INTRODUCTORY (Hansard, 4 March 2002)

§ Mr. Browne
I beg to move amendment No. 104, in page 2, line 5, at end insert— '(other than the office of Lord Chief Justice or Lord Justice of Appeal),'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendment No. 174.
Amendment No. 169, in clause 5, page 4, line 35, at end insert— '(8A) Without prejudice to subsection (8), the Commission must, as far as practicable, exercise its functions to select persons to be appointed or recommended for appointment in order to secure that the judiciary is reflective of the community in Northern Ireland.'. Amendment No. 28, in clause 6, page 5, line 33, after "office", insert— 'for a maximum of three months'. Amendment No. 70, in clause 8, page 6, line 23, after "by", insert "the Lord Chancellor or".
Amendment No. 29, in page 6, line 23, after "jointly", insert— 'with the agreement of the Prime Minister'. Amendment No. 30, in page 6, line 30, leave out— 'the Lord Chief Justice or'.

§ The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton)
Everyone is leaving. Was it something my hon. Friend said?

§ Mr. Browne
And to think that I imagined they might be interested in legislation.
In Committee, the hon. Member for North Down (Lady Hermon) expressed a fear that the First and Deputy First Minister's order-making power in clause 2 could be used to bring the offices of Lord Chief Justice and Lord Justice of Appeal within the remit of the Judicial Appointments Commission. I assure the hon. Lady that that was neither the intention of the review nor that of our policy. Furthermore, any attempt to make the Judicial Appointments Commission responsible for those senior offices in the future would require a cross-community vote in the Northern Ireland Assembly, and the agreement of the Lord Chief Justice.
Although those are in themselves strong safeguards, I have decided to put the matter beyond all doubt by means of amendment No. 104. I am grateful to the hon. Lady for bringing it to my attention, so that I could concentrate on it. The amendment would make it clear that the First Minister and Deputy First Minister may not use their order-making power to bring the office of Lord Chief Justice or that of Lord Justice of Appeal within the commission's remit.
Let me now deal with amendment No. 174. In Committee, Members expressed concern about the fact that sub-committees of the Judicial Appointments Commission could be made up entirely of members who were not members of the commission itself. The thinking behind the original drafting of schedule 2 was that if committees and sub-committees were always required to include commission members, an unfair imposition could 42 be placed on their time. However, we are now in a better position to assess the commission's likely work load, and accept that the degree of flexibility envisaged in the original drafting may not now be required. The amendment therefore makes it clear that when the commission delegates any of its functions to a committee or sub-committee, the committee or sub-committee must always include a member of the commission and, unless that member is a lay member, a lay member or person eligible to be one.
I turn now to amendment No. 169. The review suggested that those responsible for judicial appointments should seek to ensure that the judiciary is reflective of Northern Ireland society. My hon. Friend the Member for Newry and Armagh (Mr. Mallon) proposes putting that in the Bill. In drafting the legislation, we have included the merit principle which the review made clear should be the overriding criterion in making appointments. Unlike the various statutory commissions on which we have placed the statutory duty to ensure representativeness, I see some difficulties in applying the same requirement to the appointment of judges. I recollect that on more than one occasion in Committee I went into these difficulties in some detail.
The amendment makes it clear that merit is the overriding principle, but that is immediately put in jeopardy in the amendment. It is vital that the judiciary continue to be viewed with respect and high regard by all sections of the community. I fear that the amendment would allow insidious suggestions to be made about future appointees—for example, that they were appointed not on merit but to even up the numbers. That is not in the interests of justice in Northern Ireland.
I share the sentiment behind the amendment and I, along with all Members, wish the judiciary to reflect the community that it serves. The best way to ensure a reflective judiciary is by ensuring a suitably balanced pool of eligible candidates who apply for vacancies as they arise. My hon. Friend will know that the judges of the future come from the pool of lawyers—whether they be solicitors or barristers—Queen's counsels and law students of today. This collective group is already highly mixed in terms of gender and community background. With time, the strict application of the merit principle will automatically lead to where we want to go. I hope, therefore, that my hon. Friend will withdraw his amendment.

§ Lady Hermon
The Minister will recall that on at least one occasion in Committee I mentioned that we already have a High Court judgment in the Evelyn White case in which the judge, quite rightly, took the interpretation of the words "representative of the community" from the context of the Public Processions (Northern Ireland) Act 1998. Will the Minister therefore go some way towards including words such as "representative" or "reflective" in the Bill, so that women and ethnic minorities will be included in judicial appointments?

