AIMS OF THE CRIMINAL JUSTICE SYSTEM

HL Deb 11 June 2002 vol 636 cc1-60GC

1. (1) The principal aim of the criminal justice system in Northern Ireland is to protect the public by reducing crime and the fear of crime.
2. (2) All persons and bodies exercising functions in relation to the criminal justice system in Northern Ireland must have regard to that principal aim in exercising their functions.
CWH 2
3. (3) With a view to promoting confidence in the administration of the criminal justice system, all such persons and bodies must also have regard to the need to operate a system which is independent, fair, accessible, open, inclusive, effective and protective of human rights.
4. (4) Each agency working in the criminal justice system shall publish statements of ethics covering all those employed or holding office in that agency."

The noble Lord said: I beg to move this amendment standing in my name and that of my noble friend Lord Shutt of Greetland. The reason for so doing is that there is some disappointment that the Bill does not put human rights at the centre of the reforms in the way in which the criminal justice review recommended.

[The Sitting was suspended for a Division in the House from 3.32 to 3.42 p.m.]

Lord Smith of Clifton

It is a disappointment that the Bill does not put human rights at the centre of the reforms in the way in which the criminal justice review recommended. The first 16 recommendations of that review, all on human rights, have not been reflected in the Bill at all. A glance at the index on page 151 of the implementation plan, which accompanied the publication of the Bill, makes that clear. The plan states, in relation to almost all of those recommendations, that their implementation is ongoing but, in nearly every instance, it provides no timetable, however imprecise. At several other points in the Bill, the opportunity has been missed to include references to relevant international standards on human rights.

Perhaps the most glaring omission in the Bill is the failure to include any statement of the aims of the criminal justice system. While the review did not actually recommend that those aims should be contained in the legislation, we see no good reason why they should not be. After all, the Police (Northern Ireland) Act 2000 already contains a section stating the functions of the police service and Clause 52 of the Bill sets out the aims of the youth justice system. We propose that the Bill as a whole be amended to set out clearly the aims of the adult criminal justice system. One of those aims should be at the forefront—the promotion and protection of human rights. I beg to move.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)

I hope Members of the Committee will be pleased to know that we are publishing a revised implementation plan with more detail, especially on timetables after Royal Assent. Members of the Committee will know that the review did not recommend, as the noble Lord indicated, that the aims of the criminal justice system should be put in statute. We do not believe that the review group felt that that was necessary. While this Bill is extensive, it does not attempt to cover all areas of the criminal justice system; moreover, the Government are not convinced that there is a need to place those general aims on the face of the Bill. We are not convinced either that the amendment adequately covers all we would want to say, which does not mean that we do not have sympathy with the sentiments expressed by the noble Lord. The review recommended that we publish a set of purpose and aims for the criminal justice system; that was published at the end of last year.

That publication states that our purpose is to support the administration of justice, to promote confidence in the criminal justice system and to contribute to the reduction of crime and the fear of crime. It also sets out the following aims: first, to provide an independent, fair and effective criminal justice system for the community; secondly, to work together to help reduce crime and the fear of crime; thirdly, to make the criminal justice system as open, inclusive and accessible as possible and to promote confidence in the administration of justice; and, fourthly, to improve service delivery by enhancing levels of effectiveness, efficiency and co-operation within the criminal justice system.

As I said earlier, that publication demonstrates that we have sympathy with the sentiments expressed by Members of the Committee but the review also recommended that the Bill should include a clear statement of the aims and principles of the youth justice system. That is referred to in Clause 52. I hope that Members of the Committee will be comforted by what I have said and agree to withdraw the amendment.

Lord Glentoran

I start by welcoming the noble Baroness to Northern Ireland affairs. I believe that this is the first occasion in which she has taken part directly in that regard. I have previously been known to say that if there is one person whose side I always want to be on, with regard to advocates, it is that of the noble Baroness. Unfortunately, on this occasion, that is not the case.

I have only one substantive point to make on the amendment moved by the noble Lord, Lord Smith. It concerns subsection (4) of the amendment, which goes a little over the top. To publish aims is fine but to go to the extent that each agency working in the criminal justice system has to publish statements of ethics and so on is neither necessary nor appropriate in the Bill. Furthermore, so far as human rights are concerned, that is dealt with on the front page of the Bill anyway.

Lord Molyneaux of Killead

I do not quarrel with the principal aim of the amendment but, as other provisions in the Bill tend to weaken the capacity of the judicial system, it is probably somewhat unrealistic to expect the judiciary to "protect the public". Nor is the new police service, in its much weakened position, capable of protecting the public, given that public protection is deteriorating with every day that passes. However, the intention is that the Bill will not be implemented for a year—until after the Assembly elections next year. It may therefore be that the new proposed Army-based counter-terrorist Anglo-Irish task force—whatever it is going to be—may be effective by that time in giving real protection to the public, provided that that new task force is not weakened.

Lord Glentoran

The noble Lord said that the Bill is not due for implementation until after the next election. As I understand the situation, from Clause 86, it will not be implemented until such time as the Government decide that the situation is such that it may be implemented. I seek clarification from the noble Baroness.

Baroness Scotland of Asthal

The noble Lord, Lord Glentoran, is right when he expresses that view.

Lord Smith of Clifton

I shall read carefully what the Minister has said in Hansard and may well come back to this on Report. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 [Guarantee of continued judicial independence]:

Lord Desai

moved Amendment No. 2: Page 1, line 6, leave out "continued The noble Lord said: In speaking to Amendment No. 2 I shall speak also to Amendment No. 4 which is grouped with it. These amendments relate to the issue of independence. Amendment No. 4 derives from the definition of independence of the judiciary from the United Nations principles of independence of the judiciary. It is a straightforward quotation from that document and therefore is self-explanatory.

With Amendment No. 2 I seek to remove the word "continued" because it is not necessary when talking about independence. I apologise to the Committee because I did not speak on Second Reading, but during that debate many noble Lords paid tribute to all those who have worked in the justice system in Northern Ireland, and I join them in paying that tribute. But as the Criminal Justice Review Group made clear, there are some differences of opinion about the question of independence. It is not necessary to bring forward those problems here; the past is past and the word "continued" is not strictly necessary. I beg to move.

Lord Glentoran

I have no argument with Amendment No. 2, but Amendment No. 4 is perhaps unfortunate. The legal profession—the judiciary—is one element in Northern Ireland that has never been criticized—never is probably too strong a word, but virtually never—for its findings and performance over the past 30 years. To suggest that we need to include in the Bill a direction to the judiciary to decide matters before them impartially is, perhaps I may say, tactless—without wishing in any way to be rude to the noble Lord.

Lord Mayhew of Twysden

I part company in the most gentle way from my noble friend Lord Glentoran because I do believe Amendment No. 2 presents a problem. When speaking to the amendment, the noble Lord, Lord Desai, justified it on the ground that the word "continued" is unnecessary. I had thought, therefore, that the noble Lord would argue the point on the basis of drafting eloquence.

However, the substantial reason for the amendment became clear a moment later when the noble Lord said that there are some differences of opinion, or words to that effect, as to whether judges are independent in Northern Ireland. I have no doubt about that whatsoever. I had rather gathered from the noble Lord that he too had no doubts about that. To the extent that there may be some doubt, then it is all the more important that Parliament should dismiss it by expressing its confidence in the continued independence of the judiciary: that is, in expressing its confidence that judges in Northern Ireland are independent at the moment.

With regard to Amendment No. 4, I very much endorse what my noble friend has just said. This is the very stuff of the judicial function and it would be otiose and verging upon the odious should we see fit to set them out for a judiciary in whom we have such confidence. I hope very much that this amendment in turn will be withdrawn.

Baroness Scotland of Asthal

I endorse many of the comments made by the noble Lord, and would say to my noble friend that it is right that this is a very sensitive issue. There is no doubt that, to date, the independence of the judiciary has stood Northern Ireland in very good stead. We certainly would do nothing and say nothing that could undermine or in any way detract from that. The purpose of the clause making specific reference to the "continued" independence of the judiciary is precisely because the judiciary is currently independent and must be seen to continue so to be. We respectfully suggest that in that context the word has some pertinence and added significance.

The clause already includes a duty on those responsible for the administration of justice to uphold the independence of the judiciary. The Bill also includes an oath in Clause 19 in which the judges promise to do right to all manner of people without fear or favour". The amendment seems to cover all that ground again, but in different and perhaps rather less precise language. I recognise that the wording comes from the UN principles on the independence of the judiciary, but these principles are just that—they are not supposed to be binding legal wording. Of course, judges must act without bias or the appearance of bias. That is already the law and the amendment is not needed to ensure it, although I understand the reason why my noble friend Lord Desai tabled it. I invite him to withdraw the amendment.

Lord Desai

I thank all the noble Lords who have spoken on the amendment. My purpose was to highlight one or two issues. It hardly needs to be said that these are all sensitive issues when we speak on Northern Ireland and I recognise the sensitivities. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran

moved Amendment No. 3: Page 1, line 6, at end insert "and the legal profession The noble Lord said: I tabled the amendment principally because of significant lobbying from the Law Society of Northern Ireland. The amendment simply affirms the importance of a genuinely independent legal profession as a whole. The existence of an independent legal profession is vital in the protection of human rights, not only in so far as this involves the framing of just laws and procedures, but also in the robust and independent application and defence of those laws and procedures.

This point has been made repeatedly by the Law Society of Northern Ireland and I have been struck by the strength of its case. It seems clear that an independent judiciary should be able to rely on an independent legal profession.

I am equally struck, reading Commons Hansard, by the flimsiness of the Government's case opposing this. I hope that I am correct in saying that the Government's principal objection to the amendment is that the implications for the regulation of a profession that is currently self-regulating are too far-reaching. On that basis they say that they will not give it serious consideration.

I do not see in the amendment the pitfalls perceived by the Government. These pitfalls rest on the assumption that there is some kind of absolute independence—that the legal profession is somehow independent from the law. Members of the legal profession in the UK are subject to the discipline of criminal law in the same way as any other profession.

The Bill includes a statutory guarantee of judicial and prosecutorial independence. The Government have rightly identified the independence of the judiciary and the prosecution process as a key issue in maintaining public confidence in the administration of justice, but I should be grateful if the Minister would explain why the legal profession has been excluded from this guarantee. Is there not a parallel need for the independence of the legal profession to be affirmed? I beg to move.

4 p.m.

Baroness Scotland of Asthal

I am more than happy to see if I can assist the noble Lord in relation to this matter. The Bill currently requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. This was recommended by the review because of the paramount importance of an independent judiciary. The idea of extending this provision beyond what the review recommended to include the legal professions has been debated in the other place, as noble Lords will know. The debate did not clarify what the effect of the amendment would be and the Government are reluctant to add provisions to the statute hook when neither we nor anyone else are clear on what they will mean in practice. Perhaps If may explore a few of our potential concerns on the amendment.

The first is the concept of independence, which the noble Lord has already touched on. The independence of the legal profession is different from the independence of the judiciary. We think it would be confusing to combine them. Secondly, a statutory provision could have unforeseen side-effects, possibly interfering with the profession's self-regulation by introducing a degree of government regulation. I am not clear how those responsible for the administration of justice would be able to protect independence in this case. If I might ask rhetorically, what does independence mean in the context, for example, of solicitors working on litigation between two private sector clients?

