HC Deb 26 April 2004 vol 420 cc644-71
Lembit Öpik (Montgomeryshire) (LD)

I beg to move amendment No. 4, in page 2, line 3, leave out from 'Chancellor' to end of line 5.

Mr. Speaker

With this it will be convenient to discuss the following amendinonts:

No. 5, in page 2, line 6, leave out 'their' and insert 'his'.

No. 11, in page 2, line 9, at end insert—

'(1A) At the beginning of subsection 8 of section 3 of the 2002 Act, insert "The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates". (1B) (1) In Schedule 2 to the 2002 Act in paragraph 11 (Delegation) for sub-paragraph (1) leave out from "functions" to end and insert "except the function of selecting a person for appointment, or recommendation for appointment, to an office, to any of its committees". (2) In Schedule 2 to the 2002 Act, leave out paragraph 12.'. No. 13, in page 2, line 9, at end insert—

(1C) In Schedule 2 to the 2002 Act after paragraph 8 insert— 8A (1) A Committee for interviewing for appointment as a High Court Judge shall consist of the Lord Chief Justice or a Lord Justice of appeal acting under section 3(4), a lay member and a judicial member. (2) A Committee for interviewing for appointments at deputy resident magistrate and above shall include one member of the judiciary at the tier to which the appointment is to be made. (3) A Committee for interviewing for appointments to a tribunal shall include a person with detailed knowledge and experience of the tribunal concerned.'. No. 25, in page 2, line 18, leave out clause 3.

No. 23, in clause 3, page 2, leave out lines 26 to 40.

No. 9, in schedule 1, page 12 line 5, at beginning insert 'in section 1 of the 2002 Act, leave out "of Justice".'.

4 pm

Lembit Öpik

Amendments Nos. 4 and 5 stand in the name of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who has had the pleasure of inspecting every detail of Kirkwall airport on a fog-bound morning. I have decided to blame the Government for the weather, which is clearly a conspiracy, because they are so afraid of the amendments that we have tabled.

The Bill establishes a judicial appointments commission for Northern Ireland. It will comprise five judges and a member of the Law Society, plus members of the lay community. Under the criminal justice review, lay members of the commission should be representative of the whole community—for an obvious reason: it is sensible to d so. However, the Bill introduces a requirement that all members of the commission should be "reflective of the community".

My hon. Friend the Member for Orkney and Shetland made several important pints in Committee. It is apparent that the review recommended that lay membership of the commission bet representative of the community, but it did not recommend that the entire membership should be. The Government proposals go beyond that, making the entire commission representative, which poses a number of theoretical and practical difficulties.

The amendments would restrict the duty to the Lord Chancellor and restrict the ambit to lay members of the commission so that only the Lord Chancellor could appoint such members. The Government have adopted a different position, but I do not understand what they are trying to achieve that they could not have achieved originally, or how, in a practical sense, they can meet their objectives. We have nothing against the principle that the commission should be representative of the community as a whole. Who could dissent from that? However, we are worried about how that will be achieved in practice.

The amendments would change the Bill back to the position favoured by the criminal justice review, so that the need to be representative of the community would apply only to lay members, who would be appointed by the Lord Chancellor. Our point is that, in practice, it would be impossible statistically for the commission to be representative of the whole community. The census figures—I shall not read them out—make that perfectly obvious.

Through their comments and actions, the Government repeatedly give the impression that they believe that the community as a whole consists of two large bodies of people—broadly speaking, loyalist Unionists and republican nationalists.

Is the Minister at long last going to acknowledge what many of us have said a number of times: the Government, to some extent, entrench divisions in the community by talking always about the two communities or the two halves of the community? It would be progress if he at least said that the Government accept that the Northern Ireland community is more diverse than many ministerial comments have implied.

In order to justify their position, the Government must explain several things. How exactly do they perceive the process of judicial appointments? What pressure would be put on the Law Society and on individuals to ensure that they were representative of a cross-section? An individual will come from a particular background, and unless the Government are suggesting a strange hybrid person who has spent some time in each community and in each social and ethnic background, it is clearly preposterous to think that one person can represent a cross-section. If the Government do not intend to enforce that provision for each of the four groups making appointments, the question remains of what process the Minister expects to be used to ensure that each interest group works with the others so that the commission as a whole is representative. It will not be good enough for the Government simply to speak against the amendments without giving specific and clear explanations of how they will resolve those difficulties. We are talking not about draft legislation or mere ideas, but about specific rules that will be made on the basis of what the House decides.

Another question is whether the Minister is saying that the requirement to represent a cross-section applies to disabled people, women, young people and so forth.

I shall be interested to hear what the Minister and other Members have to say. The Minister did not give a plausible explanation on those points in Committee. If he believes that a reflective composition is worth pursuing, he must give us an assurance that the Government have thought through the detail. In the absence of a plausible response, I may have to divide the House.

Mr. Trimble

I support amendment No. 4. It is right, largely for the reasons advanced by the hon. Member for Montgomeryshire (Lembit Öpik). I can reinforce his main point, which was that the criminal justice review recommended that the lay members should be representative of the community, which is understandable since they are there to represent the community. Judicial members, on the other hand, and those appointed to represent the legal professions, are not appointed to represent the community but are there to represent the judiciary and the legal professions. One might in turn hope that those bodies would bear some resemblance to society at large, but that is not the point. The point is that judges are appointed on merit and the legal professions are formed by persons who enter into them having complied with the necessary requirements and training. They are there to represent their bodies.

A fundamental mistake underlies the provisions before us. The original legislation was right and the new legislation in the Bill is wrong. I do not want to speak at great length on this point because we debated it in Committee, where I raised the particular provisions that the amendment would remove. The Bill lays a "duty" on those responsible for making nominations to make such arrangements … as will, so far as is practicable, secure that the membership of the Commission is reflective". They are placed under a statutory duty to make arrangements. I asked the Minister in Committee what arrangements would be made, and I was thinking especially of the Law Society and the Bar. Those organisations can each nominate one person, but how can they make that one person reflective of the community as a whole? How can they enter into arrangements with others to achieve that objective? Some possible arrangements would involve unlawful conduct.

We asked the Minister to give an indication of what the arrangements might be. In Committee, I asked: Will he also undertake to give either the Committee or the House on Report some indication of what arrangements he has in mind and how they will operate in practice? The Minister responded by saying: I certainly give the right hon. Gentleman that undertaking."—[Official Report, Standing Committee D, 25 March 2004; c. 32.] Unless I have missed something, the Minister has not yet given us any indication of what those arrangements might be. I hope that at some stage in this debate the Minister will redeem his promise to me. I do not know whether any sensible or lawful—in the light of anti-discrimination legislation—arrangements can be made, and that is an important point because it means that clause 2 is wholly misconceived. If the hon. Member for Montgomeryshire wishes to press the point to a Division, he will have my support—of course, I act on behalf of my party.

Amendment No. 11, in my name, also addresses the issue of the lay members. Understandably and rightly, the criminal justice review said that the lay members should be reflective of the community as a whole, but it also added some further comments about who the lay members should be. Amendment No. 11 seeks to add to the Bill these words from the criminal justice review: The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates. It is important that those, or similar, words are inserted into the Bill; otherwise, it might become the practice that the lay persons can be anyone selected to represent an element of the community. That would be a departure from the intention of the criminal justice review. As the Minister knows, I am concerned that the way in which the commission is constituted will result in bringing a wholly unwarranted political influence to judicial appointments. The objective of the amendment is to try to minimise the addition of political influences on judicial appointments. Without the addition of the words of the criminal justice review, there is a danger that the lay members will become political appointees there simply to represent political viewpoints. If the legislation is left unamended, that is certainly what will happen, and that is why I would like the words of the criminal justice review to be written into it.

Amendment No. 11 would also deal with another serious problem. Great effort is being made to ensure that the commission is representative of the community but, when it comes to how it will operate in practice, we find that, under the schedule to the Justice (Northern Ireland) Act 2002, the commission can delegate its functions to a committee that could consist of only one member of the commission. What is the point of trying to ensure that the commission reflects the community if it can then delegate its functions to a body that has no such requirements or standards?

The only safeguard is that at least one member of the commission must be on the committee. We must remember that we are potentially delegating to the committee the power to make judicial appointments, but no safeguards are provided as to the composition of that committee. The idea of delegating the entire function to the committee and enabling the committee appointed by the commission to make the appointments is, in itself, a mistake. If there is to be a committee that includes people other than those on the commission, we should by all means allow the committee to conduct the process of interviewing and deciding whom it feels are the best persons to be appointed, but it should report back to, and have its conclusions confirmed by, the commission. That would be much better practice.

4.15 pm

Amendment No. 13 attempts to provide a structure for the commission's committees. The Minister will no doubt recognise the language in the amendment. It would insert a new paragraph into schedule 2 to the Justice (Northern Ireland) Act 2002, and paragraph 8A(1) quotes word for word what the Minister said to me in Committee. I raised the point about the undesirability of delegating to a committee and having no provision about the committee's composition. He triumphantly told me that everything was agreed and that, with regard to the appointment of a High Court judge, the committee would consist of the Lord Chief Justice, a lay member and a judicial member. That is not a bad arrangement, but we would like to rely on something more than a comment made by the Minister in Committee. If he thinks that that is a desirable structure for a committee considering the appointment of a High Court judge, why does he not include such a provision in the Bill? That is precisely what paragraph 8A(1) would do.