§ Mr. Browne
I thank the hon. Lady for her intervention. This issue exercised us on more than one occasion in Committee and I will endeavour to make myself clear. I repeat that I share the aspirations of all Members that the judiciary of Northern Ireland should be reflective of the community that it serves. However, I am adamant and convinced that that is best achieved by an 43 appropriate fair and transparent system that operates on the basis of merit. I am reinforced in that view by the people who are coming through in the profession and their reflectiveness of the community of Northern Ireland. In my view, the future for reflectiveness and representativeness should be left to the principle of merit and the infrastructure set out in the Bill that ensures a transparent system which will allow the best lawyers who want to be judges, wherever they come from, to become judges.

§ Lady Hermon
I appreciate the Minister's giving way again. This is just a small point. He said that the people coming through would be representative, and I take it that that means representative of women and ethnic minorities. How many women and members of ethnic minorities are coming through at any stage, at any level, in the judiciary in Northern Ireland?

§ Mr. Browne
I do not have the precise figures and I will write to the hon. Lady with them. She will have her finger on the pulse of this better than I do, having taught some of those concerned recently. But having made inquiries, I am assured that, if anything, women make up more than 50 per cent. of those who have been seeking to join the profession; I say that from memory. It would probably be better for me to write to her about the precise figures. She is persistent and consistent on this issue, and rightly so.
The issue must be addressed across the legal profession and not just at the top. Unless the matter is addressed by the Law Society, the universities and the Bar Council, we will get at the top tokenism of the worst kind, which will interfere with the independence of the judiciary. It is my job in terms of the Bill to create an infrastructure and a process that will fiercely and jealously guard the independence of the judiciary. I do not believe that including in the Bill provisions that will allow people to argue that, whatever the merit of an individual candidate at some point in the future, he ought to be appointed to even up the numbers to create some perception of balance, will serve the people of Northern Ireland. I do not think that the hon. Lady is unconvinced by that argument, but I will write to her on her questions.
Amendment No. 28 would place a time limit of three months on the suspension of the Lord Chief Justice in a situation where the Prime Minister and Lord Chancellor were considering making motions for the presentation of an address to Her Majesty for his removal. We expect action under this clause to be a rare event, if ever. If action were ever taken, we hope that the necessary steps would be taken quickly. However, it would be a mistake to tie our hands too much in the way proposed. Clause 6 is only ever likely to be invoked in extremely serious cases. We cannot know for sure how much time a tribunal might take to report. I would therefore urge hon. Members to withdraw the amendment.
The effect of amendment No. 70 would be to give the Lord Chancellor a role in the removal from office of the Lord Chief Justice. The process of removal from judicial office is very much linked to the process of appointment. Given that the Lord Chancellor, after devolution, will not 44 have a role in the appointment of the Lord Chief Justice—or, for that matter, of any member of the judiciary—it would seem inappropriate that he should have a role in considering removal from this judicial office. In Committee it was argued from some quarters that the Lord Chancellor should continue to have a role in the appointment of judges, even after devolution.
The Government's position was clear then and remains so now. It would be inconsistent to devolve that function while retaining a role for the Lord Chancellor. It would be equally inconsistent to retain the Lord Chancellor's involvement in the removal process once the responsibility for judicial appointments had been devolved. I ask therefore that the amendment be withdrawn.

§ Lady Hermon
The First Minister and the Deputy First Minister, acting jointly, have to convene a tribunal for the removal of the Lord Chief Justice, the most senior judicial post in Northern Ireland. What will happen if the First Minister and the Deputy First Minister are unable to act jointly and cannot agree? Surely we should have a fall-back measure, under which the Lord Chancellor is able to convene such a tribunal. "We are not planning for failure" is not an appropriate answer.

§ Mr. Browne
The answer will not be my stock answer, which was, "We are not planning for failure." This is a serious and important step that it is envisaged will be triggered in circumstances where the First Minister and Deputy First Minister can act jointly.
Amendments Nos. 29 and 30 seek to retain an inappropriate role for Westminster in regard to setting up a tribunal to consider the removal of the Lord Chief Justice after devolution. As I have said, the Government recognise that tenure is of central importance to judicial independence. We fully support the principle of giving full-time judges and magistrates tenure during good behaviour until statutory retirement. A properly constituted judicial tribunal is, however, a key part of securing a transparent and accountable judiciary, and clause 8 provides for such a tribunal.
Amendments Nos. 29 and 30 seek to replace consultation with the Prime Minister with a need to obtain his approval before a tribunal can be convened to consider removal of the Lord Chief Justice. The amendments are contrary to the spirit of the review and, more importantly, to the spirit of devolution. Although the First Minister and Deputy First Minister can convene a tribunal to consider removal of the Lord Chief Justice, clause 6 makes it clear that they cannot remove him on the basis of that tribunal alone. Only the Prime Minister and Lord Chancellor may do that, under clause 6, by making a motion for the presentation of an address to Her Majesty.
I am slightly mystified as to why the Prime Minister's approval should be required twice. It is sensible that the First Minister and Deputy First Minister should consult the Prime Minister when they consider convening a tribunal to remove a senior judge in Northern Ireland, but it would be unnecessary to require his approval at that stage as well as when a motion was to be made.