I can understand, to some extent, the motivation for the amendment. The legal professions in Northern Ireland operate sometimes in very difficult circumstances. I can also see why noble Lords are suggesting that we offer some form of protection. However, we are wary about putting through Parliament legislation that commits us to an idea that has not been tested. One of the duties of government is critically to assess changes that are proposed by interested groups. In our view, the amendment does not pass that test.

I would be grateful if noble Lords would bear in mind that this clause should be seen in the context of Part 1 of the Bill, which makes radical changes to the means of appointment and removal of judges. In that context, Clause 1 has special resonance and we make no comparable changes to the structure of the legal professions. We believe that, at the moment, the independence of both professions is properly guarded by their respective bodies. There is no basis at the moment for an indication that we should make a significant change in that regard and bring greater distinction between the professions in the other part of Great Britain.

Lord Molyneaux of Killead

The noble Baroness touched on a sensitive nerve when she said "at the moment", as the Committee is probably in some difficulty, given that later clauses provide for interference and contamination of the judiciary. The amendment seems a sensible precaution, because, hopefully, we may be able to reduce the hideous danger of what I call the contamination of the judiciary and subjecting the judiciary to unwarranted political interference.

Baroness Scotland of Asthal

I do not know whether I can help a little further. Noble Lords will know that the legal profession at the moment is drawn from a wide pool both in England and Wales and in Northern Ireland—a pool from which there is no restriction. The independence of the profession, therefore, is very much supported by the rules and regulations that are operated by the independent monitoring bodies for both parts of the profession—solicitors and barristers. None of that is proposed to change, so their intrinsic independence will be maintained. At the moment, there seems no reason to change the status quo. I say "at the moment". There has not been any reason to change the position for the past 200 years. I cannot say there will be no reason for the next 200 years, but let us wait and see.

Lord Glentoran

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Clause 1 agreed to.

Clause 2 [Introductory]:

Lord Rogan

moved Amendment No. 5: Page 1, line 10, after "Appeal" insert "or judge of the High Court The noble Lord said: This is the first time I have spoken in a Grand Committee—indeed, it is the first time I have been present in Grand Committee. If I should stray from the straight and narrow or fail to obey the rules and conventions, no doubt the Deputy Chairman will correct me so that I may do better in future.

The Bill seems to divide judicial appointments into two categories—the list of judicial offices contained in Schedule 1 and what other parts of the Bill refer to as "most senior judicial offices". The amendment would remove the office of judge of the High Court from the list in Schedule 1 and place it with the other most senior judicial offices. The Bill seems rather confused on that issue. Bearing in mind that there are only seven judges of the High Court in Northern Ireland, one must ask whether such judges should be bracketed with Lords Justices of Appeal, or with magistrates and members of the Land Tribunal.

The implication for judges of the High Court of that relegation in status is that they will fall under the proposed Judicial Appointments Commission. Given recent events in relation to the appointment of the Chief Constable in Northern Ireland, those political appointment panels inevitably prove controversial. Members of the Committee should note that although the Judicial Appointments Commission will not involve Members of the Northern Ireland Assembly—Members of the Assembly are appointed to the Policing Board—nevertheless representatives to the Judicial Appointments Commission will be made by the First Minister and Deputy First Minister.

Under the old Stormont regime, the appointment of High Court judges was reserved to Westminster. The line was drawn below the High Court level. The notion of the appointments procedure is accepted but I have described the way in which lines are drawn. I beg to move.

Baroness Scotland of Asthal

In relation to the devolution process, it is intended that a greater number of matters will be devolved than was anticipated in 1972 because we are dealing with a fresh situation. The amendments were considered in another place and the intention is to give High Court judges the same appointment procedures and tenure as the Lord Chief Justice and Lords Justices of Appeal. We do not accept that that is a necessary amendment. The review makes it clear that the Judicial Appointments Commission should appoint all judges, up to and including High Court judges. This is what the Bill provides for and that is what the noble Lord's amendment would remove.

The Government agree with the review that it is appropriate to differentiate at this level. We are very much in agreement with the line that was taken in relation to Scotland, where appointments and removal to the equivalent level are devolved. We do not see any basis at the moment to differentiate between the judgment made by the review and the position taken in relation to the Scottish model.

Lord Mayhew of Twysden

I support, perhaps tentatively, the arguments advanced by the noble Lord, Lord Rogan, who moved the amendment. At present, High Court judges are appointed by the Lord Chancellor. Becoming a High Court judge is always regarded as a significant step up in the hierarchy of seniority from being a county court judge. It is very important that that should be maintained and recognised—a High Court judge, in his criminal jurisdiction, has, after all, jurisdiction to try the most serious criminal offences and to impose the most serious criminal sentences. In his civil jurisdiction, he has power under the judicial review procedure to make orders of the most far-reaching consequence. In his civil jurisdiction, there is no limit to the value of the cases that may be tried. The fact that there are only seven High Court judges in Northern Ireland seems to highlight the crucial importance of appointing judges by reference, explicitly and patently, to their merit. It is more important that they should be of such merit than that many of those who appear in the list in Schedule 1 should be of that merit, by reason of the fact that their jurisdiction is so much more important. The Government need to ask themselves—and share with us the answer—why a separate procedure is envisaged in the Bill for Court of Appeal judges. I suggest that the answer is because they have very much greater authority in the sense that with them lies—subject to the Judicial Committee of the House of Lords—ultimate appeal within Northern Ireland.

That is a question of balance and of hunch. I see the importance of following, where possible, the recommendations of the excellent review. That is a weighty matter. In this regard, there is a substantial case for excluding from the appointment of the Judicial Appointments Commission the appointments of the seven High Court judges. I do not wish to say more at the moment. I would be grateful if the Minister would explain why the break point should be between High Court judge and Court of Appeal judge rather than between county court judge and High Court judge.

Baroness Scotland of Asthal

I entirely agree with the noble and learned Lord in relation to the importance of the role played by all High Court judges. He rightly said that the appointment of a High Court judge is an indication of the highest possible merit. If I may respectively say so, however, that is as true of England and Wales as it is of Northern Ireland. It has to be borne in mind that the seven High Court judges in Northern Ireland are responsible for 1.5 million people. The judges in England and Wales—they are equally important and equally discharging weighty matters—are responsible for an equal if not greater number of citizens of our country.

The real reason—the review recognises this—is that the Lord Chief Justice and Lords Justices of Appeal are Privy Counsellors with wider UK responsibilities. At the level of a High Court judge, of course, the High Court judge's jurisdiction is in relation to Northern Ireland or England and Wales. At that stage, there is a separation. One has to look at a situation where devolution will mean that justice should properly be entrusted to the new devolved administration. It was, therefore, thought right and proper that the line should be drawn at the level below that at which the judges become Privy Counsellors with UK-wide responsibility. That was the line drawn in relation to Scotland. It was thought right that a similar line should be drawn in relation to Northern Ireland so that it will be given the same trust and confidence if in due course that all appears to be merited and may enable the devolution of justice matters to them to take place.

It is always going to be difficult to draw the line at the right place. Arguments will doubtless be made either way. Some would perhaps have urged that the line be drawn higher and some—as they do today—that it should be lower. The review got it about right and it should, therefore, be supported. There is some sense in the way in which the matter has been put forward. We would, therefore, respectfully adopt it and invite those Members of the Committee to be more comfortable with it than they have perhaps been hitherto.

Viscount Brookeborough

I am fearful of venturing into this debate because I am a lay person in judicial matters. However, I must own up to being a member of the Policing Board in Northern Ireland. The noble Lord, Lord Rogan, referred to the Policing Board and the recent appointment of a Chief Constable for Northern Ireland.

As I understand it, the High Court Judges are the highest part of our internal judicial system in Northern Ireland. The Policing Board has appointed a new Chief Constable. I was not on the sub-committee that did it, but he was appointed by the board and ultimately by the Secretary of State. However, there is a tremendous row going on at the moment about that appointment.

We are all aware that the Policing Board consists of political and independent members. I am an independent member of it. I am as independent as the other independent members, but every one of them is labelled in the public's view as being on one side or the other, with the possible exception of one person from an ethnic minority in Northern Ireland. There is no question about the public perception of the make-up of the Policing Board or any committee of it. That is why we are having a row.

As a member of the board, I have no doubt about the integrity of the people who took part in that choice of Chief Constable. However, it is not what happened within the confidentiality of that meeting or series of meetings that is perhaps having a detrimental effect on the person who may be taking up that post and the people who were rejected; it is what the public perceive.

If that system works in Scotland, that is okay for Scotland. We are talking about justice within Northern Ireland. We are trying to do something far sooner than many of us would have expected four or five years ago or even last year. Therefore, the perception of this is going to be all-important. I honestly do not think it is the right time to do it at present.

Secondly, the Minister has twice already hidden behind this review and what the review says. Later on we will find that the Government will disagree with the review. I beg to suggest that the review is not a Bible on what is right and what is wrong. This could have very serious consequences in Northern Ireland if it is perceived by the public to be wrong. I have no doubt that when the commission is appointed it will be made up of people of the utmost integrity who will not permit their background—whatever it may be—to interfere with their decision.

4.15 p.m.

Lord Mayhew of Twysden

May I take advantage of the rules of this Grand Committee to come back again, I hope not at undue length? What we have just heard is very much from the noble horse's mouth, and I suggest that we should take it very much to heart. In the whole of my time dealing with Irish affairs—which of course is minuscule compared with that of many who sit opposite, but it goes back ministerially for a period of nine or more years—I have never heard it seriously suggested that the judges were other than completely impartial.

As it happens, it was a matter of felicity that in the High Court at least the judges from the main minority—the Catholic community—represented the demographic proportion of their religion, and sometimes a shade more. The point was that they were appointed not by machinery originating within Northern Ireland, but by the Lord Chancellor—of course, by reference to the judges in Northern Ireland and other proper sources, I do not doubt. I hasten to add, however, that they never included the Executive, nor should they have done so.

We have just heard a cogent explanation of why it is important that that should not be disturbed and how readily foreseeable it is that suspicion will arise if it is disturbed. That should be taken very much to heart. From my standpoint, I certainly see it as soundly and realistically based.

The Minister said that the distinction between a High Court judge and a Court of Appeal judge was that the latter was a member of the Privy Council. That, of course, is true—it is a formal distinction. However, I would like the Minister to help the Committee—if not now, perhaps at a later stage—with such instances as are recorded of the extent to which, by virtue of being members of the Privy Council, Court of Appeal judges in Northern Ireland have exercised UK responsibilities. It may be that they have, but I cannot call any instance to mind. It may be that they sit, not infrequently, in the Judicial Committee of the Privy Council, but I do not think so. If that is to be the ground of the distinction, perhaps we could be told— if not now, at a later stage—how often the extra jurisdiction is exercised.

Baroness Scotland of Asthal

I am certainly willing to try to help the Committee on that matter. The importance, of course, is the ability or eligibility to exercise it on a UK-wide basis, as opposed to restricting it to a jurisdictional basis. The noble and learned Lord will fully understand that, whether it is discharged or not—or exercised or not—the distinction is that there is residual power or discretion to so exercise. I hope that the noble and learned Lord will accept that that is, indeed, a material distinction between the two.

The Government will devolve the powers only when we are confident that the structures will bear it and that the parties are ready. For example, there will need to be a cross-community vote in the Assembly in favour, so it will not happen before everyone is ready.