Paragraph 8A(2) is again taken word for word from the criminal justice review, which recommends that, with regard to judicial appointments, a member of the judiciary at the tier to which the appointment is to be made should be on the Committee. It would be appropriate to have an analogous provision for appointments to the tribunal, and that point is covered in paragraph 8A(3), which states: A Committee for interviewing for appointments to a tribunal shall include a person with detailed knowledge and experience of the tribunal concerned. That is wholly in line with the spirit of the criminal justice review.

In the debates on Second Reading and in Committee, the Minister time and time again pointed out that the objective of the Bill was to implement the criminal justice review. Amendments Nos. 11 and 13 would do precisely that. The challenge for the Minister is whether the words that he uttered in Committee and on the Floor of the House about implementing the committees to be set up by the commission are genuine. If they are, I expect him to accept the amendments and particularly those that would give effect to what he himself has said.

I am reminded of the request that I made at the outset that the Minister redeem the promise that he made to provide us with information about the arrangements that will be made to give effect to the Bill. As presently drafted, its provisions for the appointments by the judiciary and the legal professions are not capable of being implemented in practice. However, I shall wait to see what he has to say.

Mr. Andrew Hunter (Basingstoke) (Ind Con)

Amendments Nos. 11, 13 and 25 embody arguments that the right hon. Member for Upper Bann (Mr. Trimble) made in Committee. I supported him then and I do now. If he has it in mind to press them to a Division, he will have the support of the Democratic Unionist party.

I want to put to the Minister an interesting issue that arises out of amendment No. 11, whose paragraph 8A(1) refers to lay members.

We know, of course, that devolved government in Northern Ireland has been suspended because one of the main political parties, Sinn Fein, remains inexorably linked to the IRA, and the IRA is one of the terrorist organisations that is continuing violence and refusing to decommission. The concept of being "reflective of the community" logically means that the composition of the commission should reflect Sinn Fein. To put it bluntly, that would be an intolerable state of affairs, especially in light of the recent Independent Monitoring Commission report. It is something that no true democrat could allow. I hope that the Minister will clarify whether his current thinking is that "reflective of the community" includes Sinn Fein representation on the judicial appointments commission.

I offer highly qualified support to amendments Nos. 4 and 5, and I shall explain why. As I shall argue in greater detail when I come to amendment No. 23, the reason arises from the fact that my hon. Friends and I reject the concept of being "reflective of the community". However, if that concept is to be part of the Bill and become law, it is essential that amendments Nos. 4 and 5 are accepted. Hon. Members have referred to the composite nature of the judicial appointments commission: five members appointed by the Lord Chief Justice; a barrister nominated by the General Council of the Bar; a solicitor named by the Law Society; and five people who were originally to be appointed by the First Minister and Deputy First Minister but who are now to be appointed by the Lord Chancellor. The point has been powerfully made about how on earth those disparate bodies are to agree nominations that are "reflective of the community". Amendment No. 4 would put that responsibility solely in the hands of the Lord Chancellor, and it is the common-sense, practical way forward. If we are to have the concept of being "reflective of the community" enshrined in the Bill, the Democratic Unionist party supports, with the reservations that I have explained, amendments Nos. 4 and 5.

The purpose of amendment No. 23 is straightforward and transparent. It addresses what was for many hon. Members, both Unionist and Conservative, a grave concern that we expressed on Second Reading and again in Committee. If the amendment were accepted, the Bill would require that 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. No other consideration would be taken into account. We argue that the well-intentioned concept of being "reflective of the community" is fundamentally flawed and impractical. Only the qualifications and qualities of individuals should be considered when judicial appointments are made. There is a compelling argument to be made not only that proposed new subsections (9) and (10) undermine and weaken the requirement of subsection (8) that appointments should be on the basis of merit, but that, in practice, appointments reflective of the community would ultimately be incompatible with appointments based on merit alone. Nothing that the Government said on Second Reading or in Committee, and nothing that we have heard today, calms our fears on that issue.

The Minister argued on Second Reading and in Committee that confidence in the judicial system is imperative. No one disagrees with that, but I do not accept that there are any shortfalls of confidence in Northern Ireland's judiciary worthy of merit, or that there is any need for the provisions contained in new subsections (9) and (10). Indeed, those provisions are more likely to undermine confidence in judicial processes and procedures than to promote it. I ask the Minister a simple question: where is the evidence to support the allegation that Northern Ireland's judicial system and the judges who are an integral part of it are unfair or biased? The truth is that there is no lack of public confidence in the judiciary—quite the reverse. The judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has justly earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law. Members have been appointed solely on merit without creating any significant or telling imbalance. Public confidence in the judiciary has deservedly been very high indeed.

We know that the concept of being "reflective of the community" has replaced that of being "representative of the community". Perhaps that is a small step in the right direction, but adopting "reflective of the community" is a dangerous move toward the mistaken and utterly fallacious approach of seeking equality of outcome—a 50:50 outcome. Concern about "reflective of the community" is compounded when we recall that the genesis of the Bill lies in the March 2003 Hillsborough declaration—a measure that emerged from wheeling and dealing to re-create the climate that would enable the restoration of devolved government. That is not a sound basis for legislation and it does not command confidence. We should remember also that equality of outcome and approaches designed to secure it were neither sanctioned nor remotely justified by the Belfast agreement. Equality of outcome is not what the Equality Commission is charged to achieve or what is meant when human rights instruments speak of equality. In all those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case in judicial appointments and no additional legislation is needed.

In Committee, I drew attention to the Minister's words in his winding-up speech on Second Reading, when he said: The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society."—[Official Report, 10 March 2004; Vol. 418, c. 1616.] Those words encapsulate a fundamental difference in thinking between the Government and Opposition Members. The Minister argues that the judicial system must be modernised to keep in line with the "changing needs of society". Of course society changes constantly and institutions adapt—they evolve with changing circumstances. Our quarrel is with the imposition of change by legislation when changes should be allowed to happen through evolution.

We feel especially strongly about judicial appointments because we do not fall for the line that the Bill sets out to modernise the appointments system. The Bill politicises appointments. The system of appointments has been dragged into the sphere of politics to serve a political purpose demanded at Hillsborough. We certainly support a system of transparent, open and fair judicial appointments, one that is free from political intervention and politicisation, but we do not believe that that objective can be achieved by new subsections (9) and (10).

The matter is one on which we feel sufficiently strongly to wish to divide the House. None the less, I look forward to hearing what the Minister has to say.

4.30 pm
Mr. Mallon

I shall try briefly to make a rather broad point and to challenge an assumption that I have heard on at least four occasions so far in the debate—that somehow or another, if one has a political view, be it Unionism or nationalism, a Labour view or a Conservative view, one cannot be reflective of the community in which one lives. We should challenge that.

It was astounding that the entire thesis of the hon. Member for Montgomeryshire (Lembit Öpik) verged on a quasi-political, quasi-religious definition of a community. A community is not a sectarian football match or two sectarian teams. It is much deeper and much more fundamental than that. There are many more strands to it. Let me put it this way: when I sit on these Benches, I hope I am reflective of the community that I serve. I have no doubt that Members who sit on the other Benches hope that they are reflective of the communities that they serve. Even though many people in the community would not see me as representative of their political views, they might very well see me and others as being reflective of the type of standards that one might require in the whole political process.

We should challenge the notion that the matter is to be seen in little boxes: there goes the nationalist representative, and there goes the Unionist representative. How do we make room for the Democratic Unionist party representative, then get the republican representative in and, just to keep everything right, squeeze an Alliance person in at the end? It is not like that. Those attitudes are not reflective of the community in the north of Ireland. With all its problems, the community is much bigger than that and much wider. That is where we should look carefully.

There is a second element that we should consider—the extent to which those whom we charge with the protection and implementation of law are aware of what makes people tick in the community in which they live. I pose that question because there is an ivory tower attitude in some parts of the north of Ireland, whatever the political or religious views of those with that attitude. For far too long that ivory tower attitude was preserved in the legal profession. In that community there was a special place—an ivory tower—that was protected and is still being protected by the legal profession.

I noted the fine speech made by the hon. Member for Basingstoke (Mr. Hunter). I detected the tones of legal hurt in his speech, almost a confirmation that people have at last had the audacity and, in my view, the good sense to start knocking on the walls of the ivory tower and rattling a few of the cages inside it.

Lembit Öpik

I am listening to the hon. Gentleman's comments not just about the ivory tower, but about compartmentalisation, which he does not consider an appropriate way forward. Surely he recognises that his support for the Government's arrangements causes more compartmentalisation by creating an artificial requirement, beyond the lay members, to achieve the kind of outcome that we all want in principle, although it is hard to see how we can achieve it in practice without more stress and more friction.