§ Mr. Blunt
I support the Government amendments, which improve the Bill. The Government have recognised a difficulty by tabling amendment No. 104 to protect the Lord Chief Justice and the lords justice of appeal against 45 being included in a schedule by any First Minister and Deputy First Minister with whom their relationship was unsuccessful. Equally, Government amendment No. 174 improves the Bill and I am greatly reassured that members of the commission will sit on the sub-committees. That is necessary, and I am grateful for it.
I assume that that change follows consideration within the Minister's Department of the work load that will be placed on the Commission rather than of how much delegation will be required. That provides satisfactory evidence that proper consideration in Committee improves legislation. It is a great pity that we shall shortly move on to discuss clauses that we never debated in Committee.
Amendment No. 28 raises issues about the length of time for which suspensions may take place. It deals with circumstances in which the Lord Chief Justice has been on the wrong end of a tribunal decision. Clearly, that would be extremely serious, and one hopes that it will never occur, and certainly that it will not happen regularly. Clause 6(8) states: If the Prime Minister and Lord Chancellor are considering the making of motions for the presentation of an address to Her Majesty in relation to the Lord Chief Justice, the Prime Minister may suspend him from office". The point is that simply "considering" an address will give them the authority to suspend the Lord Chief Justice. If we are to protect his position against politicians who may act unfairly, and if we seek to uphold the independence of the judiciary, it is necessary to put a duty on those politicians to place the address before Parliament in a timely manner.
I can be persuaded that three months is not the right period. Producing the address may take longer, although I think three months fairly generous, given that the Prime Minister and Lord Chancellor would present an address only after a tribunal had taken place and most of the evidence on which Parliament would make a decision about suspension would already be in the open.
The purpose of the amendment is to protect the Lord Chief Justice from the arbitrary use of power under the Bill. I do not want to press the issue now; it can be considered at a later stage and the Government can decide whether they want to pick it up and run with it, as they have done with their amendments Nos. 104 and 174. They can make a judgment as to whether the position of the Lord Chief Justice would need protection in the extreme and rare circumstances to which I referred. I think that the Lord Chief Justice would need protection. The period of three months may be too long, too short or about right. That point can be subject to further reflection.
I hope that the Government will reflect on the matter and that they may be persuaded to consider it in another place and table amendments to protect the position of the Lord Chief Justice from the arbitrary use of power in extreme circumstances. One hopes that the provisions would never be used—I fully acknowledge that—but if they are to be set up, we must consider the protection of the independence of the judiciary. A provision along the lines of amendment No. 28 would do that.
Amendment No. 29 would require the agreement of the Prime Minister if the First Minister and the Deputy First Minister wanted to initiate a tribunal to consider the removal of the Lord Chief Justice. That distinguishes the position of the Lord Chief Justice from that of lords 46 justice of appeal by making a higher test, as the requirement is only to consult the Prime Minister about a tribunal to remove a lord justice of appeal.
My argument runs counter to the Minister's. His point was that as the Prime Minister would have to agree to present an address to Parliament to effect the result of the tribunal we did not need to ask him at the beginning of the process. However, the removal of a Lord Chief Justice is an immensely serious matter, so there is a necessity for the Prime Minister to be convinced—at least prima facie—that he would be minded to present such an address following a tribunal. It would be extremely unfortunate if the First Minister and the Deputy First Minister consulted the Prime Minister, set up a tribunal to which the Prime Minister was opposed and—after consideration of the evidence—he did not want to make an address to Parliament.
Before a tribunal takes place, the case against a Lord Chief Justice is, in essence, the case for the prosecution. Usually, the tribunal would offer the Lord Chief Justice an opportunity to make the case that he should not be removed from office. Such a state of affairs would, of course, be extremely unhappy. It is therefore important that the Prime Minister's consent be obtained at the beginning of the process. The private or public evidence of misbehaviour by the Lord Chief Justice would be available to the Prime Minister—as it would be to the First Minister and Deputy First Minister—before the proceedings were initiated. The position of the Lord Chief Justice can only get better once he has the chance to answer the allegations made against him.
The Prime Minister should have the opportunity to say, "I am convinced of the weight of the case against the Lord Chief Justice before the start of the formal proceedings. I therefore do not agree to them." That is why I have proposed amendments Nos. 29 and 30.
I do not intend to press these matters at present. We did not get the chance to discuss them in Committee, but I have put them on the record. I hope that the Government will reflect on the amendments and adopt them as their own—as they have adopted other amendments and ideas during the Bill's proceedings. Obviously, our purpose here as legislators is to improve the legislation, and this is an opportunity to put those matters on the record and debate them.
5.15 pm
On amendment No. 70, in the name of the hon. Member for North Down (Lady Hermon), I fear that I find myself in agreement with the Minister. I am sorry to disagree with the hon. Lady—

§ Lady Hermon
indicated assent.