We must also bear in mind several further points. First, we do not treat the review as a Bible from which we cannot detract any jot; we take it seriously. Only if there is good cause to depart from the reasoning of the review do we think that it is right to do so. The Committee will know the amount of work, effort and commitment that brought the review into being. It would almost be an act of vandalism, if I may respectfully say so, to dismiss the recommendations made by the review body, without giving them the most careful and the most judicious consideration. We have made that balance in the way in which we have sought to respond to the recommendations.

Members of the Committee will also be aware that Clause 5(8) provides that the selection of persons for appointment to the office must be done solely on the basis of merit. That merit-based test will continue to apply to High Court judges, and it is simply not right to say that the High Court judges in Northern Ireland, of whom there are in fact eight and not seven—we do not want to displease the eighth member, who may think that they have somehow been neglected—will in some way be the final point of recourse for the citizens of Northern Ireland. The citizens of Northern Ireland will continue to have access to the higher judiciary above the High Court judge, so it is not the end of the road, so far as the citizen in Northern Ireland is concerned.

The important thing is deciding where to draw the line. The noble and learned Lord, Lord Mayhew of Twysden, is absolutely right to say that there has never been a suggestion that those who discharge that onerous but honourable duty have done it in anything other than a totally honourable and independent way, without fear or favour for either or both parts of the community. There is no indication that the pool of talented lawyers from whom the High Court judiciary in Northern Ireland has traditionally been drawn has in any way shrunk. I am sure that Members of the Committee know better than I do the courage, determination and fortitude that it takes to be a really first-class professional lawyer in Northern Ireland. It is from that pool that we have taken our judges in the past, and it is from the same pool that we shall take them in the future. As the noble and learned Lord rightly says, we have had judges from both sides of the divide and all have discharged their duties in a way that we would commend.

I understand that this is difficult for noble Lords, but there comes a time when we have to invest a certain element of trust and confidence. If, in due course, we believe that the structures will bear it and the parties are ready, that will be the time when this matter will have to be handed over. Noble Lords know far better than I do that one can never guarantee when that time will be.

It may be important for me to clarify something that was said in response to an earlier question from the noble Lord, Lord Molyneaux. It is not correct to say that the Bill is not to be implemented until after the next Assembly elections. Many of the provisions will certainly be commenced before Assembly elections and others may be commenced before any Act or devolution of justice functions. The main target relates solely to the devolution of justice functions, on which some of the Bill's provisions are dependent. Some of those justice provisions may take a little longer.

Lord Molyneaux of Killead

I am grateful to the noble Baroness. Is her interpretation that the parts which will be implemented will be those that would result from the First Minister and the Deputy First Minister being unable or unwilling to act jointly in terms of the wording of the Bill? Will that be the dividing factor timewise for the devolution of the most important powers in the Bill? As the Bill stands, decisions on the appointment or, believe it or not, the dismissal of judges have to be taken by the two Ministers acting jointly. The laws and the constitution of the Assembly require the First Minister and the Deputy First Minister to be of different political parties and of different religions.

Baroness Scotland of Asthal

The noble Lord's contribution aptly demonstrates the complexity of this issue. The best I can do is to reply in the way I replied earlier, namely that we shall devolve only when we are confident that the structures will bear it and the parties are ready for it. That judgement will have to be made in due course, but we understand the importance and delicacy of that judgment and the need to be proportionate and balanced.

Lord Glentoran

I have nothing much to add except to say that my noble and learned friend Lord Mayhew and the noble Viscount, Lord Brookeborough, have made strong and clear arguments as to why we believe that the Government have got it wrong on this occasion. That is my position as the spokesman for my party.

Lord Rogan

Could the Minister give me guidance on what criteria the Government would use in deciding that such functions could be transferred to Northern Ireland?

Baroness Scotland of Asthal

I can do no better than quote what was said by my right honourable friend John Reid in relation to the Criminal Justice Review Implementation Plan. On page 2 he says, Once the devolved institutions are working effectively, the Government intend to devolve responsibility for policing and justice functions, as set out in the Belfast Agreement. We need first to take some major steps to implement the Criminal Justice Review and to make some more progress on detailed implementation of the Patten report. A final decision to devolve these functions can only be taken at the time taking account of security and other relevant considerations. But the Government's target is to devolve policing and justice after the Assembly elections scheduled for May 2003".

4.30 p.m.

Lord Fitt

I would be very apprehensive of the involvement of any political figures in Northern Ireland with regard to judicial appointments. Throughout the debate in another place, we were told that the target date is after the Assembly elections of 2003—next year. Again, we have been asked what criteria the Government will set down or abide by and whether or not to devolve the institutions. At the moment, the Assembly seems to have cross-community support. What happens, however, if the elections in Northern Ireland in 2003 throw up a different set of candidates, who will not have the support of the majority of Members in this House?

Those Members who will be elected then, whether we like it or not, will have been elected by the democratic process of voting in Northern Ireland. We are putting ourselves in the position of saying, "We don't like the result of this election, we don't like what the electorate has tried to do so we will not devolve these powers". We are in fact overarching the decision that will have been taken by people in Northern Ireland. Unless we agree with the composition of the political Assembly which is going to be established, those powers will not be devolved.

Perhaps I have been around the House for longer than most. We are talking of political influence in the appointment of judges. Other judges, in this House and in another place, have said that there has never been any political influence. I do not believe that for one moment. There was and always has been political influence in the appointment of judges in Northern Ireland.

I shall illustrate the case. In the early 1970s I was approached by certain members of the legal profession in Northern Ireland to see what I could do to secure the appointment of a particular judge, who was then a QC. He had a fantastic war record in every respect but he had something against him: he was a Catholic. There was no way, in the opinion of the lawyers who approached me, that he was going to get the job. I took it upon myself to go to the then Lord Chancellor, Gerald Gardiner, and the Attorney-General, Elwyn Jones, and I gave the CV of the QC to them. They agreed wholeheartedly with me that he was a very suitable person for the appointment. They then told me on the Terrace of the House that they were having great difficulty with the Northern Ireland government, who wanted to appoint someone who had been a former Unionist MP as the judge. An argument waged between the Lord Chancellor's Department and the Northern Ireland government about whether the person should be appointed. The relatives of the judge could give their own evidence on that. At the end of the day, the Lord Chancellor said to me, "We cannot overcome all the objections that had been raised by the Northern Ireland government, who want to appoint this particular judge because he was a former Unionist MP. Do you know what we will do to find the easiest way out of this? We will appoint two judges".

I put that case to Members of the Committee to illustrate the fact that there has always been political influence in Northern Ireland. As the noble Viscount said, the Policing Board had a tremendous row about the appointment of the new Chief Constable of Northern Ireland. The nationalists wanted a particular person whom the Unionists did not, and it finished up in an unmerciful row. It will be exactly the same if there is any political influence—cross-community or otherwise—in the appointment of senior judges in Northern Ireland.

To the Minister, I pose again a question that has already been asked: what happens if the First Minister and his deputy cannot find agreement on a recommendation? Such appointments will be riddled with difficulties of all sorts if there is any political element in the appointment of members of the judiciary.

Baroness Scotland of Asthal

I understand the noble Lord's concern about those matters. Of course, we are considering the difficulties that will arise if there is conflict between the two. We believe that the model outlined in the Bill will deal with the situation, and we must keep the issue in perspective. The Judicial Appointments Commission will have 13 members, including the Lord Chief Justice. It is only the five lay members—a minority—who will be appointed by the First Minister and the Deputy First Minister, and they must be appointed jointly.

The way in which the commission has been structured creates the balance that should make sure that merit is put first and becomes the only criterion that will determine appointment. I am sure that noble Lords will agree that the inclusion of the Lord Chief Justice as the chairperson of the commission will be a powerful instrument for independence and will ensure that the right importance is given to merit as the appropriate criterion for making that decision.

Viscount Brookeborough

The appointment of the Chief Constable was mention—not, in the first place, by me—and it has been emphasised by the Minister that the appointment of the judiciary will be by merit only. I can assure the Committee that the decision on the appointment of the new Chief Constable was based on merit only.

Baroness Scotland of Asthal

I cast no aspersions in relation to that matter. The only point that I sought to make was that the balance was different. Within that membership, there is an overwhelming independent element. We are not suggesting that the independent members are not independent but, as the noble Viscount said, it is perhaps easier to identify certain members of the community with a view, whether they hold it or not. The way in which this has been structured helps to mitigate any such concern.

Viscount Brookeborough

The independents are in the minority. There are 10 political appointments and nine independents.

Lord Tebbit

What moves the Minister to think that, say, Mr Paisley and Mr Adams would have the same ideas about the merit of individuals as I or the noble Lord, Lord Fitt, or the noble and learned Lord, Lord Mayhew of Twysden, or even the Minister herself might have?

Baroness Scotland of Asthal

That is an enticing thought for us to consider. There are some solutions for cases on which the First Minister and Deputy First Minister cannot agree. Clause 5(7) provides that, The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration". So, although they can send it back, the second recommendation made by the commission must be accepted. I hope that that provides a means out of the conundrum that the noble Lord so delighted us by suggesting.

Lord Rogan

If I have understood the Minister correctly, she was arguing that the impartiality and fairness of the Judicial Appointments Commission will be guaranteed by its professional make-up, with those members from the legal profession. If that is the case and if that is what she meant, why bother having five or six lay persons at all?

Baroness Scotland of Asthal

It is all a question of balance. The decision will be made on the criterion of merit and merit alone, but it is right that those who come to make the decision should listen to all parts of the debate so that they can weigh it appropriately before coming to a well and properly informed decision, as opposed to one that may be seen to be influenced by prejudice or lack of balance. We think that the current balance of 13 members, five of whom are lay, is about right. It allows the commission to consider the issues that are important across the board, but it enables decisions to be based on the needs and qualities that will be of the utmost importance in appointing the right judicial officer for a post of this gravity.

Lord Rogan

I have heard the arguments and at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Clause 2 agreed to.

Lord Desai

moved Amendment No. 7: After Clause 2, insert the following new clause—

"JUDICIAL APPOINTMENTS: GENERAL PRINCIPLES Those responsible for making appointments under this Part shall as far as practicable ensure that the judiciary, as a group, are representative of the community in Northern Ireland.

The noble Lord said: The amendment was in effect discussed when we debated the merits of the representativeness of these bodies. The principle of independence has been recognised, but the other important principle was the representativeness of this institution. Many of the institutions said that in consequence of the Belfast agreement this principle has been followed in the Northern Ireland Human Rights Commission, the Parades Commission and the Policing Board. It is important that we have representativeness in the Judicial Appointments Commission. Whatever else we may have a problem with, under-representation on the Judicial Appointments Commission would be very bad. I do not think that anybody can disagree with that. Although I recognise from the discussion that having a representative commission does not necessarily solve all political differences—and I would be very surprised if the appointment of the chief of police was an uncontroversial decision in Northern Ireland in any case—the important point is that communities are represented and have had their say and at the end of that we have a decision. Representativeness is an important principle and I therefore urge the Grand Committee to accept the amendment. I beg to move.

Lord Tebbit

I hate to find myself in any sort of conflict with the noble Lord, Lord Desai, but I think that there is a problem with the amendment. The amendment itself has great merit, but Clause 5(8) says: The selection of a person by the Commission to be appointed, or recommended for appointment, to an office … must be made solely on the basis of merit. That seems to he in conflict with a requirement to take into account which community they represent. The new clause does not seem to be compatible with Clause 5(8).