Mr. Mallon

I thank the hon. Gentleman for that point, but I do not agree with it. Returning to my original thesis, the reality is that one can be of a community without representing every political or religious view within it. One can bring an ethos that people who do not share one's political or religious views recognise to the legal profession, politics or anything else. That is why it is right to challenge the notion advanced by the hon. Gentleman and others, and to point out that rattling the legal cages was necessary to create a broader approach. If one examines the history of the legal profession in the north of Ireland, one must admit, perhaps grudgingly, that it was the preserve of a very few, whoever they may have been and whoever chose them.

Mr. Dodds

The hon. Gentleman talks about rattling the legal cage. On judicial appointments, can he indicate where the current appointments to the senior bench in Northern Ireland—the Lord Justices of Appeal and the Lord Chief Justice of Northern Ireland—fail to reflect the community?

Mr. Mallon

I am not saying that those appointments fail to reflect the community; I am saying that there has been great resistant to the change, and that resistance remains within thy, profession. The hon. Gentleman entices me to do what I am arguing against—to label people in political or religious terms—and I will not do so. I repeat that one does not have to reflect the political or religious attitudes of all the people within a community in order to represent them.

In this House, we are all elected, but does that mean that all hon. Members reflect the constituencies that elect them? I do not believe so. There is another part of this Parliament, and it bears examination, too—I do not want to stray into a different debate, but I hope that that matter will be resolved soon. The right hon. Member for Upper Bann (Mr. Trimble) is delighted, because that issue is an obvious advantage for him and his party, but the hon. Member for Belfast, North (Mr. Dodds) does not delight in it. Perhaps things will change when appointments do not reflect the community, but deal only with this terrible thing—the danger of the influence of politics in appointments. I leave the matter there.

Finally, there is a pristine honesty about those who consistently tell us that there should be no political input to judicial appointments, within a system where, as in the Republic of Ireland, judicial appointments are made by the political process.

I am as keen as the right hon. Member for Upper Bann or anyone else to ensure that political opportunism does not apply to judicial appointments, but let us at least be honest when we consider the arrangements in the Bill. I could make very strongly some points about appointments outside Northern Ireland. I could refer to the two Governments who, as the hon. Member for Basingstoke alleged, proposed this legislation at Hillsborough. I do not intend to stray into making those points, but I say this: I wish to challenge the notion that one cannot be reflective of the community if one does not share the political views of all the people in it.

In that context, we must reconsider the distinction that has been made between appointments among the legal profession and appointments of lay people. That has a tinge of ivory tower syndrome: it suggests that it is okay to have a certain arrangement for lay people but that we must not, for heaven's saKe, have it for the people who have come within the compass of the ivory tower. It should apply to everybody, because the whole thesis of reflectiveness is such that such a distinction cannot be made.

Mr. Hunter

I confess that the hon. Gentleman's argument has left me completely bewildered. Is he effectively saying that appointment should be by merit alone, so amendment No. 23 should not be supported?

Mr. Mallon

I believe that all appointments should be made on the basis of merit that is reflective of the community. I remember—this may be before the hon. Gentleman's time and too far back for many people's memories—when people were appointed to the bench in Northern Ireland who had never been seen in the north of Ireland before: they had been educated and had practised abroad, and all of a sudden they were senior judges in the north of Ireland. That arrangement is not reflective of the community. I thank God that the days are gone when only those within big house Unionism got on to the bench in the north of Ireland, and I should like to think that hon. Members within the Unionist community would support me in that. I notice that the right hon. Member for Upper Bann is getting excited. I shall try to end that situation for him.

I believe that this measure is needed. We should not give a position of privilege to people in the legal profession, who already have the huge privilege of administering the law that Parliament makes for them. That should be privilege enough, without our copper-fastening it for them.

Mr. Garnier

The hon. Member for Newry and Armagh (Mr. Mallon) had the privilege of serving on the Standing Committee on the Bill that became the Justice (Northern Ireland) Act 2002, and we had the pleasure of listening to many similar speeches from him. He and I disagreed on the need for the judiciary and the judicial appointments commission to be representative of the community in Northern Ireland", as section 3(8) of the 2002 Act states. Although we disagreed about the need to lay that down in statute, I could understand the worries felt by the hon. Gentleman, people like him, people whom he represents, and people whose views he reflects.

4.45 pm

I do not happen to believe that justice is capable of being described in the terms that lie behind the 2002 Act and this Bill. However, to use a disgraceful and awful expression, we are where we are. Nonetheless, I am no more convinced of the need for the adjective "reflective" than I was, during the Standing Committee in 2002, of the need for the use of the word "representative". I am provided with some hope, however, when I see the words "of the community" which follow "representative" or "reflective". To me, the concept of community does not include those outside the law or those who wilfully seek to destroy our democratic institutions through terrorism, violence or subversion.

If the Government are honest to us, to the people of Northern Ireland and to those who wish to be appointed to the judicial appointments commission, they will make it clear that they will not seek to reflect or represent on the commission people who come from the terrorist and anti-democratic organisations. They will also make it clear that they will allow nominations to be put forward only from those groups, of whatever tradition, which are wholly signed up to the institutions of a democratic Northern Ireland and a democratic United Kingdom, and which believe that judges and senior judicial officers will do justice irrespective of their origins and the origins of the people over whom they will give judgment.

I know that the Government have great faith in the judiciary of Northern Ireland. The Lord Chancellor invited Lord Hutton, one of Northern Ireland's most distinguished judges, to chair the recent inquiry into the death of Dr. David Kelly, and there are many others like Lord Hutton who have served and continue to serve on the Bench of the Northern Ireland judiciary. When these judges try cases, be they criminal or civil cases, they do not say, "Ah, I am now dealing with a case involving an allegation of breach of contract. I will try it in a Protestant way", or "I will try it in a Roman Catholic way", or "I will try it in a Sinn Fein way", or "I will try it in an Ulster Unionist way". They try each case on the facts, and by applying the facts to the law.

Similarly, I feel sure that, when those judges are dealing with criminal cases, either with a jury or in a Diplock court, they do not treat the defendant in a particular way because he is a Protestant or a Catholic. They say, "The Crown has alleged the following, and I must assess the evidence laid against the defendant in support of the charge." If the defendant is convicted either by the jury or by the judge—after the judge has considered the matters before him to the requisite standard of proof—he will then be sentenced according to law. I know that the law in Northern Ireland is—as it is in England, Wales and Scotland—blind to the origins of the person in front of the sentencing judge, save only in relation to studying the pre-sentence report to ensure that a just decision is made in relation to that individual.

So we do not really need a judiciary—and, still less, a judicial appointments commission—which is reflective or representative of the community in Northern Ireland.

That is because, it seems to me, the matters of the rule of law and how judges behave are over and above, as well as separate from and not prepared to take account of, the community, except in the special circumstances of a pre-sentencing report.

I hope the Government can reassure me and the House that when they push through the amendment to the 2002 Act by way of a clause of the Bill, which we are considering through the prism of the amendment—they will do so, as they have the majority in the House—they will ignore wholly in respect of the term "representative" or "reflective" that part of the Northern Ireland population which is distinguished from the Northern Ireland community and which advocates terror and suborning the civilised and democratic institutions and court system in Northern Ireland.

I want next briefly to discuss the amendment tabled by the right hon. Member for Upper Bann (Mr. Trimble) in relation to the committee, or subcommittee, of the JAC that could appoint a judge. It looks very worrying. Schedule 2(8) of the 2002 Act says: The Commission may establish committees. Schedule 2(3) says: A committee or sub-committee may consist of or include persons who are not members of the Commission. That is fine if people are ordering biscuits or furniture for the commission, but if they are appointing judges they are moving into different territory altogether. Up to a point, that is catered for by paragraph 12 of schedule 2, which states: If the function of selecting a person for appointment, or recommendation for appointment, to an office is delegated to a committee or sub-committee, the committee or sub-committee must include a member of the Commission and, unless he is a lay member, a person who is eligible to be a lay member. Well, I am not sure that that went far enough to protect the integrity of the judicial appointments system, but this Bill makes me even more concerned and I share the right hon. Gentleman's anxieties.

Everything we do in the House is tinged with politics. My hon. Friend the Member for Basingstoke (Mr. Hunter)—I think he is still my hon. Friend—is a little naïve in thinking that we can pass legislation untouched by politics, even when we are discussing something as apolitical as the judiciary. He is perfectly right, however, to advance the arguments that he and his colleagues have advanced in his attack on the clause that he seeks to amend, because the Government seek not only to introduce to the judicial appointments commission and the judicial appointments system a less safe system of appointing judges on merit, as the right hon. Member for Upper Bann suggested, but, to go further, to provide for a system for tho appointment of judges that could skew that system against selection purely on merit towards selection of judges on some other either directly or quasi-political basis.

That concerns me, because as I said at the outset the appointment of our judges and how they behave should be wholly outside the realms of politics. Even in this jurisdiction, for the moment at least, the Lord Chancellor—although he is a politician to some extent, or at least a party political appointee—has selected judges in England and Wales wholly uninhibited by political consideration.