§ Mr. Blunt
It is indeed a frightful position to be in, and I am much more comfortable when I agree with her.
On the provisions and amendments concerning the role of the Lord Chancellor in the justice system of Northern Ireland, there is a difference between the hon. Lady's party and Her Majesty's Opposition. We take the same view as the Government's—that if justice is to be devolved and the Lord Chief Justice is the head of the judiciary in Northern Ireland, he must assume all the proper responsibilities. We will have another chance later 47 today to explore some of the other duties that the Lord Chancellor retains under the Bill, and the Minister will be able to explain exactly what happens when justice is devolved.
On amendment No. 169, in the name of the hon. Member for Newry and Armagh (Mr. Mallon), I again found the Minister's arguments convincing. I am pleased that he is able to report to the House that the shape that the legal profession is taking in Northern Ireland will deliver the objectives that we all share. The people who today are law students, or young barristers and solicitors, will form the judiciary of tomorrow, and in the course of time the judiciary will inevitably reflect the community as we all want it to.
I accept the Minister's arguments about the potentially pernicious consequences of amendment No. 169, which would be wholly unintended. Merit must remain the first principle and rule in the appointment of the judiciary. That is connected with the arguments that we had in Committee about protecting the religious and cultural identity of members of the judiciary, and about tracing such information only for the group rather than for individuals. That is aimed at protecting their independence as far as possible.
I hope that the arguments in support of our amendments will commend themselves to the Minister—upon reflection. I also hope that that reflection will be rather more detailed than that which I suspect the Law Society undertook on the previous question.

§ Mr. Browne
I shall be polite, at least.

§ Mr. Blunt
I hope that the hon. Gentleman will be more than polite; I hope that he will reflect on what we have said and come back with amendments to address our concerns in another place.

§ Mr. Mallon
I listened with interest to what the Minister said about my amendment, and I find it increasingly difficult to understand his underlying fear. Mine is not a pernicious amendment in any sense; it is a benign, gentle amendment, which reflects what the Minister says is the Government's intention. It also adequately reflects the position represented in the criminal justice review.
I feel that I should address two points that the Minister made earlier. He said that this gentle, innocuous little amendment, which is in tune with his objectives and those of the Government, could put the merit principle in jeopardy—I believe that those were his words. I am trying to think how that could happen, and I shall listen further to the Minister to find out. I await his explanation with interest, because I would have thought that, far from placing anything in jeopardy, my gentle, innocuous little amendment would do something else.
The Minister also said that he is convinced that the merit principle will automatically lead to a situation in which such an amendment will not be necessary. We have all thought that at certain times in our lives. Those of us who have lived in Northern Ireland for a long time thought it not just for a few years but for decade after decade. There are those in many walks of life who are still buying that idea and to whom it is still being sold, 48 and quite effectively. We are told that the merit principle will automatically lead to changes in the civil service in the north of Ireland—changes in gender, ethnic groupings and community divisions. The reality is that those changes will take much longer than my lifetime, or what is left of it. We should not buy the notion that if we take these measures and say nothing about them, they will automatically lead to changes such as those described by the Minister.
I challenge both of the Minister's assertions because at the heart of the amendment is one word, "legitimacy"—the legitimacy of what we are trying to do. If the measures are to enjoy that legitimacy, there should be representativeness of the community in Northern Ireland. The review pointed that out clearly when it said: the extent to which the composition of the judiciary reflects the society which it serves is a confidence issue and has implications for its legitimacy in the eyes of many of the community. If there is a perception that judges come predominantly from a narrow pool, then there is liable to be concern that the way in which the law as a whole is developed may be unduly influenced by one particular set of values.
Those are profound words, and they are even more profound when they are applied to Northern Ireland because at the moment, regrettably, the judiciary is not representative of society as a whole. The Minister has no figures on that; the Government have no figures on it, but all the Members from the north of Ireland who are sitting here know that the judiciary is not representative. Let me be more explicit: women are almost completely unrepresented in the judiciary; ethnic groupings, which are large and growing in the north of Ireland, are largely not represented; nationalists are not fully represented and nor is the wing of Unionism which would tend towards a more robust approach to the Union. Those are facts of life, and they will not automatically change.
That is supposition because the Government do not monitor such data. They monitor such data in every other walk of life but there is a remarkable mystique surrounding this part of life which is reflected in the Bill. The Bill says that a lay appointment must be not only reflective but representative of the community, but an appointment to the judiciary cannot be either reflective or representative of the community. It is okay for the layman; it is not all right for the judge. Frankly, that is not all right for the people of the north of Ireland because we are all ultimately equal and we should all be treated with equality.
It goes without saying that I fully accept the importance of merit in making judicial appointments. Clause 5(8) states that the selection of a person for judicial appointments must be made solely on the basis of merit. I agree with that. However, I and many others are concerned that, taken alone. The requirement to make appointments solely on merit might limit the ability to take the appropriate affirmation action recommended in the review.
Certainly, without a duty to secure a representative judiciary, in so far as is practicable, there would be no obligation to engage in those affirmative action measures, yet not one of them derogates from the merit principle in any way. The Government themselves have stated that 49 they are committed to implementing those measures, and they are set out specifically in paragraph 6.85 and 6.11 of the review.