4.45 p.m.

Lord Desai

Perhaps I may respond to the noble Lord, Lord Tebbit. In other institutions, such as the Policing Board, where the same principle has been followed, no one has said that those who have been appointed are not people of merit. It will not appoint people who lack merit just because they are representative but, from the large pool of people of merit that we have available, we should look to the element of representation as an important principle.

Lord Glentoran

It is with some sadness that I find, in such debates, that I am never in agreement with the noble Lord, Lord Desai. We can be good friends elsewhere, but we rarely seem to agree on Northern Ireland matters. Once again, I have to disagree with the noble Lord on his amendment.

The business of being "representative of the community" has become such a loose, almost journalistic phrase that it would be inappropriate to incorporate it into a Bill as important and objective as this one must be.

Lord Laird

While I have some sympathy with the concept behind the amendment tabled by the noble Lord, Lord Desai, I agree with the noble Lord, Lord Glentoran. These are loose words. Let us take the example of the Northern Ireland Human Rights Commission, which is supposed to be representative of the entire community. Despite that, large sections of the community are left out.

A further example, which I know well, is that there is no representative of the Unionist "No" community, no representative of the Evangelical community, and no representative of the Ulster-Scots community. This is an issue on which I, along with the human rights groups with which I am associated, am totally in synch with the Pat Finucane Centre in Londonderry. We have jointly made representations to the Northern Ireland Office to see whether we can achieve better representation. The phrase "representative of the community" means what anyone wants it to mean.

Lord Shutt of Greetland

I should like to speak to this amendment. While I am happy with the spirit behind it, there are difficulties with the word "representative". In Northern Ireland, if five people are together and the word "representative" is mentioned, there would be one from the DUP, one from Sinn Fein, one from the SDLP, one from the UUP and a person whose children go to an integrated school. If it is not, someone will say, "Our lot are not represented". That is the problem with the word "representative".

If the word "reflective" rather than "representative" were to be used, that would be a far more acceptable amendment to the Bill. Perhaps what the noble Lord, Lord Desai, has suggested is this: if one stands back and considers that group of five people, do they look like a group who, by and large, are reflective of the community of Northern Ireland?

Lord Hylton

The noble Lord, Lord Glentoran, may perhaps have a point about the precise wording of this amendment. I am sure that Members of the Committee agree that appointments at this level should be made entirely on merit. Nevertheless, in the past there have been far too many instances of accused persons being brought before the court and then refusing to accept the jurisdiction of that court. That is probably what the noble Lord, Lord Desai, is trying to counter. I believe that he seeks to make the judiciary as representative of the whole as possible. I hope that the Government will look with a sympathetic eye on the spirit and intention of his amendment.

Lord Mayhew of Twysden

I recognise the good intentions of the noble Lord, Lord Desai, but it is extremely difficult to incorporate this kind of language into the statute book.

In paragraph 6.87 of the report of the review, which I do not propose to quote, it is clear that while careful consideration was given to using the word "representative", the group actually preferred the word "reflective". However, in my view, it is not capable of meaning anything in practical terms—in the real and practical interpretation that has been given to it in Northern Ireland—other than that it is probably representative of the religious split. That is what is meant by the community. We have all tried to insist for years on referring to "the community". The reality is that there are two communities, and various sub-communities as well.

It is important that we do not give legislative encouragement to the notion that the principal division is always going to be by reference to religion. I cannot see any other criterion by reference to which representation of the community is going to be made in Ireland. How can it be made by reference to political allegiance? Judges are not expected to have any political allegiance. Certainly barristers or solicitors who are being considered for appointments to the Bench ought not to be considered by reference to their political allegiance, if any.

We should take advantage here of the consideration and advice given by the review body, and, while acknowledging that it would be very nice if nobody could ever say, "Well, of course, that chap who tried my case has nothing in common with me", the truth of the matter is that one will always get that. When people in the past refused to recognise the jurisdiction of the court, it had nothing to do with the religion of the judge or what part of the community he came from. There were other reasons for that, as we all know.

Baroness Scotland of Asthal

I am grateful to the noble Lord, Lord Desai, for tabling the amendment, and for the comments that have been made by a number of noble Lords. In relation to the exercise of judicial office, it is right that we should all bear in mind that all judges represent the impartial rule of law as opposed to any particular community. The oath in Clause 19 that we are going to invite each of our judges to take makes it clear that they will do, right to all manner of people without fear of favour, affection or ill-will according to the laws and usages of this realm". The idea of a statutory requirement to secure a reflective judiciary has been discussed in another place, where the notion was resisted because of the fears that appointing a judiciary with regard to reflectiveness could undermine the merit principle, which could lead to the undesirable criticism that judges were appointed to even up the numbers rather than on merit.

That is clearly not the intention of the review, which recommended that merit should remain paramount. Everyone present in the Committee today would agree with that sentiment.

It is also right for us to bear in mind the situation in Northern Ireland as it is today, not as it was 30 years ago. We all know that there is a very good pool of candidates from both communities and of both sexes who would be capable of being appointed to judicial office. Provided that people apply for these posts from both parts of the community, we are confident that the judiciary will reflect the wider community. We believe that strict application of the merit principle will ensure that that happens.

It is also right for us to emphasise that, whether we say "representative" or "reflective", this does not just cover the two religious communities in Northern Ireland; it also covers gender, ethnicity and community background, both when used in this context and elsewhere on the statute book.

Bearing in mind the sensitivity that exists around this issue, it would not be right to accept the amendment, even if it were amended to say "reflective", because it may then lead to the suggestion that we are inviting our judges to dispense justice in accordance with the precepts upon which their community is run. I know that no-one in this Committee would wish to do that. As we said, the judges have done a robust and brave job. To the best of my knowledge and belief—I am sure that noble Lords will correct me if I am wrong—all judges, irrespective of where they hail from, have, to date, dispensed justice in the cases that have come before them with the same degree of impartiality, regardless of whether they are Unionist or Catholic.

Lord Desai

I thank everyone who has spoken. I see the dilemma: we do not want to think that the judges are, in some sense, delegates of the community. I did not suggest that they should be. I did not even set down what constituencies they would be representative of; I just suggested that they, are representative of the community". I recognise that there is a problem, and we must live with it. It seems that, by some mysterious process, those appointed will eventually be reflective—or whatever word we use—of the community without our putting down any stipulation to ensure it. No matter how good those people are, we shall have problems if the community does not consider that they reflect it. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Listed judicial offices]:

[Amendment No. 8 not moved.]

Schedule 1 agreed to.

Clause 3 [Judicial Appointments Commission]:

[Amendment No. 9 not moved.]

Lord Glentoran

moved Amendment No. 10: Page 2, line 30, leave out "five" and insert "six The noble Lord said: In moving Amendment No. 10, I shall speak also to Amendment No. 11 and the others. The amendments concern the make-up of the appointments commission. The first two deal with the membership of the Judicial Appointments Commission and propose a re-balancing of the numbers. The others deal with the qualifications of the lay members.

I am rather loath to say what I am going to say, but I shall do so nonetheless. We are talking about the review as if it were the Bible, which it is not. The review did not recommend a precise figure for the membership of the commission. It says: In total the Commission might consist of around five judicial members, two from the professions and four or five lay members". My amendment would ensure that there was a majority on the commission of members of the judiciary. It seems to me, from the many discussions that I have had about the topic, that the appointments for which the commission is responsible are objectively judicial-legal. If we are to stay with the merit principle throughout—I sincerely hope that we will—we must have a majority of people on the appointments commission who are able to assess, balance and judge the merit of the various lawyers who will come before them for promotion and appointment.

It can be argued one way or another, but I am assured by my noble and learned friend Lord Mayhew of Twysden that a barrister is certainly not a member of the judiciary. If we examine the numbers, we will find that there are seven lay and six judiciary members, including the chairman. That balance is wrong, and there should be a clear majority of members of the judiciary on the appointments commission.

I propose to change the figures from five to six, in one case, and from five to four, in the lay case. That creates a clear balance. Our debate on the previous amendment is relevant. If we stand over the fact that these people will be independent human beings and will be there on merit, I believe that there would be a much better chance of maintaining the merit principle and of maintaining the exceptionally high standards of the judiciary in Northern Ireland, than if we were to allow the balance to drift. Whether it involved a 50:50 split or perhaps a barrister tying in with the Lord Chief Justice or the chairman to make a deal—which is the way in Northern Ireland—that potentially would lead us into difficulties of a serious order.

Amendments Nos. 12 and 13 relate to the qualification regarding the lay people. Here and throughout the Bill, the Minister will find that I have tabled amendments with only one clear objective; namely, that the judiciary, along with all those who have anything to do with the judiciary in Northern Ireland, should not only be seen, but be perceived to be totally whiter than white. At this point in our history we cannot have former terrorists, former con men, former criminals, former prisoners and the like involved in any part of our judicial system. That is the purpose of the amendments. I beg to move.

5 p.m.

Lord Rogan

I should like to speak to Amendments Nos. 10 and 11 and, if it aids the speed of debate, to speak also to Amendment No. 19 standing in my name. The whole of Clause 3 provides for the Judicial Appointments Commission. There is widespread acceptance of a global shift towards the use of such commissions. One cannot oppose the concept of such a commission and I do not seek to do so. However, I am troubled by certain issues with respect to its make-up.

The use of lay members is questionable in itself, but at least the balance of the commission should favour more strongly the expert judicial members than any others. How could a lay member—one who specifically should not have held and had never held a protected judicial office, who has never been trained as a barrister or a solicitor—be competent to judge on the merits or otherwise of persons to be appointed? The only way I would be able to judge whether a judge was good or bad would be whether or not he found me guilty, should I be before him in a court.

It must be remembered that lay members are to be restricted to those who have at no time qualified as lawyers or held judicial offices, excluding many academics and other professionals with a legal background. If we insist that lay members should be selected by the First Minister and Deputy First Minister, and if they are charged with making these appointments, perhaps I may suggest that appointing an even rather than an odd number would produce a better chance of agreement.

Lord Glentoran

I have already spoken to Amendment No. 14, as the Minister noticed rather sooner than I did. I did not intend to move Amendments Nos. 12 and 13.

Baroness Scotland of Asthal

As noble Lords have rightly pointed out, Amendments Nos. 10 to 13 seek to restrict involvement in the new Judicial Appointments Commission. During the consultation exercise, the review struck a careful balance in its recommendation. Some argued that lay involvement went too far—a view which may be reflected in our Committee—while others felt that it did not go far enough. I believe that the provisions in the Bill are about right. One could almost assume that if no one is happy, then we must have got it right. Amendments Nos. 10 to 13 would amend the membership of the commission in favour of the judiciary and legal professions. They would increase the number of judicial members and decrease the lay membership, opening it to solicitors, barristers and former judges. We believe the review was right to identify the useful contribution that lay members could make to the appointment process. Noble Lords will be aware that a very similar process is well under way in Scotland. Lay members will bring a valuable perspective and alternative skills to this difficult process. I would be the last to suggest that lawyers lack omnificence, but I hear it rumoured elsewhere that this is in fact so. The lay involvement is important for public confidence. I urge the noble Lord to withdraw this amendment.

Similarly Amendment No. 18 would remove the lay magistrate representative of the Judicial Appointments Commission and replace this with a magistrate representative. I am not clear why that is preferable to the resident magistrate, as is already provided for.