I say that of the current Lord Chancellor, I was happy to say it of Lord Irvine, the previous Lord Chancellor, and I dare say that it was equally true of their predecessors in Conservative Governments. It seems to me, however, that we should not expect the people of Northern Ireland to have judges of any other quality than the very best, selected for any other reason besides legal and judicial merit. To add into the selection process these extraneous and confusing reasons will lead to trouble.

I hope that the Government can reassure me on the points that I have raised, because matters related to justice are easily written off as boring, or a lawyer's whinge, when they are so important for the system of democracy in both the jurisdictions of Northern Ireland and England and Wales.

Mr. Dodds

I find myself in agreement with much of what the hon. and learned Member for Harborough (Mr. Garnier) has said. In particular, I want to emphasise his point in relation to the interpretation of the phrase "reflective of the community", which should not under any circumstances be taken to mean that appointments to the judicial appointments commission—or any other appointments in this area—should be permitted of those who support the use of violence, intimidation, threats and so on, or who are allied to the republican movement. Especially in the light of the IMC report, as pointed out by the hon. Member for Basingstoke (Mr. Hunter), those sorts of interpretations would be simply unacceptable and totally wrong. The same issues arise in the context of ongoing calls for members of Sinn Fein-IRA to be members of the Policing Board, for instance. If that happened, there would be people in control of the accountability of the Chief Constable and senior police officers who, as we have seen in the IMC report, are still wedded to violence and to carrying out activities on the streets of Northern Ireland through criminality and terrorism. That would simply be unacceptable as far as the people of Northern Ireland are concerned.

Another issue that concerns me in relation to the phrase "reflective of the community" is what we have seen as regards appointments to other public bodies and organisations in Northern Ireland that are supposed to be reflective of the community or, to use the slightly stronger term, representative of the community. I refer to bodies such as the Northern Ireland Human Rights Commission, the Parades Commission, the old policing authority and others, which do not in any shape or form represent or even reflect the viewpoint of the majority community in Northern Ireland. The Minister will be well aware of the complaints and criticisms—

Mr. Peter Robinson (Belfast, East) (DUP)

To strengthen my hon. Friend's point, does he agree that it is total hypocrisy to have an organisation known as the Equality Commission that does not have one member who would reflect the view of the largest party in Northern Ireland?

Mr. Dodds

I thank my hon. Friend for his intervention. He is absolutely right to point to another organisation, which I have not mentioned. As he says, its title implies that it is aimed at the promotion of the concept of equality, yet it, too, has been widely criticised on the grounds of not representing, or having on it those who would reflect or represent, the majority political viewpoint in Northern Ireland. We must therefore be careful when we address such issues in relation to Northern Ireland.

Judicial appointments should be made on merit alone. As the hon. Member for Basingstoke said in his eloquent contribution, we believe that the Government's proposals would go a long way to undermine the merit principle. We therefore wish to see those elements that would undermine it removed from the Bill today.

5 pm

I hope that the hon. Member for Newry and Armagh (Mr. Mallon) will feel able to agree with our amendment. It seems to me that the logical outcome of what he said would be his joining us in ensuring that, when it comes to appointments to the judiciary, merit should he the only consideration. Towards the end of his speech he spoke of big house Unionists' being appointed, and of people returning from abroad to be appointed. I should be interested to Know who he has in mind; I have no idea who on earth he could mean. I note that he did not take an intervention from the right hon. Member for Upper Bann (Mr. Trimble) on that.

The Northern Ireland judiciary are held in high esteem there. They act in the best interests of the community as a whole, as has been shown time and again during the most difficult and challenging periods in the history of the Province. The House would be well advised to accept the amendments, and not to introduce an element of political interference which I think will only damage the process and the confidence of people in Northern Ireland.

Mr. Swayne

I agree with the amendments. I want to concentrate on amendment No. 25, which raises the question of whether clause 3 is necessary. On Second Reading in the other place, Lord Mayhew—in terms echoed today by my hon. and learned Friend the Member for Harborough (Mr. Garnier)—said: In five years as Secretary of State for Northern Ireland and four years before that as the Attorney-General for Northern Ireland, I do not recall any serious lack of public confidence in the judiciary every manifesting itself. I suggest that there was a very good reason for that. Throughout the past 30 years, the judiciary of Northern Ireland, appointed as it his been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law."—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107.] What are we trying to fix here?

The key to making the judiciary reflective of the community is encouraging all sections of the community to produce suitably qualified candidates. That is a laudable objective, and if it succeeds it will follow that over a period the judiciary will come to reflect the community that has produced such candidates. That is happening here on the mainland as the judiciary change to reflect the increasing number of female and ethnic-minority entrants to the profession.

This is where we part company with the Government: they would turn a natural expectation into a duty. On 25 March, the Minister said: As we are seeing a change in the pool from which appointments are made, do we not expect that change to be reflected in those appointments? We would be surprised if the appointments were not reflective, so it is legitimate to build in a duty for them to be so."—[Official Report, Standing Committee D, 25 March 2004; c. 44.] I think the Minister is right to expect the appointments to be reflective, but entirely wrong to impose such a duty. Consider that that will inevitably, or at least potentially, compromise the principle of selection on merit alone.

Suppose that, unfortunately, it turns out that the best qualified candidate for a judicial appointment is from that section of the community that is already on balance over-represented in the judiciary, and that those who make the selection, considering the requirement to abide by the provision and their duty to ensure that the judiciary be reflective of the community, go for another candidate—a competent, qualified candidate but not the best candidate. We will then have crossed the threshold from a perfectly legitimate objective to affirmative action. That will have the opposite effect from what is intended in the clause. Rather than building confidence in the judiciary, it will undermine it.

Mr. Spellar

I note the comments of the hon. Member for Belfast, North (Mr. Dodds) about the Equality Commission and hope that, as I have recently invited new applications, he will encourage the widest possible pool of applicants for those positions. We look forward to seeing those.

My hon. Friend the Member for Newry and Armagh (Mr. Mallon) asked us to look at the wider perspective. It is worth while rehearsing the benefits of seeking reflectiveness in public bodies, principal among which is that they tend to reflect the composition of the community around them, which inspires confidence and ensures that good people are not overlooked when recruiting and promoting. Such an approach speaks of fairness and reflects criticism.

It is sometimes said in the advertising world that a good way of assessing an advertisement and whether it is working is to hold up a mirror to it and look at its mirror image. On that principle, we should consider whether we would argue that bodies should be unreflective—a position that would clearly be indefensible. With regard to reflectivity, schedule 2 to the 2002 Act requires the commission to report the following information relating to those who applied and were selected for judicial office: gender, age, ethnic origin, community background, and that part of Northern Ireland with which they regard themselves as most closely associated. To deal with the query raised by a number of hon. Members, political opinion is not included.

I appreciate that some hon. Members think—it was clear from the debate—that the Government are overplaying the importance of reflectiveness. Let me put it this way. Many people in Northern Ireland have been prepared to dismiss the important and good work of public bodies and public authorities with unfair criticisms. That undermines the bodies' authority. That is a problem that the Government can do something to address.

Let us put to one side the positive merits of a reflective judicial appointments commission. Think of the damage done by criticisms of an unreflective commission—however, unfair those criticisms may be. Let us not give anyone cause to reject and undermine the commission's work. The simplest way to do that is by seeking to ensure within the bounds of what is reasonable and practical that the commission is reflective. It does no harm and it does a positive good.

The hon. Member for Montgomeryshire (Lembit Öpik) arrived late as a result of his colleague being held up by fog in Kirkwall and assumed that the Government were responsible. When I was Under-Secretary of State at the MOD and responsible for the Met Office, I carefully claimed credit for good weather at festivals in my constituency. We welcome the hon. Gentleman. He raised the question of the possible arrangements. The Bill is not specific as to what the arrangements may be, but one could envisage that there would have to be meetings or correspondence between those with powers to appoint and to nominate. Almost inevitably, there would need to be some collective consideration of the individuals whom persons were minded to appoint or nominate to see whether that could lead to a reflective commission.

Mr. Trimble

May I go back to what the Minister has just said—that, inevitably, there would have to be some sort of collective consideration. Will he explain how the Law Society and the Bar Council could possibly take part in that collective consideration and how it could override their responsibility individually to make a single appointment?

Mr. Spellar

On the question of those bodies being overriden, on this matter we are talking throughout about aspiration—about trying to ensure a reflective commission. Those bodies might well want to secure that, and would therefore want to consider their nominations, of course on merit, but also on whether they would be able collectively to meet that aspiration. That is a reasonable argument.

Mr. Trimble

The Minister must try to answer the question. He has again used the word "collectively". We are discussing the appointment of the commission. At present, the Lord Chancellor appoints the laypersons, the judicial persons are then appointed, and then the Bar Council appoints one person and the Law Society one. How do those bodies, which are themselves collective, take part in collective decision making with the other bodies—the Lord Chancellor and the judiciary? How does the collective body known as the Law Society do that, especially bearing in mind the fact that the Minister is imposing on it a legal duty to make arrangements? The Minister has an obligation to tell us—indeed, he promised to tell us—what those arrangements might be, but he has not yet done so.

Mr. Spellar

I beg to differ on that. I have indicated—

Mr. Trimble

No, the Minister has not.