§ Lady Hermon
I rise simply to draw the hon. Gentleman's attention to a provision in the agreement that clearly states that the British Government will have a duty to promote equality of opportunity in relation to religion and political opinion; gender; race", among other things. Those words clearly impose a positive duty on the Government to take action to promote equality of opportunity for women and ethnic minorities. I hope that the hon. Gentleman will regard that as helpful.

§ Mr. Mallon
I take the point that the hon. Lady makes, but I am not convinced. The agreement also obliges both Governments to ensure parity of esteem, but we shall discuss that matter later. To answer the hon. Lady directly, we are dealing with legislation and we have a duty to ensure that those who make such appointments have a duty to do so in a way that is not contrary to the merit principle, that is in tune with that principle and that reflects the community in the desired way. As the Minister said earlier, that has been done previously by imposing a duty on the appointing authority to ensure representativeness in so far as is practicable.
For example, the Secretary of State has a duty to ensure representativeness in so far as is practicable when making appointments to the Policing Board, the Parades Commission, the Human Rights Commission and the Equality Commission. I do not regard that as pernicious, nor do I regard any of those boards as pernicious in the sense that people were not appointed on merit. I believe that there is a substantial weakness in the argument that proposes that, if a Government face their responsibilities in legislating, somehow or other they derogate from the highest standards, including the merit principle.
I do not believe that the Policing Board was appointed on anything other than the type of merit standards that are required to keep that board afloat in Northern Ireland. I do not believe that the Parades Commission, the Human Rights Commission or the Equality Commission derogated from the merit principle in any way. I believe that we should challenge the Government's assertion that a gentle and innocuous amendment such as mine would somehow devalue the merit principle. It does not derogate from that principle; if it did so, whether in terms of the Policing Board, the Human Rights Commission, the Equality Commission or the Parades Commission, it would be illegal. I am not for one moment suggesting that the Government are acting illegally in respect of any of those bodies. However, we must ensure that proper regard is given to taking appropriate measures to help to ensure representativeness. Such measures could relate to public advertising, the operation of boards and the appointments process. The purity of the position that has been argued might emerge and what has been proposed might be effective, whatever it leads to over time, but I do not believe that that will happen. That has not been the experience in Northern Ireland.
5.30 pm
My amendment is designed to impose a duty on people who make appointments to the judiciary. I do not think that they should be without such a duty; they should not 50 have 52 cards to play with. They should not have a free hand because they have a duty to ensure that the judiciary is not only appointed on the merit principle, but reflects the community that it serves. Is that asking too much of any legislation? Is it imposing too much on any commission? I do not believe so. My amendment is fully consistent with the review's recommendation that
it should be a stated objective of whoever is responsible for appointments to engage in a programme of action to secure the development of a judiciary that is as reflective of Northern Ireland society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit. What better way is there to state such an objective than to enshrine it in legislation? I believe that my amendment, gentle and innocuous as it is, achieves that and I recommend it to the House.

§ Mrs. Patsy Calton (Cheadle)
As it turns out, I want simply to express my support of the hon. Member for Newry and Armagh (Mr. Mallon), who has been infinitely more eloquent than I could possibly be.
I was pleased to hear the Minister use the word "reflective" on at least half a dozen occasions. I am very pleased that he did so, given the arguments that we had in Committee about reflectiveness versus representativeness when we discussed the need to ensure that lay members of the Judicial Appointments Commission reflected the community. I am pleased if he has accepted the arguments that were advanced. I hope that he has done so, as the word "reflective" is more precise in doing what we are trying to achieve and perhaps less ambiguous than "representative".
I would like to support the views expressed by the hon. Member for North Down (Lady Hermon). I agree that merit must be the principle on which judges should be appointed. But to argue that having a reflective group of people doing that job might mean that we end up with people who are not of the highest quality is to argue that women and people from ethnic minorities are less intelligent or less able to do their jobs. That is the current position, and it is nonsense. In Committee we argued strongly that positive action is needed to ensure that merit is recognised, because at the moment, in all sorts of ways, it certainly is not.