Amendment No. 19 would add a deputy county court judge to the judicial membership of the commission. That would go against the review, which recommended one judicial member from each tier of the judiciary and carefully balanced the number of legal representatives against the number of lay representatives. A deputy county court judge would come from the same tier as a full judge, so they should not be included.

It may be helpful if I outline the way in which the total of 13 will be made up because I am not sure whether all Members of the Committee are aware of it. The Lord Chief Justice will be in the chair. There will also be one Lord Justice of Appeal, a High Court judge, a county court judge, a resident magistrate and a lay magistrate. Then there are five lay member representatives of the community, one barrister and one solicitor. We think we have the balance right. Looking at models that are being adopted across the board, not just in relation to judicial appointments, it is felt that those who do not come from that particular discipline but may be subject to the acts and omissions of that discipline should participate or have a contribution to make in the selection process, because it enriches the knowledge of those who come to make the selection. The five lay members may add something of real value. I invite the noble Lord to withdraw the amendment.

Viscount Bridgeman

I have a general point to raise under Clause 5(8), which runs through many of the clauses we have discussed. I would like clarification. This subsection appears to be unconditional and therefore, as I read it, does not permit any other subjective judgment such as reflectivity or representation. Let us consider the case of six candidates for three posts, three from party A and three from party B. The order of merit, as assessed by this clause, puts those from party A at positions one, two and three and those from party B at four, five and six. Is the Minister prepared to live with that situation if my interpretation of the clause is correct?

Baroness Scotland of Asthal

Merit would dictate that the best people should be appointed to the post. However, perhaps I should have drawn the Committee's attention to the Government's comments in the Criminal Justice Review Implementation Plan on recommendation 69, which deals with the judiciary being reflective of society. We said: The Government supports the principles of equal opportunity and outreach which seek to stimulate interest in judicial office from sectors that may have been historically under-represented, thus encouraging a greater number of applications from a broader range of candidates suitable for judicial office". The Northern Ireland Court Service will take these issues forward in consultation with the Equality Commission.

The Judicial Appointments Commission in Northern Ireland, to be appointed in early 2002—referring to recommendation 95—will also have a monitoring role in this area and will be consulted as the systems and policies are developed further. The Government welcome the review's acknowledgement of the continued primacy of the merit principle.

There will be an active engagement of all parts of the community to apply for these posts. Noble Lords will know that it is rare indeed for merit to be absolutely identical for each candidate. I shall say that there is an active recruitment policy across the board. As I said earlier in my remarks, there is today a pool of talented lawyers from both sides of the community available in Northern Ireland, which was not the case many years ago. It was said then that there was an imbalance in the talent available. We can reasonably anticipate that if there is an active recruitment policy across the board, and if one then applies the merit principle, it is difficult to see how the situation envisaged by the noble Viscount—that of candidates from one group taking positions one, two or three—could arise.

There will be a monitoring role. However, noble Lords know that in relation to other parts of legislation, such as discrimination on the grounds of sex or race, by monitoring a system it is possible to see whether any systemic discrimination is in operation, to the disadvantage of one group or another. Of course we shall bear that in mind. However, we are confident that there is a sufficiently large pool of talented lawyers from which the selections can be made to ensure that the fear voiced by the noble Viscount is not grounded in fact, although I understand completely his concern.

Viscount Bridgeman

I am most grateful to the noble Baroness for that full explanation.

Lord Glentoran

This has been an interesting debate. I apologise for speaking to an amendment in the following grouping. I give notice to the noble Baroness, Lady Scotland, that we shall certainly return on Report with Amendments Nos. 10 and 11. For the present, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 11 to 13 not moved.]

Lord Glentoran

moved Amendment No. 14: Page 2, line 39, at end insert— () Any person who has, at any time, been sentenced to a term of imprisonment whether suspended or otherwise for a term in excess of six months shall not be permitted to be appointed as a member under subsection (5). The noble Lord said: I have already spoken briefly to Amendment No. 14. I beg to move.

Lord Molyneaux of Killead

This is where we come to the words "reflective" and "perception". I do not feel that a perception of the greater number of people—whatever their religion or political outlook—would condone the idea of appointing to these bodies people who had been convicted and had served sentences. There is a stipulation here because it does not discriminate against someone who inadvertently committed a crime. We are talking about a fairly serious crime.

Again, the word "reflective" has been used in another sense. I do not think that it would be reflective to suggest that we should do other than embody in the Bill the amendment just moved by the noble Lord, Lord Glentoran. I believe that a far greater number of people would feel that that would be monstrously unacceptable. I cannot imagine that there would be practically any support for such a thing.

Baroness Park of Monmouth

Briefly, I should like to make a minor point. When we discussed "reflectiveness" and so forth, what we really sought was a formula that would have, the confidence of all parts of the community". I quote from the Belfast agreement. It seems to me that, if a clause of the kind proposed by my noble friend Lord Glentoran is not included, there will be a lack of confidence among the community.

5.15 p.m.

Lord Smith of Clifton

In speaking to this amendment. I shall also speak to Amendment No. 38, which is preferable to the amendment that the noble Lord, Lord Glentoran, has moved. There are cases of people who have been involved in violence and criminal activity redeeming themselves and making considerable contributions to the community and to the peace process. I agree that were they to continue in that violent vein, it would be inappropriate for them to be members of the commission, but past records must be expunged if there is evidence of subsequent redeeming conduct.

My amendment requires people to make a commitment to peaceful and democratic processes, but it does not exclude those who may have previous convictions.

Baroness Park of Monmouth

It is entirely acceptable for people who have tried to expunge their past to serve the community again, and there are many ways in which they can. However, this is not an appropriate one.

Viscount Brookeborough

I support the first amendment but not the second. We are talking about all sorts of crimes, not necessarily terrorist crimes. The vast majority of people in Northern Ireland—of both the religious communities—are law-abiding. The judiciary should support the law-abiding community.

Lord Smith of Clifton

May I make a correction? I was speaking to Amendment No. 17, and not, of course, Amendment No. 38.

Lord Hylton

I am aware that there is a review going on of the Rehabilitation of Offenders Act 1974. I apologise for not having given notice of my question, but I would like to ask the Minister to say something about how that review is going and how the Act might affect anything that would be done by the amendments.

Lord Fitt

I hesitate to speak to the amendment. It is said outside the House that, once you become a Member, there is a danger of losing your memory. That must have affected me. I stand here as a convict. In 1969, I took part in a Civil Rights demonstration in Derry and, later on, in Newry. Those Civil Rights demonstrations were banned by the Northern Ireland Government. Anyone who took part in them was sentenced to a mandatory six months' imprisonment. I was part of it, so were John Hume and Seamus Mallon, and all the political figures who took part in the Civil Rights demonstrations. We did not go to gaol because there was an amnesty.

The proposed provision would disqualify me from being part of any of the political establishments in Northern Ireland. I was sentenced to six months, even if the sentence was later done away with by way of an amnesty. There are certain eminent people who have a past in that context but who, I am sure, are accepted as part of the peace process in Northern Ireland.

Lord Glentoran

I point out to the noble Lord, Lord Fitt, that my amendment says: in excess of six months". I support the thinking behind Amendment No. 17. I wonder whether it might not be a useful addendum to my amendment to ask the person selected to make a declaration to the effect of the principle set out in Amendment No. 17.

Lord Tebbit

It does not particularly matter whether the figure is in excess of six months—that, as my noble friend says, has the merit of keeping Gerry Fitt on the side of justice and the angels, which is where he usually is, of course—or whether the figure is less than that. It seems to me and to many others that it would be highly offensive if convicted terrorists, murderers, blackmailers, extortionists, bombers and the like were qualified to take up those offices and not to be disqualified from doing so. I speak for a very large number of people when I point out how grossly offensive it would be if people of that kind qualified under this legislation and if the Minister opposed the amendment that was moved by my noble friend. I would regard that as quite disgraceful.

Lord Laird

If this is the correct procedure, I would like to speak to Amendment No. 38. It would have the same effect; that is, of excluding people from the commission and the committee who have criminal convictions.

I agree with the noble Lord, Lord Tebbit, and others, that this issue is a watershed. The Bill will either fall or stand in terms of its credibility in Northern Ireland. The importance of this issue cannot be over-emphasised. We have a heavy duty in this regard. We have a process that many people find unsatisfactory and most of us are working with it to the best of our ability. However, there is a stage at which the ordinary person in the street will not have any confidence in the Belfast agreement and all the other sundry items that have been introduced. I caution the Government in relation to this group of amendments.

Lord Mayhew of Twysden

We have heard two powerful speeches that invite us to pay attention to what the ordinary person, if he exists—the man in the street or however we describe them—would think. It may be argued that there is no bar, with reference to criminal convictions, to being a Member of the legislature of Northern Ireland. However, there is a distinction to be made. Such persons, by definition, have had to be elected—chosen—in the full knowledge of their past. What are we speaking about here? Something very different—the appointment by Ministers of the Crown to a body that will choose a commission that will choose the judges. That is a very different matter indeed.

I respectfully endorse what was first said by my noble friend Lady Park of Monmouth and which was alluded to by the noble Lord, Lord Laird; that is, that what we are after is confidence. When we were talking about the merits or demerits of the judiciary representing or reflecting the community, we were really talking about the judiciary having the confidence of the community. One cannot legislate for such confidence but one can legislate for certain criteria that will lead to confidence being enjoyed. Similarly, one can legislate for certain matters if one is misguided, which will ensure that confidence is withheld.

If we included in Clause 1—perhaps along the lines of the amendment that we discussed at the start of our proceedings—a statement that persons who have criminal convictions, notwithstanding the fact that they may extent to sentences of more than six months' imprisonment, shall none the less be entitled to be members of this commission, that would be a fairly unattractive beginning to the Bill. That is what one would hope the Government and anyone else with sense would have thought. However, if we resist the amendment of my noble friend, we should secure exactly that result. We should not lose sight of what everyday people think. We should not lose sight of the distinction between persons who, notwithstanding their record, are elected to a position in the legislature and those who are appointed on behalf of the Crown to choose the judges. My noble friend's amendment should be supported by the Government. I greatly hope that it will be.

Baroness Scotland of Asthal

It is with the greatest concern that I say that I am not able to fulfil that expectation because the Government do not feel able to support these amendments.

Amendments Nos. 14 and 15 seek to prevent those with prison sentences of more than six months or those who have been members of proscribed organisations from becoming members of the Judicial Appointments Commission. It was important when the noble Lord, Lord Fitt, said that in effect he would be disqualified. If the period had been for more than six months he would have been disqualified. A number of people may not be in quite as fortunate a position as he found himself.

Amendment No. 14 would impose a more stringent test for members of the commission than for MPs or MLAs. I of course hear what the noble and learned Lord, Lord Mayhew, said in relation to the distinction that should properly be drawn between those who are elected and those who are appointed. However, it is important to recognise that that difference in approach has been part of the experience of Northern Ireland, which has had to rehabilitate itself as a result of emerging from the troubled times that it has experienced.

Amendment No. 15 appears to apply not only to those convicted of membership but to anyone who has ever been a member of a proscribed organisation. It is not quite clear how that would be demonstrated.