Mr. Spellar

Yes, I think I have indicated that we would envisage meetings or correspondence between those with the power to appoint or nominate, and some collective consideration, which means a degree of engagement between those bodies. They will then make their own decisions in the light of those discussions. That is not unreasonable. The right hon. Gentleman might disagree with that, but I believe that it is a perfectly credible way of undertaking that duty.

Mr. Dodds

Just to tease the issue out a little further, let us suppose that someone was aggrieved at being overlooked for appointment to the judicial appointments commission. Can the Minister tell us who they would take the case against under this arrangement? Would a solicitor take it against the Law Society and a barrister against the Bar Council, or would the case be taken against the Lord Chancellor? If the arrangement were collective, where would the remedy lie?

Mr. Spellar

I envisage that the individual organisations would make the nomination, but that they would do so in the light of their collective discussion. That is not unprecedented in this world, and maintains the individual organisations' ability to make a decision while allowing them also to consider the impact of their decision on the decisions of others.

Mr. Trimble

I ant sorry to intervene on the Minister again, but I remind him that the words in his Bill are, "to make … arrangements". An arrangement under the Bill means something more than a telephone call. The Minister hints at some sort of collective approach, but the legislation gives to the General Council of the Bar the power to make an appointment. How can a telephone conversation with the secretary of the Bar Council in any way bind, or have any influence on, what the Bar Council as a whole does? The whole approach is misconceived.

Mr. Spellar

It seems to me that the right hon. Gentleman has put his finger on the point exactly in referring to binding or having influence. Such a call could well influence the decision, and that secretary might even then have to go back to other people to consider how his organisation could best achieve the objective. The arrangement seems to be a perfectly sensible basis, which enables each individual organisation to make nominations, but in a framework in which they consider how their individual decisions might impact collectively. That is a perfectly reasonable way of doing business.

Moving on, I recognise what the right hon. Gentleman is trying to achieve in amendments Nos. 11 and 13, and I acknowledge that he is doing so in a genuine attempt to build confidence in the system.

I am not convinced that those amendments are necessary, however, because the appointment of lay members of the commission will be within the purview of the Commissioner for Public Appointments. It will be part of her responsibility to ensure that appointments are made for the right reasons, and I have no doubt that the qualities that the right hon. Gentleman lists are of exactly the sort that she will expect the commission to look for. So it is not necessary to make that explicit in the Bill, and I shall rely on the wisdom of those responsible for the administration of the process.

5.15 pm

Likewise, prescribing how committees and subcommittees of the commission should be composed is not a matter for the Bill. The Justice (Northern Ireland) Act 2002 makes it clear that the commission shall be responsible for the regulation of its own practices and procedures, and I have every confidence that the chairman—the Lord Chief Justice—will oversee its functions with great care. I am not sure that there are compelling reasons to amend the Bill as the right hon. Gentleman suggests. But regarding his specific question on my contribution in Committee, although it is for the commission to decide in each case how it organises its business, the practical arrangements are being worked through with the Lord Chief Justice. However, the Lord Chief Justice has agreed that High Court appointments will be dealt with in the way that I described. I hope that that provides additional reassurance to that offered in Committee.

Mr. Trimble

The Minister's response to my amendment No. 13 was wholly inadequate—as, indeed, was his argument against the earlier amendments—and he has not dealt with my further point about enabling the commission to delegate its entire functions to a committee on which there might be only one or two members of the commission. We are talking about enabling a committee to make an appointment, yet there is no safeguard as to its composition, other than that one commission member be on it. How can the Minister regard that as satisfactory?

Mr. Spellar

Frankly, it is a matter for the members of the commission, which will deal with more than 1,000 judicial appointments, and for its chairman, the Lord Chief Justice. It seems that I have greater confidence in the Lord Chief Justice and his fellow commissioners than do others. The provision provides the right balance to enable the commission, which will consist of highly eminent persons, to organise its business effectively.

Mr. Garnier

Is the Minister suggesting that there are 1,000 judicial office holders in Northern Ireland?

Mr. Spellar

I am advised that 1,000 appointments are catered for. I realise that some Members are concerned that securing a reflective judiciary will somehow compromise the principle of appointment on merit, but that is not the case: merit and reflectiveness are not mutually exclusive. The 2002 Act makes it clear that individual appointments must be made solely on the basis of merit, but equally, equal opportunities issues may arise that have implications for the judicial appointment process. In most spheres of work, where merit does not lead to a broadly reflective body, it is reasonable to ask why. Sometimes, there are good historical reasons, some of which the hon. Member for New Forest, West (Mr. Swayne) alluded to, but we would want to know what was preventing the emergence of a reflective body. Barriers, disincentives and other problems that are not obvious might mean that talent is being wasted. All that the provision requires is that the judicial appointments commission analyse and address any such problems, in the expectation that the measures put in place will achieve a broadly reflective judiciary.

Mr. Swayne

Will the Minister deal with the example that I gave? Would the commission be wrong to consider another candidate—a competent and good one—if the best one was from, let us say, a part of the community that was already over-reflected in the judiciary?

Mr. Spellar

It is a question not just of what I say, but of the merit principle's not being compromised. It will be no part of the commission's programme to recommend appointments "mainly" on the basis of merit, or to "have regard" to it; rather, it will recommend appointments solely on the basis of merit. I hope that that provides the reassurance that the hon. Gentleman seeks.

Mr. Dodds

The Minister referred to the number of judicial appointments in Northern Ireland as being about 1,000. On Second Reading, it was stated that there were only about 900 such appointments a year in England. That matter was also brought up in respect of the size of the commission, which we argued was too big for Northern Ireland. Will the Minister clarify the point? If there were about 1,000 judicial appointments per year in Northern Ireland, that fact would certainly be relevant to the size of the commission.

Mr. Spellar

The number of appointments incorporates a number of tribunals across the board, which brings it up to about 1,000 appointments in a year. I hope that that clarifies the position. I checked up on it for exactly the same reason as the hon. Gentleman: I had the same concern as him.

I hope that I have dealt with most of the relevant issues. The Bill makes some references to the Lord Chancellor, which will have to be changed in time, but that is a matter for the Constitutional Reform Bill. Other issues arise elsewhere in Northern Ireland legislation, but they are not central to this Bill.

Mr. Hunter

Do the Government specifically envisage that Sinn Fein would be reflected on the commission? The Minister said earlier that politics was not an issue, but that is hard to understand in such a highly politicised society as Northern Ireland. Will he therefore clarify whether Sinn Fein will be reflected in the commission or not?

Mr. Spellar

I do not know how I could be clearer than I was earlier when I explained that the relevant criteria for those who applied to be selected for judicial office were gender, age, ethnic origin and community background in the context of Northern Ireland. I thought that I had been very clear and explicit in that regard.

I have already said that we might consider tabling an amendment to section 1 of the Justice (Northern Ireland) Act 2002 to extend the duty to uphold judicial independence beyond those responsible for the administration of justice. The right hon. Member for Upper Bann raised that important matter, which deserves proper attention, in Committee. However, it has been decided that the point would be better addressed in the context of the Constitutional Reform Bill, so we look forward to dealing with it then. I therefore ask that hon. Members withdraw the amendments.

Lembit Öpik

My hon. Friend the Member for Orkney and Shetland has now got out of the fog in Kirkwall and has made it as far as Edinburgh, but I feel more lost in fog than when I first walked into the Chamber. My concern is that the Minister has sought to flannel his way through some questions, particularly those asked by the right hon. Member for Upper Bann (Mr. Trimble) and the hon. Member for Belfast, North (Mr. Dodds), without providing any clear mechanism that would allow us to understand how the mandate in the legislation could be brought to pass. The Minister cannot expect us to take his proposal seriously if he cannot explain the mechanism by which it is to be administered or, indeed, explain who would be held responsible if the commission did not turn out to be as representative as it was supposed to be.

The Lord Chancellor will appoint the lay members, but what process will ensure that his work—together with that of the General Council of the Bar, the Law Society and other judicial bodies—generates a cross-section that is truly representative of the community, as the legislation requires? The Minister cannot simply tell us that it is going to happen or that he hopes various people will make phone calls, have conversations or correspond with each other. He knows as well as I do of the frictions that exist in the north of Ireland that affect these discussions. Simply hoping that when the time comes, those frictions will be put aside—and that the Bar Council, Law Society and others will feel that it is their duty to create a process to fill the vacuum left by the legislation—is not good enough. I understand why the Minister may not want to advance the process. I suspect that it would be very difficult to mandate the organisations into doing so without either appearing draconian or seeming to impose impossible demands on them.

I am grateful to the right hon. Member for Upper Bann for saying that he will support amendment No. 4, if it is pressed to a Division. I am also grateful to the hon. Member for Basingstoke (Mr. Hunter), who is allied to the Democratic Unionist party, for his highly qualified support. I understand the qualifications that the Minister has made, which I shall deal with in a few moments, but he has singularly failed to convince any Members other than his hon. Friends that the proposal adds up.

The hon. Member for Newry and Armagh (Mr. Mallon) made some interesting points. At one stage, I felt that he was arguing in favour of the amendments and against the Bill as it stands.