§ Mr. Browne
What does the hon. Lady think that part I of the Bill is about?

§ Mrs. Calton
I am sure that the Minister intends that merit should be recognised, but the problem is that leaving it out of the Bill means that it may not be. I hope that he will have another change of heart.

§ Mr. McNamara
I was surprised by my hon. Friend the Minister's comments, especially on the amendment moved by my hon. Friend the Member for Newry and Armagh (Mr. Mallon). I found nothing in it that seeks to undermine the independence of the judiciary or to prevent the appointment of men and women of merit from different communities.
I am worried about the fact that the very people who will adjudicate on matters involving equality, merit and the whole paraphernalia of human rights law in Northern Ireland will be the only people who are not subject to that legislation. It is nonsense to turn things upside down in 51 that way. Nobody is trying to suggest that merit should go out of the window; certainly, my hon. Friend's amendment does not do so. It is in nobody's interests not to have judges of merit, distinction and independence. We want them to have all those qualities, but we also want them to be women and from ethnic minorities, to reflect the composition of the whole of society. As my hon. Friend said, they may have a background in the Democratic Unionist party, Sinn Fein, or whatever. If they have the qualities of experience, training and intellect, they will get through on merit, but they should also be reflective of society.
Judges will consider matters such as fair employment, human rights, the composition of the civil service and of local government and the operation of equality law in the private sector and in the professions, yet they will not be appointed under equivalent criteria. That is nonsense.

§ Mr. Browne
My hon. Friend neatly encapsulates the contradiction in his argument. One cannot guarantee that an individual judge who hears such a case in any circumstances is reflective of society in himself or herself. That cannot be achieved.

§ Mr. McNamara
With the greatest respect, that is not truly applicable. For a start, judges are allocated cases in a way that takes account of such factors. More important, what matters is the whole ambience of the process by which they are appointed. It is nonsense to argue that that should not apply to judges, but should apply to the upper echelons of the civil service, the police, the Policing Board and various other organisations, and then to say that middle-aged, mainly Protestant people are going to be judges and that we are not going to try to change that reflection of society.

§ Mr. Andrew Turner (Isle of Wight)
Did I hear the hon. Gentleman correctly? Did he suggest that when more than one judge considers a case, that bench of judges should be reflective of the community?

§ Mr. McNamara
No, the hon. Gentleman did not understand me correctly. What I said was that, when the judges are selected, there should be an ambience that accepts this particular method, in which they are reflective and representative of society as a whole.

§ Lembit Öpik
Is not the hon. Gentleman saying that this is a matter of having a strategic commitment to reflectiveness in the entire system? To look at an individual case and say that a judge has to be one thing or another at that point does not negate the point that the hon. Gentleman and the hon. Member for Newry and Armagh have made. Does he not also agree that the Minister's resistance to this proposal is a good example of unjoined-up thinking, given that he himself has argued this case at other points in this debate?

§ Mr. McNamara
I could not have put it better myself.

§ Mr. Deputy Speaker
I call Lady Hermon.

§ Lady Hermon
Thank you, Mr. Deputy Speaker. I was not quite sure whether the hon. Gentleman had finished, so I was playing safe.
52 I apologise to the hon. Member for Newry and Armagh (Mr. Mallon) if I did not appear to be helpful. I quoted from the Belfast agreement with the strong intention of being helpful to him. I believe that the Government should have a positive duty to promote equality of opportunity for women and ethnic minorities, and that that should be incorporated into the Bill by including words such as "representative" or "reflective". It was my intention to be helpful.
I want to go back to Government amendments Nos. 104 and 174, and to move the debate along a little. I appreciate the amendments that the Minister has tabled to deal with the ambiguity in clause 2—a subject that was raised in Committee. The clause states: The First Minister and deputy First Minister,"— I hesitate to read the next two words— acting jointly, may by order amend Schedule 1 by— (a) adding an office".
The amendment makes it clear that "adding an office" refers to an office other than the office of Lord Chief Justice or Lord Justice of Appeal". I appreciate that, but the Minister and other members of the Committee will recall that I was concerned that High Court judges were listed in schedule 1 rather than being treated as being among the "most senior judicial offices" in Northern Ireland, as I think they should be.
The Minister was good enough to clarify the earlier ambiguity. Will he now clarify the ambiguity that still exists? If the First Minister and Deputy First Minister could, on a good day, agree to act jointly, could they omit an office such as that of High Court judge? If they were to omit such judges, what would happen to that office? Would it automatically fall into the category of most senior judicial appointments? What would happen if the First Minister and Deputy First Minister decided, by order, in their wisdom, to omit High Court judges? That appears to be an ambiguity that has been left unaddressed.
In tabling amendment No. 70, I proposed the alternative arrangement of the Lord Chancellor setting up a tribunal in the unlikely event of the removal of the Lord Chief Justice. I know that I do not have support for that proposal, but there seems to be a genuine problem here. It has been written into the Bill on so many occasions that the First Minister and Deputy First Minister will be obliged to act jointly. With the best will in the world, those posts might be occupied by two politicians who might not be able to act jointly, and there should be an alternative arrangement for very serious occasions such as the removal of the Lord Chief Justice. The fact that such an occurrence would be most unlikely gives me some reassurance that the First Minister and Deputy First Minister would take the responsibility seriously and reach agreement. In the light of that, I am quite happy not to press my amendment, although I should like the Minister to address the ambiguity that remains in clause 2(2).