Amendment No. 17 seeks to exclude any person who is not committed to non-violence and democratic means. Again, if I may respectfully say so, this is not entirely necessary. The matter boils down to a situation of trust. The First Minister and Deputy First Minister, the professional bodies and the Lord Chief Justice are going to take considerable care in making these important appointments. It is almost inconceivable that they are going to agree on disreputable candidates with criminal records because confidence is what Northern Ireland desperately needs. If any Members of the Committee have any doubts about that, they have only to look at the history. Everyone is fully aware that if this experiment—I stress that it is an experiment—is going to succeed, everyone is going to have to discharge their duty in relation to the choices that they make responsibly and robustly. Therefore, the issue boils down to whether we are going to trust the First Minister, the Deputy First Minister, the Lord Chief Justice and others to make the choice and to do so judiciously.

The Government are prepared to trust the devolved institutions to act responsibly in relation to these important matters. The Government are confident that the devolved institutions will perform their duties diligently. If we were not so confident, we could not go down this path. I therefore urge the Committee to think carefully about what we are saying about the confidence, integrity and good judgment and about the ability of the devolved institutions and the arrangements that we are making. We either decide to trust them or we do not. I should also emphasise that, again, in relation to these issues, they will not be devolved unless and until we are confident that the institutions are sufficiently robust to deal with them.

I anticipate that the noble Lord, Lord Tebbit, may regale us once more with the different personalities of the First Minister and the Deputy First Minister. However, we need to look to the future, it is hoped with a degree of confidence, and with a degree of trust. The Government are willing to do that.

5.30 p.m.

Lord Mayhew of Twysden

I am grateful for the care with which the noble Baroness has responded. I see that the amendment dealing with membership of a proscribed organisation has difficulties that are all its own— relating to proof of membership and so forth. That is why there have been so few prosecutions. We cannot get the evidence. Perhaps that point should be put to one side.

Can the Minister say a word about the suggestion made by my noble friend Lord Glentoran at the conclusion of his speech; that is, at least for a declaration to be made by those who are selected stating that they are wholly committed to non-violent methods and so forth? The wording is already in place.

That would chime with rather a successful requirement for participation in the all-party talks that took place a few years ago under the chairmanship of Senator Mitchell. All participants had to sign up by way of a declaration. That was very good for the purpose of instilling confidence in those outside in the bona fides of those taking part and in the propriety of their participation. That suggestion might meet many of the anxieties which have been expressed in various speeches in support of this group of amendments.

Baroness Park of Monmouth

Before the noble Baroness replies, I should like to put a further question. She talked about the need to show trust, but throughout we have been showing trust at the expense of ordinary people who have not been able to convince us that sometimes that trust has been misplaced. What would be wrong about giving the First and Deputy First Ministers the security that would be afforded by including in the Bill an express statement to the effect that the people named under Amendment No. 14—I do not refer to Amendment No. 15—should be automatically excluded from consideration?

If the noble Baroness believes that the First and Deputy First Ministers will secure and keep the trust of the people, they would never appoint people like that. Nevertheless, pressure will be brought to bear on them to do so—very great pressure, as we all know. What would be wrong with safeguarding the position and sending a signal to the public that this issue has been thought about and provided against?

Viscount Brookeborough

All legislation concerning Northern Ireland is about taking it forward. We are trying to produce something that is acceptable but, at the same tune, will ensure that it does not go off the rails through perception or anything else. By leaving in the possibility—when the Minister states that she does not like the requirement to be committed to non-violence, that automatically accepts that it is possible for somebody who is committed to violence to be acceptable within the law—if the occasion should arise, as the noble Lord, Lord Tebbit, has mentioned, with various personalities—unmentionable or otherwise—being split between the Deputy First Minister and the First Minister, then that, plus the perception as it could be seen by the public, is just what might push the Assembly apart.

If it is not an option at all, and because of the general feeling among nationalists and Unionists that they want to take it forward—other than those who are at the moment actively involved in terrorist offences—they will not question the fact that this provision has been put in. I say that from my experience of what goes on in Northern Ireland. It is simply not true that they would expect anything other than that.

Lord Smith of Clifton

Before the noble Baroness replies, I urge the Government to reflect on the emerging consensus around Amendment No. 17. As the noble Lord, Lord Glentoran, said—and the noble and learned Lord, Lord Mayhew, reinforced the point—a declaration that embodied those sentiments would give some reassurance if the Government feel that they cannot accept the other amendments. I ask her to consider that.

Baroness Scotland of Asthal

This has been a very interesting and important debate and it would be wrong for me to say that the Government will not reflect on what has been said. We believe that it is very important to retain a degree of flexibility. Perhaps I should touch on Amendment No. 38, which I have not dealt with. It would disqualify anyone convicted of a criminal offence from being appointed a lay member of the commission. I understand the noble Lord's position on this issue, but such an amendment would remove the flexibility that is required to set aside relatively minor or outdated criminal convictions held by an otherwise excellent candidate.

The noble Lord, Lord Hylton, made a point about the rehabilitation of offenders. As those provisions currently operate, many who committed minor offences as juveniles now have the right to have those in effect expunged, so that they are treated once again as reputable and decent members of the community. One has to bear that in mind.

We understand the anxieties that Members of the Committee have expressed, but we have to be realistic in our approach. Professional rules in the appointments procedures for the judiciary and the legal profession already debar people who have committed certain serious offences that have been mentioned in the debate from any appointment. The pool of people who can be appointed to judicial office is already automatically restricted, because a person has to hold a valid certificate.

The position for the commission is different. I understand that noble Lords are concerned that some of the five lay members, who may not have that probity and integrity, may participate in the choice. There does have to be some flexibility and trust on those matters and the appointments that are made. Of course, we will think very carefully about what has been said in the debate, not least in relation to the issue of a declaration. However, as currently advised, our position is that the flexibility that we need is contained in the way in which we have currently phrased the Bill.

Lord Tebbit

I thought the noble Baroness understood that we understand that the Government want flexibility, but a number of us do not wish the Government to have that flexibility, and for very good reason. It is no good the noble Baroness talking about people who in their youth have committed some minor offence—I do not know what she has in mind; perhaps shoplifting in Woolworth's—and then gone on to lead a blameless life. We are not talking about people who were shoplifting in Woolworth's; we are talking about people who were murdering, bombing and wounding.

Baroness Scotland of Asthal

I certainly understand that that is the intent and the import of the amendments, but the current technical language includes many people who do not fall into the category that the noble Lord has just described, but would fall quite easily into the category of more minor and less serious offences. The amendment would cut them all out.

Of course, we have listened to everything that has been said. We will reflect on it and we will return to the issue on Report.

Lord Rogan

Does the Minister agree that, for the reason that she gave—namely that the persons who will put themselves forward for positions will have been well vetted and will have exemplary backgrounds—it will, in fact, be demeaning and offensive to them to be judged on their merit by people who, we know, come from less than proper backgrounds?

Baroness Scotland of Asthal

That is where the divide is. The Government would argue that, if we put trust in the First Minister, the Deputy First Minister and those who will be entrusted with the devolved administration, it would be highly unlikely—indeed incredible—that they should choose persons with that type of history to fulfil the role. There is, of course, a division between us about that.

Lord Glentoran

With respect to the Minister, I must say that it is very much on the cards that either the Deputy First Minister or the First Minister will be a murderer.

Lord Mayhew of Twysden

I will spare the Minister the responsibility of answering that point immediately by asking whether she would be kind enough to tell the Committee what conceivable objection there could be to requiring a lay person to make the declaration with which we have been dealing? In what respect could flexibility be diminished, were that to be a requirement? After all, the judges, in whose appointment such a person will play a part, must take the oath, which embraces what would be included in the declaration, by definition. If a judge is to be required—at the expense of flexibility—to take an oath to do justly and so forth and, by implication, to avoid injustice and violence, what is wrong with requiring a person who will play a part in his or her appointment merely to declare, when notified of the First Minister's intention to appoint them, that they are opposed to violence?

The declaration is the key to the Government's thinking. We all understand the concept of flexibility, and, in our time, we have all taken refuge in it. What does it actually mean here that justifies declining to write into the Bill a requirement for a declaration?

Lord Scotland of Asthal

We have had an interesting debate. The matter has arisen as a result of our discussion, and we will take it back. I hear what the noble Lord said, and I can anticipate a screed of responses that I may be invited to make but which I would rather not make at this stage. I will consider the matter quietly, having gone through the issues and come back with a more cogent and well argued position. I can think of, perhaps, seven things that I might be invited to say, none of which would necessarily be judicious at this stage.

Lord Glentoran

I thank the Minister for her patience. I have no doubt that she has sensed the feelings and the temperature of the Committee on the matter. Had we been in the Chamber and not in Grand Committee, I would not have withdrawn the amendment but would have sought the opinion of the House. Here, I do not have that option, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 15 to 20 not moved.]

Lord Smith of Clifton

moved Amendment No. 21: Page 3, line 1, at end insert— () The Lord Chief Justice shall consult each tier of the judiciary before appointing the judicial members. The noble Lord said: The noble Lord, Lord Desai asked me to offer his apologies. He has had to appear before your Lordships' Select Committee on Economic Affairs and therefore seeks to withdraw Amendment No. 20. However, the amendment is almost identical to the one standing in my name. I therefore wish to move Amendment No. 21.

The judicial review indicated that the Lord Chief Justice should consult with each tier of the judiciary before appointing the relevant representatives; namely, the judicial members. We cannot find any provision in the Bill for such consultations to take place. If the proposals go through as they stand, we believe that the process will be completely dominated by the Lord Chief Justice and that he should be protected against any charges of cronyism. We think that he should consult with all levels of the judiciary. Not only would it be prudent to do so, but also it would protect his own position. I beg to move.

5.45 p.m.

Lord Mayhew of Twysden

Given that I have knowledge of three Lord Chief Justices, past and present, I would suggest with respect that it would be otiose to incorporate this into the Bill. I cannot imagine that any Lord Chief Justice would fail to consult with the judiciary in this context. It is important to ensure that, in drafting legislation, one does not seek to teach highly distinguished judicial officers—or, indeed, anyone else—to suck elementary eggs. That is my objection to the amendment.

Baroness Scotland of Asthal

I could not have put it better than the noble and learned Lord, Lord Mayhew.

Lord Smith of Clifton

When lawyers get together they all turn into cronies. The case for this amendment has been validated beyond my wildest expectations.

Baroness Scotland of Asthal

I do not know whether the noble and learned Lord would feel the benefit of a lay member.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

If Amendment No. 22 is agreed to, I must inform the Committee that Amendments Nos. 23 to 27 could not be called because of pre-emption.

Lord Glentoran

moved Amendment No. 22: Page 3, line 2, leave out subsection (7). The noble Lord said: Here we return to the "representative" debate. The amendment would strike out the subsection requiring the First Minister and Deputy First Minister to ensure that the lay members of the commission, are representative of the community in Northern Ireland". I do not believe that a duty should be placed on the First Minister and Deputy First Minister with respect to appointments to the commission. They are already under a discipline to come to an agreement about whom they will propose as lay members. I am not convinced that the responsibility for "representation" should rest on the shoulders of the First Minister and the Deputy First Minister.

I understand the current provision to imply that the appointment of lay members should be used to provide some kind of balance in the membership of the commission. By "balance", I believe that we mean political balance, either this way or that. I beg to move.