He spoke about compartmentalisation, but the problem is that the Minister is trying to force compartments to work together, which may well increase rather than reduce the very frictions that I am talking about.

I do not feel it appropriate to talk about the privilege of the legal profession. I am not in the law myself and feel no need to discuss how much privilege that profession has had. I am interested in discussing the practicability of what is proposed, and I differ from the hon. Member for Newry and Armagh in that I do not feel that the Minister's proposals are practicable.

I understand that the hon. Member for Basingstoke intends to divide the House on amendment No. 23. I understand his concerns about reflectivity and representative cross-sections. I have had some personal concerns about positive discrimination: I am vulnerable on that since I have two Estonian parents, which means that the Estonian population of the United Kingdom is over-represented here by a factor of 30. [Interruption.] I can hear someone saying that that is easily remedied, but I believe that that is simple jealousy as we near the Eurovision song contest, which Estonia won recently and in which Britain got "nul points".

I take a different view from the hon. Member for Basingstoke on the question of reflectivity. I do not feel that I can support amendment No. 23 for reasons that we have discussed at some length in the past.

The Minister cannot expect us to go along with the Government's procedures when they have not been thought out. He cannot outline in any sensible way—if he can do so at this late stage, he is free to intervene–how he expects to apportion responsibility for an entirely reflective commission. If he cannot tell us how that will happen, he can hardly expect us to support an extension way beyond what was recommended in the report. To do that without cross-party consultation was somewhat irregular. To go further than recommended by experts who have studied the situation in Northern Ireland and to expect us to support that without having gone through any process with all the parties in Northern Ireland is to expect us I o swallow too much. I am not aware that any such procedure has been undertaken; the Minister may correct me if I am wrong, but I do not see him getting up so I think that I must be right. In the absence of a plausible defence from the Government of how the proposals will be implemented, I intend to divide the House on amendment No. 4.

Question put, That the amendment be made:—

The House proceeded to a Division.

Mr. Deputy Speaker (Sir Alan Haselhurst)

I ask the Serjeant at Arms to investigate the delay in the No Lobby.

The House having divided: Ayes 147, Noes 276.

Division No. 142 [5:27 pm
Ainsworth, Peter (E Surrey) Horam, John (Orpington)
Allan, Richard Hunter, Andrew
Amess, David Jack, rh Michael
Ancram, rh Michael Jackson, Robert (Wantage)
Arbuthnot, rh James Jenkin, Barnard
Atkinson, Peter (Hexham) Johnson, Boris (Henley)
Bacon, Richard Jones, Nigel (Cheltenham)
Barker, Gregory Kennedy, rh Charles (Ross Skye & Inverness)
Baron, John (Billericay)
Bellingham, Henry Key, Robert (Salisbury)
Bercow, John Kirkwood, Sir Archy
Beresford, Sir Paul Laing, Mrs Eleanor
Blunt, Crispin Lamb, Norman
Brady, Graham Laws, David (Yeovil)
Brake, Tom (Carshalton) Leigh, Edward
Brazier, Julian Letwin, rh Oliver
Breed, Colin Lewis, Dr Julian (New Forest E)
Brooke, Mrs Annette L. Liddell-Grainger, Ian
Browning, Mrs Angela Lidington, David
Burnett, John Lilley, rh Peter
Burns, Simon Luff, Peter (M-Worcs)
Burnside, David Mackay. rh Andrew
Burstow, Paul Maclean, rh David
Burt, Alistair McLoughlin, Patrick
Butterfill, Sir John Malins, Humfrey
Calton, Mrs Patsy Maples, John
Campbell, Gregory (E Lond'y) Maude, rh Francis
Campbell, rh Sir Menzies (NE Fife) Mawhinney, rh Sir Brian
May, Mrs Theresa
Chidgey, David Mitchell, Andrew (Sutton Coldfield)
Chope, Christopher
Conway, Derek Moore, Michael
Cormack, Sir Patrick Murrison, Dr. Andrew
Cotter, Brian Norman, Archie
Curry, rh David Oaten, Mark (Winchester)
Davies, Quentin (Grantham & Stamford) O'Brien, Stephen (Eddisbury)
Opik, Lembit
Dodds, Nigel Osborne, George (Tatton)
Donaldson, Jeffrey M. Page. Richard
Fabricant, Michael Prisk, Mark (Hertford)
Fallon, Michael Pugh, Dr. John
Field, Mark (Cities of London & Westminster) Randall, John
Redwood, rh John
Flight, Howard Rendel, David
Flook, Adrian Robathan, Andrew
Forth, rh Eric Robertson, Hugh (Faversham & M-Kent)
Francois, Mark
Garnier, Edward Robertson, Laurence (Tewk'b'ry)
Gibb, Nick (Bognor Regis) Robinson, Mrs Iris (Strangford)
Goodman, Paul Robinson, Peter (Belfast E)
Gray, James (N Wilts) Roe, Mrs Marion
Grayling, Chris Rosindell, Andrew
Green, Damian (Ashford) Ruffley, David
Greenway, John Sanders, Adrian
Gummer, rh John Selous, Andrew
Hague, rh William Simmonds, Mark
Hammond, Philip Simpson, Keith (M-Norfolk)
Harris, Dr. Evan (Oxford W & Abingdon) Spelman, Mrs Caroline
Spicer, Sir Michael
Hayes, John (S Holland) Spink, Bob (Castle Point)
Heald, Oliver Spring, Richard
Heath, David Stanley, rh Sir John
Heathcoat-Amory, rh David Steen, Anthony
Hendry, Charles Streeter, Gary
Hoban, Mark (Fareham) Stunell, Andrew
Hogg, rh Douglas Swayne, Desmond
Holmes, Paul Syms, Robert
Tapsell, Sir Peter Widdecombe, rh Miss Ann
Taylor, John (Solihull) Wiggin, Bill
Thomas, Simon (Ceredigion) Willetts, David
Trimble, rh David Williams, Hywel (Caernarfon)
Tyrie, Andrew Willis, Phil
Viggers, Peter Wilshire, David
Walter, Robert Young, rh Sir George
Waterson, Nigel Younger-Ross, Richard
Watkinson, Angela
Webb. Steve (Northavon) Tellers for the Ayes:
Weir, Michael Bob Russell and