§ Mr. Gregory Campbell (East London derry)
I take no particular exception to Government amendments Nos. 104 and 174, but I want to allude briefly to amendment No. 169, tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The establishment of the Judicial Appointments Commission caused considerable discussion 53 not only in Committee but among many people in Northern Ireland, because of the proliferation of commissions there and because of Her Majesty's Government's clear failure in the past to make any serious effort to ensure that commissions reflect the community.
I listened with interest as the hon. Member for Newry and Armagh outlined his perception of the difficulties arising from that failure accurately to reflect the community in Northern Ireland. I found myself asking in what other society there would be a fair and accurate reflection of the community in its judicial appointments, but I can only follow the hon. Gentleman's arguments about the commissions that he mentioned.
Within the last month the Government have accepted the need to redress the imbalance that existed in the Human Rights Commission. Rather than redressing it, however, they compounded it by appointing a number of people, none of whom reflected the community that my party represents. Unfortunately, the same applies to the Parades Commission. I would like to hear from the Minister how the Government intend to ensure that the Judicial Appointments Commission will, as reasonably as can be expected, be truly reflective of the community divisions that exist in Northern Ireland.

§ Mr. Browne
I rise to deal with some of the points that have been raised in this debate. If I am not comprehensive in my answers, I shall endeavour to write to hon. Members on whose points I have not picked up.
I thank the hon. Member for Reigate (Mr. Blunt) for his support for the Government amendments. In relation to his own amendments, I am happy to give him the undertaking that I will reflect upon them. As he knows, when I say that, it is more than just being polite, although he periodically defines it as such to score political points. He knows that throughout my stewardship of my portfolio, I have considered everything that he has put before me. That does not mean that I have to agree with everybody, but I shall reflect on the issues that he has raised.
The hon. Member for Cheadle (Mrs. Calton) ought not to read too much into my use of the vocabulary in the amendment. She sought to invite me into an area into which you, Mr. Deputy Speaker, might chastise me for going, as it is not necessarily relevant to the amendments before us. The hon. Lady ought to be conscious of the fact that the use of the word "reflective" in this debate was a reflection of the use of the word in the amendment. I caution her not to read any more into it than that: the matter certainly does not bear extending in the way that she sought.
The hon. Member for North Down (Lady Hermon) asked a specific question, and I have had the answer to it confirmed. Should the First Minister and Deputy First Minister seek to legislate to omit any judicial office from the list in the schedule, they would be required to make alternative legislative provision for such an appointment. That legislation would, of course, require cross-community support, so it would not be possible for the First Minister and Deputy First Minister—by omitting only—to leave High Court judges in a position in which there was no appointments procedure for them. The judges would not automatically fall into the senior appointments category. The hon. Lady asked whether that would be the case, but it is perfectly clear from the Bill 54 it would not. Alternative arrangements would need to be legislated for by those who sought to omit the judges in question.
The bulk of the debate has been concentrated on the amendment tabled by the hon. Member for Newry and Armagh (Mr. Mallon). The more he told me that his amendment was innocuous, the more I suspected that he did not believe it. Whether or not it is innocuous, the sentiments behind it are shared throughout the House and by the Government. I do not criticise the hon. Gentleman for seeking to achieve his objective, but I chastise him a little for slightly misrepresenting—totally accidentally—my argument in my opening remarks.
I did not seek to say—I do not think that the hon. Gentleman was trying to give the House the impression that I did—that the merit principle alone would resolve the problem. That was why I intervened on the hon. Member for Cheadle. We cannot debate this issue except in the context of the Bill. The whole of part 1, which is extensive, detailed and ground-breaking in terms of United Kingdom legislation, is designed to achieve a detailed and important infrastructure to ensure a transparent, open appointments system that allows those of merit to move into high judicial office, and other judicial office, in Northern Ireland.
To claim that I am saying to the House, directly or by implication, that if we have faith in the merit principle, it will deliver, is to misunderstand entirely the Government's position and mine as the Minister responsible. The review accepted that change, modernisation and a new structure were needed, and the objective of that new structure was the very one that the hon. Gentleman seeks. We want to attain that shared objective by the use of the merit principle in the context of that infrastructure.