Lord Molyneaux of Killead

It has been made abundantly clear—at least it is the accepted wisdom of anyone listening—that none of this is going to happen anyway. Whatever happens in the election—some of us have a fair idea of what a disaster that is going to be—aside from the provision to enable the First Minister and Deputy First Minister to secure as far as possible lay members who taken together represent the community in Northern Ireland, the second part is like saying "God is good". It is not something that we should get excited about, given that the whole subsection and its meaning will be deleted after the Assembly election.

Baroness Scotland of Asthal

I understand that the premise of the noble Lord, Lord Glentoran, on Amendment No. 22 is that there should not be lay members, and if there are lay members, they should not he appointed by the First Minister or the Deputy First Minister. The proposal is that there should he such lay members and an important part of the arrangements is that they should be representative of the community. Therefore, it is important that the First Minister and Deputy First Minister should secure that the lay members are representative of the community.

To do otherwise would run contrary to the review recommendation, which requires the First Minister and Deputy First Minister to secure such representativeness. The review even specified that this should be achieved through legislative provision. That is why we have incorporated it in this way. A representative lay membership on the commission is central to securing public confidence in its procedures. The amendment would undermine the recommendation of the review and the foundation of that public confidence. I invite noble Lords to think again.

Lord Glentoran

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Desai

had given notice of his intention to move Amendment No. 23: Page 3, line 3, after "Minister" insert "and Lord Chief Justice The noble Lord said: I apologise for being out of the Committee for a while. I was testifying before another Committee of your Lordship's House.

[Amendment No. 23 not moved.]

[Amendment No. 24 not moved.]

Lord Shutt of Greetland

moved Amendment No. 25: Page 3, line 4, leave out "representative" and insert "reflective The noble Lord said: The debate is the same as we have had previously about the words "representative" and "reflective".

I do not need to repeat what I said earlier about the word "representative", which has certain connotations in Northern Ireland. I think that "reflective" would be a far better word. I beg to move.

Baroness Scotland of Asthal

We have canvassed this issue. The review drew a clear distinction between the judiciary, which it said should be reflective of the community, and the lay members of the JAC, which it said should be representative. In this context, the word "representative" has been used for numerous public bodies, including the Human Rights Commission and the Parades Commission. "Representative" does not mean that members will represent specific constituent parts of the community, but it means that an element there will represent each part.

We say that it would be preferable to retain the current definition of "representative", because it provides clarity on what we are talking about. Changing the language may cause greater confusion.

Lord Mayhew of Twysden

We cannot deal with the issue now, but when we return to this, will the noble Baroness provide us with the Government's definition of the distinction between "representative of" and "reflective of"? We are trying to achieve the appointment of sensible people in whom the rest of us will have confidence. We cannot legislate for that and say that nobody should be appointed unless they have confidence. The Government are striving for a word.

To distinguish between "representative" and "reflective" and say that one is more serviceable than the other does not hold water. If I hold up a mirror, I get a reflection. If I hold it in the right place, I get a reflection of the Minister, and very nice it is too, but it is an accurate reflection that permits of no flexibility or adjustment. "Representative" has the disadvantages that we have already discussed. If we are to rely on either of these words, will the Minister tell us what each of them is intended to mean and why one is better or worse than the other?

Baroness Scotland of Asthal

I am inclined to say—I speak entirely for myself at the moment—that "reflective" and "representative" are absolutely interchangeable. The review separated the two out. It used "reflective" in relation to the judiciary probably because it would be anathema to suggest that judges would represent certain parts of the community. Because of the confusion in that regard, I judge that it is likely that it used "reflective" and is more comfortable in relating to "reflective" than to "representative".

The reason why "representative" is preferred is because that word has been used elsewhere and become a term of art. If we now start introducing a different term, there is likely to be a semantic debate about when something is reflective or representative. In view of our earlier discussion, I understand why we were talking of the judiciary being reflective of a community—that is a more sensitive word to use when describing where a judicial officer may come from but not what he will in fact do. We say that "representative" should remain because there is a degree of clarity about the way in which that word has been interpreted and we would like to avoid semantics if at all possible.

Lord Smith of Clifton

Semantics is largely what Northern Ireland is all about! Moreover, "representative" across the Irish Sea means something rather different from what it means in Great Britain.

I would like to speak to Amendments Nos. 26 and 27, which are similar although there is a slight difference. The amendment standing in my name adds "and ethnicity" whereas that standing in the name of the noble Lord, Lord Rogan, says "and religion". While we agree on the inclusion of "agenda" in this context, it is important to remind people—not just those appointing the lay members—that there is much more to Northern Irish society than religious groupings. It is all too easy to leave out significant sections of the population. While it is good that we and the Ulster Unionist Party agree that lay members should be reflected in terms of gender, we would not agree to the addition of the word "religion" because the whole point of the amendment we are putting forward is to demonstrate that there is more to Northern Irish society than religion.

Baroness Scotland of Asthal

The noble Lord rightly highlights the distinction between Amendments No. 26 and 27. The review recommended a provision similar to that used by the Human Rights Commission; that is what the Government have implemented in the Bill. The Government have always been clear that representativeness covered all of those issues, although there is a limit to how much can be achieved by a group of only five people. The comments that I made earlier about "representative" being an inclusive term relate directly to this amendment as well.

Lord Rogan

On reflection, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

6 p.m.

Lord Rogan

moved Amendment No. 28: Page 3, line 4, at end insert— (8) In appointing persons to be lay members, the First Minister and deputy First Minister must so as far as possible secure that the lay members have a sophisticated understanding of legal issues as well as proven experience in selection procedure. The noble Lord said: I was hoping that the noble Lord, Lord Maginnis— the sophisticated Lord Maginnis—would move the amendment but unfortunately he is not here.

I am struggling to put into words what we mean when we say "sophisticated understanding" and "proven experience", although "proven experience" of selection procedure is easier. Patently, those lay persons need to have some understanding of legal matters and of the kind of persons over whom they are sitting in judgment. The amendment simply seeks to highlight the necessity for that kind of person to be chosen. I beg to move.

Lord Glentoran

In that regard, who would be the judge?

Baroness Scotland of Asthal

That demands a sophistication of understanding. That begs a very large question indeed!

The importance of having a lay element is to bring into the equation those who do not necessarily have an in-depth understanding of legal issues but who bring different perspectives. In the appointment procedures that are adopted in many other fields, many eminent people are invited to become lay members who do not have an expertise in that field but they are able to ask some fundamental questions, such as, "Why?". Those of us who have been subject to that piercing, "Why?" have often found it a salutary question to be asked. Therefore, we believe that lay members who do not have a particular expertise have a valuable contribution to make. How much lay members can contribute was graphically demonstrated in an earlier interchange, when the noble and learned Lord, Lord Mayhew, and I were in total union on a point; the noble Lord who moved the amendment could well have benefited from a lay member's input.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Schedule 2 [Judicial Appointments Commission]:

Lord Rogan

moved Amendment No. 29: Page 72, line 22, leave out "may" and insert "must The noble Lord said: In moving Amendment No. 29, I shall speak also to Amendment No. 30.

Amendment No. 29 removes the discretion of the First Minister and the Deputy First Minister to terminate a judicial appointee's membership on the recommendation of the Lord Chief Justice. The issue is whether the Lord Chief Justice should make a recommendation to terminate or whether it would be inappropriate to do so.

This matter involves an issue that we shall discuss in more detail when we consider acting jointly. As the Bill is currently drafted, either the First Minister or the Deputy First Minister has a veto on removal even if the Lord Chief Justice recommends that removal action should be taken. That is plainly ludicrous.

Amendment No. 30 makes a similar change in respect of lay members. In particular, I am concerned with paragraph 2(4)(b), which is the criminal offence clause. As the Bill stands, either the First Minister or the Deputy First Minister may veto the removal of a person who has been convicted of a serious offence. I do not believe that that is what was intended.

Further, questions arise in relation to the provision in paragraph 2(4)(a) relating to a person "without reasonable excuse". If such a person has, failed to exercise his functions for a … period", should he he permitted to stay? Again, there is a de facto veto by the First Minister or Deputy First Minister. I beg to move.

Baroness Scotland of Asthal

As the noble Lord indicated, Amendments Nos. 29 and 30 seek to remove any discretion from the First and Deputy First Ministers in the case of dismissing lay or judicial members of the Judicial Appointments Commission.

With regard to judicial members, the Bill provides that the First Minister and the Deputy First Minister may remove a member on the recommendation of the Lord Chief Justice. With regard to lay members, the Bill provides for a dismissal in certain cases. Government policy is clear. In these cases we would expect the First Minister and Deputy First Minister to act, but we need to trust them and not to tie their hands by compelling them to dismiss a member automatically.

There are a number of reasons for dismissal of lay members, which could differ in their seriousness. For instance, if a lay member had been convicted of a serious offence, no doubt everyone would agree that he or she should no longer be a member of the commission. However, being convicted of a minor driving offence—for instance a defective headlamp— would be unlikely to merit a removal from the commission. We should leave the First Minister and Deputy First Minister some discretion in such matters. I hope that explains why some limited flexibility is necessary in this regard.

Viscount Brookeborough

I support the amendments because retaining the current situation means accepting that perhaps the Lord Chief Justice will be the most extraordinary person who, as a chairman of a committee and holding the post he has, has not good reason for trying to run the commission, and he will only suggest that if the running of that commission is really unworkable. For the First Minister or Deputy First Minister not to support him would be plainly ludicrous and, should the Chief Justice put it forward, I think he must do it.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Baroness Scotland of Asthal

moved Amendment No. 31: Page 74, line 10, leave out from "Commission" to end of line. The noble Baroness said: This is a minor and technical amendment. The words we propose to delete are unnecessary, as the First Minister and Deputy First Minister will only ever be able to acquire money appropriated under the Assembly Act. They crept into the Bill by error, although they of course do no harm.

We are also tabling an amendment to Clause 22, which will make further provision about money being provided by the First Minister and Deputy First Minister. That provision does not repeat the unnecessary words. We therefore think it right and sensible to delete these words in order to ensure that the two provisions dealing with funding by the First Minister and Deputy First Minister are consistent. I beg to move.

On Question, amendment agreed to.

Lord Rogan

moved Amendment No. 32: Page 74, line 33, at end insert— () Committees or sub-committees may not include persons who would not be eligible to be members of the Commission. The noble Lord said: I shall speak to Amendments Nos. 32 and 33. Committees and sub-committees may have the powers of the committee delegated to them, and they do not need to contain members of the superior committee. Therefore, the amendment to exclude convicted criminals would have no effect unless the same restriction applied to members of these sub-committees. We have heard numerous arguments—I will not allude to them again—why we do not want to have criminals holding judicial office or appointing persons to judicial offices.

Amendment No. 33 is aimed at curtailing the rather extensive powers to delegate by the commission. It seems extraordinary to me that sub-committees made up of non-members may in effect circumvent the appointments commission. What is the purpose of the commission if its members may be uninvolved in selection? Who would be involved in that selection? I beg to move.

Lord Glentoran

I rise to support the amendment moved by the noble Lord, Lord Rogan, and to speak to Amendment No. 34, tabled in my name. I am puzzled as to why the Government feel the need to give any delegation authority to the commission. It does not have a particularly big task; not that many judges and people are to be appointed. We have demonstrated our concern about the members of the commission in our debates this afternoon.