Whittingdale, John Mr. Don Foster
Adams, Irene (Paisley N) Cryer, Ann (Keighley)
Ainsworth, Bob (Cov'try NE) Cryer, John (Hornchurch)
Alexander, Douglas Cummings, John
Allen, Graham Cunningham, Jim (Coventry S)
Anderson, rh Donald (Swansea E) Cunningham, Tony (Workington)
Armstrong, rh Ms Hilary Davey, Valerie (Bristol W)
Atkins, Charlotte David, Wayne
Austin, John Davidson, Ian
Baird, Vera Davies, rh Denzil (Llanelli)
Barnes, Harry Davies, Geraint (Croydon C)
Barron, rh Kevin Dawson, Hilton
Bayley, Hugh Dean, Mrs Janet
Beard, Nigel Denham, rh John
Beckett, rh Margaret Dhanda, Parmjit
Begg, Miss Anne Dobbin, Jim (Heywood)
Bennett, Andrew Dobson, rh Frank
Best, Harold Doran, Frank
Betts, Clive Dowd, Jim (Lewisham W)
Blackman, Liz Dunwoody, Mrs Gwyneth
Blears, Ms Hazel Eagle, Angela (Wallasey)
Blizzard, Bob Eagle, Maria (L'pool Garston)
Borrow, David Edwards, Huw
Bradley, rh Keith (Withington) Ellman, Mrs Louise
Bradley, Peter (The Wrekin) Ennis, Jeff (Barnsley E)
Brennan, Kevin Farrelly, Paul
Browne, Desmond Field, rh Frank (Birkenhead)
Bryant, Chris Fisher, Mark
Buck, Ms Karen Fitzpatrick, Jim
Burden, Richard Flint, Caroline
Burgon, Colin Foster, rh Derek
Byers, rh Stephen Foster, Michael (Worcester)
Campbell, Alan (Tynemouth) Foster, Michael Jabez (Hastings & Rye)
Campbell, Mrs Anne (C'bridge)
Campbell, Ronnie (Blyth V) Francis, Dr. Hywel
Casale, Roger Gapes, Mike (Ilford S)
Caton, Martin Gerrard, Neil
Cawsey, Ian (Brigg) Gibson, Dr. Ian
Challen, Colin Godsiff, Roger
Chapman, Ben (Wirral S) Goggins, Paul
Chaytor, David Griffiths, Win (Bridgend)
Clapham, Michael Grogan, John
Clark, Mrs Helen (Peterborough) Hall, Mike (Weaver Vale)
Clark, Dr. Lynda (Edinburgh Pentlands) Hall, Patrick (Bedford)
Hanson, David
Clark, Paul (Gillingham) Harman, rh Ms Harriet
Clarke, rh Tom (Coatbridge & Chryston) Havard, Dai (Merthyr Tydfil & Rhymney)
Clelland, David Healey, John
Clwyd, Ann (Cynon V) Henderson, Doug (Newcastle N)
Coaker, Vernon Henderson, Ivan (Harwich)
Coffey, Ms Ann Heppell, John
Cohen, Harry Hesford, Stephen
Coleman, Iain Hewitt, rh Ms Patricia
Colman, Tony Heyes, David
Cook, Frank (Stockton N) Hinchliffe, David
Cook, rh Robin (Livingston) Hope, Phil (Corby)
Cooper, Yvette Hopkins, Kelvin
Corbyn, Jeremy Howarth, rh Alan (Newport E)
Corston, Jean Howells, Dr. Kim
Cousins, Jim Hoyle, Lindsay
Crausby, David Hughes, Kevin (Doncaster N)
Cruddas, Jon Humble, Mrs Joan
Hurst, Alan (Braintree) Naysmith, Dr. Doug
Hutton, rh John Norris, Dan (Wansdyke)
Iddon, Dr. Brian O'Brien, Bill (Normanton)
Illsley, Eric O'Brien, Mike (N Warks)
Irranca-Davies, Huw Olner, Bill
Jackson, Glenda (Hampstead & Highgate) Organ, Diana
Osborne, Sandra (Ayr)
Jackson, Helen (Hillsborough) Palmer, Dr. Nick
Jamieson, David Picking, Anne
Johnson, Alan (Hull W) Pickthall, Colin
Johnson, Miss Melanie (Welwyn Hatfield) Pike, Peter (Burnley)
Plaskitt, James
Jones, Helen (Warrington N) Pond, Chris (Gravesham)
Jones, Kevan (N Durham) Pope, Greg (Hyndburn)
Jones, Lynne (Selly Oak) Primarolo, rh Dawn
Jones, Martyn (Clwyd S) Prosser, Gwyn
Kaufman, rh Gerald Purchase, Ken
Keeble, Ms Sally Quin, rh Joyce
Keen, Alan (Feltham) Rammell, Bill
Keen, Ann (Brentford) Rapson, Syd (Portsmouth N)
Kennedy, Jane (Wavertree) Reed, Andy (Loughborough)
Khabra, Piara S. Reid, rh Dr. John (Hamilton N & Bellshill)
Kidney, David
Kilfoyle, Peter Robertson, John (Glasgow Anniesland)
Knight, Jim (S Dorset)
Kumar, Dr. Ashok Roche, Mrs Barbara
Ladyman, Dr. Stephen Rooney, Terry
Lammy, David Roy, Frank (Motherwell)
Lawrence, Mrs Jackie Ruddock, Joan
Laxton, Bob (Derby N) Russell, Ms Christine (City of Chester)
Lazarowicz, Mark
Lepper, David Ryan, Joan (Enfield N)
Leslie, Christopher Salter, Martin
Levitt, Tom (High Peak) Sarwar, Mohammad
Lewis, Ivan (Bury S) Savidge, Malcolm
Liddell, rh Mrs Helen Sedgemore, Brian
Linton, Martin Shaw, Jonathan
Love, Andrew Sheerman, Barry
Lucas, Ian (Wrexham) Sheridan, Jim
Lyons, John (Strathkelvin) Simon, Sion (B'ham Erdington)
McAvoy, Thomas Simpson, Alan (Nottingham S)
McCabe, Stephen Skinner, Dennis
McDonagh, Siobhain Smith, Angela (Basildon)
MacDonald, Calum Smith, Geraldine (Morecambe & Lunesdale)
McFall, John
McGuire, Mrs Anne Soley, Clive
Mclsaac, Shona Spellar, rh John
McKechin, Ann Starkey, Dr. Phyllis
McKenna, Rosemary Steinberg, Gerry
Mackinlay, Andrew Stevenson, George
McWalter, Tony Stewart, David (Inverness E & Lochaber)
McWilliam, John
Mahon, Mrs Alice Stewart, Ian (Eccles)
Mallon, Seamus Stinchcombe, Paul
Mendelson, rh Peter Stoate, Dr. Howard
Mann, John (Bassetlaw) Stringer, Graham
Marris, Rob (Wolverh'ton SW) Stuart, Ms Gisela
Marsden, Gordon (Blackpool S) Sutcliffe, Gerry
Marshall, Jim (Leicester S) Taylor, Dari (Stockton S)
Marshall-Andrews, Robert Taylor, David (NW Leis)
Martlew, Eric Thomas, Gareth (Clwyd W)
Merron, Gillian Thomas, Gareth (Harrow W)
Michael, rh Alun Timms, Stephen
Miliband, David Tipping, Paddy
Miller, Andrew Todd, Mark (S Derbyshire)
Mitchell, Austin (Gt Grimsby) Trickett, Jon
Moffatt, Laura Truswell, Paul
Mole, Chris Turner, Dennis (Wolverh'ton SE)
Morley, Elliot Tumer, Dr. Desmond (Brighton Kemptown)
Morris, rh Estelle
Mountford, Kali Twigg, Stephen (Enfield)
Mudie, George Vaz, Keith (Leicester E)
Mullin, Chris Ward, Claire
Munn, Ms Meg Wareing, Robert N.
Murphy, Denis (Wansbeck) Watts, David
Murphy, Jim (Eastwood) White, Brian
Whitehead, Dr. Alan Wright, Anthony D. (Gt Yarmouth)
Wicks, Malcolm
Williams, rh Alan (Swansea W) Wright, David (Telford)
Winnick, David Wright, Tony (Cannock)
Winterton, Ms Rosie (Doncaster C) Wyatt, Derek
Woodward, Shaun Tellers for the Noes:
Woolas, Phil Mr. Fraser Kemp and
Worthington, Tony Derek Twigg