§ Mr. Mallon
I sincerely apologise if I have misrepresented the Minister's words in any way. I did not intend to. As a matter of fact, I am convinced that I did not, but we shall leave that to further judgment.
I agree with the Minister about the objective—there is no question of any hon. Member being at odds with the Government about that. Surely the best way to set about achieving an objective is to put it in the legislation rather than leave it floating in the ether, hoping that some of it will stick.

§ Mr. Browne
I am grateful to the hon. Gentleman. I am sure that when he checks the Official Report tomorrow, he will discover that my recollection of what I think he said inadvertently is correct. However, we can now move on in the spirit in which we have debated these matters.

§ Mr. Bill Tynan
(Hamilton, South) rose—

§ Mr. Browne
Let me first expand on my point. There is a shared objective—and a shared sentiment—but a debate about how best to achieve it. The Government have firmly nailed their colours to the mast of the review's recommendations, and we endeavour to follow them as closely as possible. There will always be a difference of opinion about whether the recommendations have been properly translated into legislation. I accept that there is room for debate at the margins. However, the review recommended in elaborate detail an open and transparent 55 Structure to apply the merit principle—by which the Government have set their stock—to the appointment of the judiciary,

§ Mr. Tynan
There is a deep feeling that using the merit principle alone will exclude the possibility of a truly representative judiciary in Northern Ireland. On the basis of the argument that has been put, would it not be wise to give comfort to those who feel so strongly about the issue that they have tabled this amendment?

§ Mr. Browne
I am grateful to my hon. Friend for giving me the opportunity to clarify my position further. 1 think I have made it clear in Committee and in the House on more than one occasion that I have faith in the review body's recommendations, but it is important to recognise that the review body dealt with the issue of the reflectiveness of the judiciary, as submissions were made on the matter.
As hon. Members including the hon. Member for Newry and Armagh have pointed out, recommendations 69, 89, 90, 91 and 92 deal with aspects of the issue raised in the amendment. Including aspirations in the Bill—my arguments have not been accepted, but there is merit in them—may accidentally have the opposite effect to that which the hon. Gentleman seeks. The innocuousness of the amendment may mask that problem, and the judiciary may be dragged directly into issues of political balance as a result. The contribution of the hon. Member for East Londonderry (Mr. Campbell) may be a forerunner to such a debate if we start to use such descriptive nouns collectively or individually in relation to judges.
Instead of depending on a statement of principle, as I am being urged to do, the Government set out their response to the recommendations on page 40 of their implementation plan. That response is to accept those recommendations: to accept that the Northern Ireland court service should take the lead responsibility in delivering them, and to set out in general terms what steps would be taken to achieve the objectives set out in the recommendations. Our response is not one of inactivity but of taking the issues forward in exactly the way that the review recommended.

§ Mr. Garnier
I was interested in the Minister's criticism of putting aspirations into the Bill, which is exactly the line of argument that I deployed against him when we considered clause 53 and the aims of the youth justice system. He took a different view then, but I shall not detain the House on that point.
The amendment tabled by the hon. Member for Newry and Armagh asks for a quota system, but one cannot have justice by quota system. One can have justice only by having dispassionate judges applying the law. The hon. Gentleman simply wants to include in the Bill his aspirations and political hopes concerning the appointment of the judiciary, rather than applying his mind to the real issue of how best to ensure that judges apply the legislation presented to them by the House and the common law.

§ Mr. Browne
I am grateful for the hon. and learned Gentleman's contribution. He is a paid-up member of the school of thought that there should never be a statement 56 of principle in any piece of legislation. Other hon. Members in Committee and in the House always want statements of principle, and would be happy to replace all specific legislation with a series of such statements. I am happy to occupy the middle ground. When principles are appropriate and serve a purpose, they can be included. When they do not serve a purpose and they are just hot air, there is no point in including them. However, when there is potential for statements of principle to pose a danger—for the reasons pointed out by the hon. and learned Gentleman—it is better not to include them.
The Government's argument is that the appropriate way to respond to the review commission's recommendations is to legislate when there are good and persuasive arguments for legislation. That point applies to the whole of part 1. However, when issues such as reflectiveness are better addressed in other more practical ways, we should move to take other steps. I think that our position is sustainable.