leaving aside the question of gender, what other characteristics are sought in the Government's ambition to achieve a judiciary "reflective of the community"? Both the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Maginnis, have assumed that religious affiliation will be the main criterion, judging by their earlier contributions this afternoon, but I wonder whether they are right. If a Roman Catholic Unionist—whether with a capital U or a lower case u—were to be proposed to fill the notional Roman Catholic quota, my guess is that he or she would be totally unacceptable to Sinn Fein and quite probably unacceptable to the SDLP as well.

Therefore, "reflective of the community" could only mean reflective of the political community, with 30 per cent of new appointments going to known DUP supporters—assuming they have all the correct legal

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qualifications—and 23 per cent or so going to Sinn Fein supporters and so on. Can the Minister confirm that that is the case?

Viscount Brookeborough: My Lords, I support the amendment. Regarding the word "reflective", I am involved in the Northern Ireland Policing Board. When we chose members of the district policing partnerships, of which the noble Lord, Lord Maginiss, will be aware, we had to appoint people who were "reflective" of the community. The first issue to be taken into account was religion. That was not our choice, but, we were told, it was through the "political correctness" of the situation. That is how it will be done. The second issue was gender but the first was clearly religion.

I have one question for the Minister. If merit is the number one objective, how on earth can that be distorted by bringing religion or gender into it? That is not possible.

Lord Filkin: My Lords, I thought that we had one of the best discussions on the Bill on such issues in Committee. I value the exchange that we had with the Opposition Front Bench, particularly with the noble Lord, Lord Kingsland.

I start by addressing Amendment No. 6, tabled by the noble Lord, Lord Maginnis, which would remove the requirement that is inserted into Section 5 of the 2002 Act by Clause 3 that the Judicial Appointments Commission should,

    "engage in a programme of action designed to secure"

a judiciary,

    "reflective of the community in Northern Ireland".

I made it clear in Committee and shall do so again that the duty to engage in a programme of action is subject to the immutable principle of appointment on merit.

The Judicial Appointments Commission can make a decision only on which applicant is best for that judicial post. It can take no account of whether the person is a man or a woman; whether they are from one community or another; or whether they are of one ethnic group or another. The Bill could not be clearer. Appointment has to be on merit.

However, in our discussions in Committee we addressed the issue of the judiciary of Northern Ireland no differently from issues relating to the judiciary in Britain. If one looks at the composition of the judiciary in Northern Ireland—which I repeat is deeply impressive in very many respects in terms of its judicial skill and courage over some difficult periods of time—it is apparent that 87 per cent are men and 13 per cent are women. The question that faces society, which is the subject of this part of the Bill, starts from the premise that we talked about then: no one in the House believes that women are more stupid than men. Therefore, that begs a question: what is in the nature of the processes that leads to the disproportionate composition of the judiciary in Northern Ireland?

The nature of that discussion in Committee was that one had to ask the commission and others in Northern Ireland society—the Bar Council and the Law Society—

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to reflect on the nature of judicial careers, including the way in which people came forward for them, to see whether anything in the nature of those processes was likely to lead to a disproportionate composition. I shall not repeat the arguments for those who want to engage further. We have set out why the issue matters profoundly. I shall not weary the House with that again, but the issue is asking the commission what it can do to give leadership in civil society in Northern Ireland over a period of years to seek to bring about change.

I agree with the noble Lord, Lord Kingsland, who was clear that we are talking about actions that might take five, 10 or 15 years. But they are important to try to redress the composition of a judiciary that, while it is eminently skilled in what it does, is not reflective of the diversity of society. That was the essential issue and although in Committee I churlishly refused to accept the amendment tabled by the noble Lord, Lord Kingsland, about a continuing programme of action, I agree with him that that was what the issue was about. Therefore, we tabled Amendment No. 7 to make it absolutely clear, as the noble Lord, Lord Kingsland, invited us, that a programme of action by the Judicial Appointments Commission was necessary over a period of years.

Regarding the concerns raised by noble Lords, I gladly pay tribute to the reminder by the noble Lord, Lord Maginnis, of his lifetime opposition to sectarianism. We recognise how difficult that is in Northern Ireland and how that requires leadership and courage. But we are not putting the issue of sectarianism at risk by the Bill. Regarding the question asked by the noble Lord, Lord Monson, about what matters most, I said in Committee that one had to expect a judiciary, everything being equal, to be roughly reflective of society.

The greatest deviance in society is not community background but gender. That is my direct response. We do not know the exact figures for community background in Northern Ireland, but the best estimates suggest that probably around 35 per cent come from a Roman Catholic background and about 65 percent come from a Protestant background. That is not to say that there is anything fundamentally wrong or that there is perfection. But the last thing that the Judicial Appointments Commission is entitled to do is to make any decisions on appointments based on the community background of people. I am signalling that the issue matters most on gender, given my figures.

Regarding ethnicity, there is such a small ethnic minority population in Northern Ireland that there are no people on the judiciary from ethnic minorities, as they represent only 1 per cent of the population. They are small figures. It is not a situation of appointing people in order to achieve quotas. Quotas are illegal—as set out by the thrust of the Bill. Age is another issue that one might look at, but there is a limit to what might be achieved regarding age, given that holders of judicial office often require many years of experience. Therefore, one cannot expect a complete balance there of adult society, for obvious reasons.

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The noble Lord, Lord Hylton, asked me about the terms "representative" and "reflective". We have changed the wording to "reflective" because the Liberal Democrats pointed out—although I cannot remember the context—that it was a better word. I stand by that because there is a slight risk that "representative" sounds as if a person on the Judicial Appointments Commission would be "representative" of the community and that would be the last thing that we wanted. All we are seeking is that the Judicial Appointments Commission is not totally male or female or totally Catholic or Protestant, but has a fair or as reasonable a balance as possible.

Regarding the point made by the noble Viscount, Lord Brookeborough, on district policing partnerships, I do not wish to go into detail about any such future programme of action, but it does require a root and branch inspection of the processes that lead to that type of outcome. It is nothing new. A whole range of public bodies have been doing that for 20 or 30 years—seeking to uphold appointment on merit, but nevertheless inquiring into the processes which may lead to a disproportionate outcome.

I hope that my reply has been helpful, and I apologise if it has been too long.

5.30 p.m.

Lord Maginnis of Drumglass: My Lords, I am grateful to the Minister for his response. It is what I expected. I shall have a moment to debate the matter further in the next government amendment. On that basis, I beg leave to withdraw my amendment.

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