Question accordingly negatived.

Amendment proposed: No. 23, in clause 3, page 2, leave out lines 26 to 40.—[Mr. Hunter.]

Question put, That the amendment be made:— The House divided: Ayes 113, Noes 307.

Division No. 143] [5.45 pm
Ainsworth, Peter (E Surrey) Johnson, Boris (Henley)
Amess, David Key, Robert (Salisbury)
Ancram, rh Michael Laing, Mrs Eleanor
Arbuthnot, rh James Leigh, Edward
Atkinson, Peter (Hexham) Letwin, rh Oliver
Bacon, Richard Lewis, Dr. Julian (New Forest E)
Barker, Gregory Liddell-Grainger, Ian
Baron, John (Billericay) Lidington, David
Bellingham, Henry Luff, Peter (M-Worcs)
Bercow, John Mackay, rh Andrew
Beresford, Sir Paul Maclean, rh David
Blunt, Crispin McLoughlin, Patrick
Brady, Graham Malins, Humfrey
Brazier, Julian Maples, John
Browning, Mrs Angela Maude, rh Francis
Burns, Simon Mawhinney, rh Sir Brian
Burnside, David May, Mrs Theresa
Burt, Alistair Mitchell, Andrew (Sutton Coldfield)
Butterfill, Sir John
Campbell, Gregory (E Lond'y) Murrison, Dr. Andrew
Chope, Christopher Norman, Archie
Collins, Tim O'Brien, Stephen (Eddisbury)
Conway, Derek Osborne, George (Tatton)
Curry, rh David Page, Richard
Davies, Quentin (Grantham & Stamford) Prisk, Mark (Hertford)
Randall, John
Donaldson, Jeffrey M. Redwood, rh John
Fabricant, Michael Robathan, Andrew
Fallon, Michael Robertson, Hugh (Faversham & M-Kent)
Field, Mark (Cities of London & Westminster)
Robertson, Laurence (Tewk'b'ry)
Flight, Howard Robinson, Peter (Belfast E)
Flook, Adrian Roe, Mrs Marion
Forth, rh Eric Rosindell, Andrew
Francois, Mark Ruffley, David
Garnier, Edward Selous, Andrew
Gibb, Nick (Bognor Regls) Simmonds, Mark
Goodman, Paul Simpson, Keith (M-Norfolk)
Gray, James (N Wilts) Spicer, Sir Michael
Grayling, Chris Spink, Bob (Castle Point)
Green, Damian (Ashford) Spring, Richard
Greenway, John Stanley, rh Sir John
Gummer, rh John Steen, Anthony
Hague, rh William Streeter, Gary
Hammond, Philip Swayne, Desmond
Hayes, John (S Holland) Syms, Robert
Heald, Oliver Tapsell, Sir Peter
Heathcoat-Amory, rh David Taylor, John (Solihull)
Hendry, Charles Trimble, rh David
Hoban, Mark (Fareham) Turner, Andrew (Isle of Wight)
Hogg, rh Douglas Tyrie, Andrew
Horam, John (Orpington) Viggers, Peter
Howard, rh Michael Walter, Robert
Hunter, Andrew Waterson, Nigel
Jack, rh Michael Watkinson, Angela
Jenkin, Bernard Whittingdale, John
Widdecombe, rh Miss Ann Tellers for the Ayes:
Wiggin, Bill Mr. Nigel Dodds and
Willetts, David Mrs. Iris Robinson
Wilshire, David
Young, rh Sir George
Adams, Irene (Paisley N) Corston, Jean
Ainsworth, Bob (Cov'try NE) Cotter, Brian
Alexander, Douglas Cousins, Jim
Allan, Richard Crausby, David
Allen, Graham Cruddas, Jon
Anderson, rh Donald (Swansea E) Cryer, Ann (Keighley)
Armstrong, rh Ms Hilary Cryer, John (Hornchurch)
Atkins, Charlotte Cummings, John
Austin, John Cunningham, Jim (Coventry S)
Baird, Vera Cunningham, Tony (Workington)
Barnes, Harry Davey, Valerie (Bristol W)
Barron, rh Kevin David, Wayne
Bayley, Hugh Davidson Ian
Beard, Nigel Davies, rh Denzil (Llanelli)
Beckett, rh Margaret Davies, Geraint (Croydon C)
Begg, Miss Anne Dawson, Hilton
Beith, rh A. J. Dean, Mrs Janet
Bennett, Andrew Denham, rh John
Best, Harold Dhanda, Parmjit
Betts, Clive Dobbin, Jim (Heywood)
Blackman, Liz Dobson, rh Frank
Blears, Ms Hazel Doran, Frank
Blizzard, Bob Doughty, Sue
Borrow, David Dowd, Jim (Lewisham W)
Bradley, rh Keith (Withington) Dunwoody, Mrs Gwyneth
Bradley, Peter (The Wrekin) Eagle, Angela (Wallasey)
Brake, Tom (Carshalton) Eagle, Maria (L'pool Garston)
Breed, Colin Edwards, Huw
Brennan, Kevin Ellman, Mrs Louise
Brooke, Mrs Annette L. Ennis, Jeff (Barnsley E)
Browne, Desmond Farrelly, Paul
Bryant, Chris Field, rh Frank (Birkenhead)
Buck, Ms Karen Fisher, Mark
Burden, Richard Fitzpatrick, Jim
Burgon, Colin Flint, Caroline
Burnett, John Foster, rh Derek
Burstow, Paul Foster, Don (Bath)
Byers, rh Stephen Foster, Michael (Worcester)
Calton, Mrs Patsy Foster, Michael Jabez (Hastings & Rye)
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge) Francis, Dr. Hywel
Campbell, rh Sir Menzies (NE Fife) Gapes, Mike (Ilford S)
Gerrard. Neil
Campbell, Ronnie (Blyth V) Gibson, Dr. Ian
Casale, Roger Godsiff, Roger
Caton, Martin Goggins, Paul
Cawsey, Ian (Brigg) Griffiths, Win (Bridgend)
Challen, Colin Grogan, John
Chapman, Ben (Wirral S) Hall, Mike (Weaver Vale)
Chaytor, David Hall, Patrick (Bedford)
Chidgey, David Hanson, David
Clapham, Michael Harman, rh Ms Harriet
Clark, Mrs Helen (Peterborough) Harvey, Nick
Clark, Dr. Lynda (Edinburgh Pentlands) Havard, Dai (Merthyr Tydfil & Rhymney)
Clark, Paul (Gillingham) Healey, John
Clarke, rh Tom (Coatbridge & Chryston) Heath, David
Henderson, Doug (Newcastle N)
Clelland, David Henderson, Ivan (Harwich)
Clwyd, Ann (Cynon V) Heppell, John
Coaker, Vernon Hesford, Stephen
Coffey, Ms Ann Heyes, David
Cohen, Harry Hinchliffe, David
Coleman, Iain Hodge, Margaret
Colman, Tony Holmes, Paul
Cook, Frank (Stockton N) Hope, Phil (Corby)
Cook, rh Robin (Livingston) Hopkins, Kelvin
Cooper, Yvette Howarth, rh Alan (Newport E)
Corbyn, Jeremy Howells, Dr. Kim
Hoyle, Lindsay Mole, Chris
Hughes, Kevin (Doncaster N) Moore, Michael
Humble, Mrs Joan Morley, Elliot
Hurst, Alan (Braintree) Mountford, Kali
Hutton, rh John Mudie, George
Iddon, Dr. Brian Mullin, Chris
Illsley, Eric Munn, Ms Meg
Irrance-Davies, Huw Murphy, Denis (Wansbeck)
Jackson, Glenda (Hampstead & Highgate) Murphy, Jim (Eastwood)
Naysmith, Dr. Doug
Jackson, Helen (Hillsborough) Norris, Dan (Wansdyke)
Johnson, Alan (Hull W) Oaten, Mark (Winchester)
Johnson, Miss Melanie (Welwyn Hatfield) O'Brien, Bill (Normanton)
Olner, Bill
Jones, Helen (Warrington N) Öpik, Lembit
Jones, Kevan (N Durham) Organ, Diana
Jones, Lynne (Selly Oak) Osborne, Sandra (Ayr)
Jones, Martyn (Clwyd S) Palmer, Dr. Nick
Jones, Nigel (Cheltenham) Picking, Anne
Kaufman, rh Gerald Pickthall, Colin
Keeble, Ms Sally Pike, Peter (Burnley)
Keen, Alan (Feltham) Plaskitt, James
Keen, Ann (Brentford) Pond, Chris (Gravesham)
Keetch, Paul Pope, Greg (Hyndburn)
Kennedy, rh Charles (Ross Skye & Inverness) Primarolo, rh Dawn
Prosser, Gwyn
Kennedy, Jane (Wavertree) Pugh, Dr. John
Khabra, Piara S. Purchase, Ken
Kidney, David Quin, rh Joyce
Kilfoyle, Peter Rapson, Syd (Portsmouth N)
Kirkwood, Sir Archy Reed, Andy (Loughborough)
Knight Jim (S Dorset) Reid, rh Dr. John (Hamilton N & Bellshill)
Kumar, Dr. Ashok
Ladyman, Dr. Stephen Rendel, David
Lamb, Norman Robertson, John (Glasgow Anniesland)
Lammy, David
Lawrence, Mrs Jackie Roche, Mrs Barbara
Laws, David (Yeovil) Rooney, Terry
Laxton, Bob (Derby N) Roy, Frank (Motherwell)
Lazarowicz, Mark Ruddock, Joan
Lepper, David Russell, Bob (Colchester)
Leslie, Christopher Russell, Ms Christine (City of Chester)
Levitt, Tom (High Peak)
Lewis, Ivan (Bury S) Ryan, Joan (Enfield N)
Liddell, rh Mrs Helen Salter, Martin
Linton, Martin Sanders, Adrian
Love, Andrew Sarwar, Mohammad
Lucas, Ian (Wrexham) Savidge, Malcolm
Lyons, John (Strathkelvin) Sedgemore, Brian
McAvoy, Thomas Shaw, Jonathan
McCabe, Stephen Sheerman, Barry
McDonagh, Siobhain Sheridan, Jim
MacDonald, Calum Simon, Siôn (B'ham Erdington)
McFall, John Simpson, Alan (Nottingham S)
McGuire, Mrs Anne Skinner, Dennis
Mclsaac, Shona Smith, Angela (Basildon)
McKechin, Ann Smith, Geraldine (Morecambe & Lunesdale)
McKenna, Rosemary
Mackinlay, Andrew Soley, Clive
McWalter, Tony Speller, rh John
McWilliam, John Starkey, Dr. Phyllis
Mahon, Mrs Alice Steinberg, Gerry
Mallon, Seamus Stevenson, George
Mendelson, rh Peter Stewart, David (Inverness E & Lochaber)
Mann, John (Bassetlaw)
Marris, Rob (Wolverh'ton SW) Stewart, Ian (Eccles)
Marsden, Gordon (Blackpool S) Stinchcombe, Paul
Marshall, Jim (Leicester S) Stoate, Dr. Howard
Marshall-Andrews, Robert Stringer, Graham
Martlew, Eric Stuart, Ms Gisela
Merron, Gillian Stunell, Andrew
Michael, rh Alun Sutcliffe, Gerry
Miliband, David Taylor, David (NW Leics)
Miller, Andrew Thomas, Gareth (Clwyd W)
Mitchell, Austin (Gt Grimsby) Thomas, Gareth (Harrow W)
Moffatt, Laura Thomas, Simon (Ceredigion)
Timms, Stephen Williams, rh Alan (Swansea W)
Tipping, Paddy Williams, Hywel (Caernarfon)
Todd, Mark (S Derbyshire) Willis, Phil
Trickett, Jon Winnick, David
Truswell, Paul Winterton, Ms Rosie (Doncaster C)
Turner, Dennis (Wolverh'ton SE)
Turner, Dr. Desmond (Brighton Kemptown) Woodward, Shaun
Woolas, Phil
Twigg, Stephen (Enfield) Worthington, Tony
Vaz, Keith (Leicester E) Wright, Anthony D. (Gt Yarmouth)
Ward, Claire
Wareing, Robert N. Wright, David (Telford)
Watts, David Wright, Tony (Cannock)
Wyatt, Derek
Webb, Steve (Northavon) Younger-Ross, Richard
Weir, Michael
White, Brian Tellers for the Noes:
Whitehead, Dr. Alan Mr. Fraser Kemp and
Wicks, Malcolm Derek Twigg

Question accordingly negatived

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