If those debates, and whatever ultimately is legislated for in this Bill, can be thrown over by the Commission, by dint of the authority to delegate functions conferred on it by this Schedule, I wonder what the Government are doing. I had not given this matter sufficient thought ahead of our deliberations, but I am extremely concerned about the whole matter of delegation. I shall return to it on Report.

Turning to Amendment No. 34, I can see no logic at all in Clause 12 and I do not understand what it is doing in the Bill. Why is there a duty to have a lay member of a committee or sub-committee, but no parallel duty to have a judicial member, or someone who is eligible to be a member? Frankly, and with due respect to the department and the draftsman, I think that Clauses 11 and 12—clause 12 in particular—are a nonsense. They should not be a part of the Bill because there is no need for them. I shall be interested in the Minister's explanation as to why Clause 12 is so worded and what it is intended to mean.

Baroness O'Cathain

As a matter of clarification, what do these sub-committees do?

Baroness Scotland of Asthal

The provision to provide the sub-committees is permissive; it does not demand that such sub-committees should be set up. It is important to note that the system will not deal simply with a small number of judicial appointments. It will also deal with the appointment of tribunal and other chairmen; those are quasi-judicial tribunals. Therefore if we are seeking to construct a system which, in due course, will undertake the appointment of the whole of the judicial system below the level of High Court judge, then we have to build in a degree of flexibility to enable the commission, if it so chooses, to establish committees or sub-committees to deal with specific issues.

It also enables specialists in matters of employment, appointments or other specialist provisions, to be invited on to the Judicial Appointments Commission in order to help them by giving advice in relation to a specialist area. That will not necessarily be drawn upon, but it creates a capacity for them so to do. The Bill provides a permissive provision that the commission may establish committees or subcommittees which may include persons who are not members of the commission.

The Bill also states that where committees deal with appointments, they must include a member of the commission and, unless the person is a lay member, a person who is eligible to be a lay member as well. This latter amendment was made in the light of Members' views that it was appropriate for there to be a member of the commission on all committees dealing with appointments.

Amendment No. 32 appears to go considerably further in that it requires committees of the Judicial Appointments Commission to operate the same membership criteria as that of the full commission. In practice, however, the only persons who would be prevented from membership of committees would seem to be retired judges, barristers or solicitors. I am not sure why such lengths have been pursued to achieve that aim. Given that we have already sought to put in place an appropriate relationship between the full commission and its committees, I would invite noble Lords to consider that the amendments should be withdrawn because they are not necessary.

Perhaps I may turn to Amendment No. 33. The amendment would prevent the commission from delegating any of its functions, unless approved by the majority of the judicial members of the Commission". Other amendments sought to increase the judicial membership of the commission and, in this amendment, noble Lords are, perhaps, displaying a similar wariness about the role played by lay members. I do not want to go back to the review, but it is important to remember that the review went into some detail in striking the right balance between lay and judicial members of the commission and was clear about the benefit that lay people could bring to the appointments process. Those benefits apply across all the functions of the commission, and we are not convinced that lay members should play a lesser role in deciding what functions the commission should delegate. I ask that this amendment should also be withdrawn.

We are a little surprised that noble Lords should seek to remove paragraph 12 with Amendment No. 34. In Committee in another place, honourable Members expressed concern about the fact that sub-committees of the Judicial Appointments Commission could be made up entirely of persons who were not members of the commission. We sought to address that issue. The schedule was originally drafted without a requirement for commission members to sit on committees and subcommittees, as it was felt that that could be an unfair imposition on their time. We are now in a better position to assess the likely workload of the commission and accept that the degree of flexibility envisaged in the original drafting may not now be required. As a result, we took on board the view of the other place and amended paragraph 12 to make it clear that, when the commission delegated the power to select or recommend a person for appointment to a committee or sub-committee, such committees must always include a member of the commission, unless he or she is a lay member or a person eligible to be a lay member.

In many selection processes, sub-committees do the first sift, and the full committee or commission makes the decision. We hope that there will be a large number of applications to the commission for the posts, that there will be a deal of competition and that it will not be just a narrow selection process. If that happens—particularly as a result of the work that we hope that the commission will do on outreach to make sure that there is gender and community balance—it may be that the working practices of the commission will demand that certain sifting and certain preliminary work is undertaken by committees, as opposed to the full commission sitting together. It was only for that reason that we felt it might be necessary. If we consider the appointment of tribunal chairpersons and all the more minor—that is not meant to be derogatory—judicial appointments, we can see that there will be a considerable body of work for the commission.

Lord Glentoran

I thank the Minister for that explanation. I shall not press my amendment.

Lord Rogan

I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 to 38 not moved.]

6.15 p.m.

Lord Glentoran

moved Amendment No. 39: Page 75, line 38, leave out paragraph 18. The noble Lord said: The amendment concerns the principle of devolution. If judicial appointments and the whole judicial system are to be devolved to Northern Ireland, it is consistent that members of the Legislative Assembly should not have a role on the Judicial Appointments Commission. When those functions have been devolved by this Parliament, the Assembly will have a role in exercising them through its direct election of the First Minister and Deputy First Minister. However, it strikes me as slightly odd that a Member of the House of Commons should be disqualified from serving on the Judicial Appointments Commission. I beg to move.

Baroness Scotland of Asthal

Of course, I hear what the noble Lord says about it being odd, but we respectfully suggest that it would be rather odd if MPs were to sit. The amendment would allow members of the Judicial Appointments Commission to sit as MPs, which is unprecedented for lay members of public bodies. Furthermore, of all the areas to bring into politics, the judicial appointments process looks one of the least likely. Of course, we appreciate the view articulated in another place that once we devolve justice matters to Stormont, there is no conflict of interest for Westminster MPs, but we must respectfully say that we do not agree.

The review states specifically that there is a greater need than ever to insulate the appointments process from any possible suspicion of political influence. Creating an independent Judicial Appointments Commission is one way of doing that. The amendment would remove the independence that the review sought to create, leading to all sorts of potential forms of political mischief and questionable appointments. I am sad to disagree with the noble Lord on this matter.

Lord Glentoran

I thank the noble Baroness and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2, as amended, agreed to.

Clause 4 [Appointment to most senior judicial offices]:

Lord Rogan

moved Amendment No. 40: Page 3, line 20, leave out "First Minister and deputy First Minister" and insert "Lord Chancellor The noble Lord said: I will speak to Amendments Nos. 40, 41, 44, 45, 46 and 47. These amendments come to the nub of the unease that we feel about aspects of the Bill. This whole aspect of Clause 4 is concerned with the appointment of the most senior judicial officers, including the judges of the High Court, which we debated at length earlier. The amendments would remove the role for the First Minister and Deputy First Minister in the appointments procedure either as consultees or as persons making recommendations.

As has been mentioned several times this evening, there is a real concern in Northern Ireland about the politicisation of the judicial appointments process. It seems excessive and unnecessary for the First Minister and Deputy First Minister to make a recommendation to the Prime Minister. What real advice could those politicians provide to the Prime Minister on appointing the Lord Chief Justice or Lord Justice of Appeal, other than their perceived political opinion or religious background? Given the numerous legal challenges to decisions made in the light of the agreement already, including the First Minister and Deputy First Minister in the process of selection poses obvious problems.

The review said: In the Northern Ireland context it is important to keep any hint of political input out of the appointments process. Devolution does not necessitate the devolution of the judicial appointments process. One does not follow the other. Devolution relates to the legislature, the Executive and the Government, which is quite a separate branch of the state.

Again I refer to subsection (5), which provides that the First Minister and Deputy First Minister must act jointly in making their recommendations. That provides either of those two MLAs with a power of veto over any individual appointment.

The Belfast agreement itself does not indicate or dictate that all decisions that are to be made by the First Minister and Deputy First Minister must he joint ones. Such language crept in and was the creation of the draftsmen of the Northern Ireland Act.

Our proposition involves opposition to the devolution of judicial appointment functions, as distinct from the functions of criminal justice to which we look forward.

Baroness Scotland of Asthal

I hope that Members of the Committee are content with taking this rather large group of amendments together; I thank them for so doing. Overall, the effect seems to be turn over the roles of the First Minister and the Deputy First Ministers in the process of appointing judges to the Lord Chancellor. In the Bill, the First Minister and Deputy First Minister have the role recommended for them in the review, which recognised the importance of a carefully managed degree of political accountability. The importance of the role was discussed at length in another place. In the devolved scenario, the Government feel that we must give the First Minister and Deputy First Minister in Belfast the same trust that we extend to the Lord Chancellor in Westminster.

I am sure that Members of the Committee agree that devolving justice matters, including judicial appointments, to the Northern Ireland Assembly would be a positive and welcome development, which would help to underpin the stability of that institution.

Amendment No. 41 seeks to remove the duty to consult the Lord Chief Justice in making senior judicial appointments. If I may respectfully say so, that seems odd. As the senior judicial figure in Northern Ireland, the Lord Chief Justice is bound to have a valuable insight into the candidates. It would surely be unheard of for him not to be consulted. We seek to be transparent about his role by placing it in the Bill.

We invite the noble Lord to consider withdrawing the amendment because it will do violence to the import of what we seek to do in terms of devolving appropriate responsibilities to the First Minister and First Deputy Minister.

Lord Glentoran

A few weeks ago, when I started working on this matter, I went through the same process as did the noble Lord, Lord Rogan, and his Ulster Unionist colleagues, and I considered tabling similar amendments. However, I later came to the conclusion that if we were to devolve, we had to do so. I scratched out those amendments and never tabled them.

I am afraid that I am now going to be party political. The fact that the amendments have been tabled by the Ulster Unionist Party and the fact that a considerable number of those amendments are of significant import, shows the confidence—or lack of confidence—in the Government's handling of the Northern Ireland situation and the peace agreement. Steadily over the past few years, the Government have lost the confidence of the Unionist party. I hope and believe that they realise that and I hope that they will attempt to find ways of recovering it—perhaps they have been doing so during the past few months. I hope hat the noble Lord, Lord Rogan, and his colleagues will forgive me, but this is a clear demonstration of where we are in that regard.

Lord Mayhew of Twysden

I hope that the Minister will acknowledge that there is an important distinction between the appointing Minister in the present situation—the Lord Chancellor—and the appointing Ministers under what is proposed by the Bill.

The Lord Chancellor wears three hats as we know. In his capacity as minister for justice, he is required to separate himself entirely from partisan considerations. By reason of his background—not to mention the momentum of many centuries of precedent—he has the training to do that. It is asking a great deal more of politicians, who will become the First Minister and the Deputy First Minister, to take that on. That is why I understand what lies behind these amendments and why I hope that the Minister will express some sympathy with them, particularly in light of the significance that is attached in the review to the overriding importance of avoiding any imputation of political taint or bias in this procedure.

If one has experience of the Northern Ireland scene, it is all too easy to foresee that some quarters in Northern Ireland will perceive it to be an impossible task for the First Minister and the Deputy First Minister to be able to achieve that separation from partisan concerns. That is what lies behind the proposal, with which I have a good deal of sympathy. I have just enough enthusiasm for demonstrating confidence in the whole process to go along with what is proposed in this regard but I hope that the Minister will acknowledge that there is an important distinction to be made between the two sets of Ministers. That is what gives rise to the anxiety that lies behind the amendments.

6.30 p.m.

Baroness Scotland of Asthal

I say to the noble and learned Lord, Lord Mayhew, that we recognise those sensitivities and the anxiety. It would be easy to say that the Lord Chancellor should simply retain the responsibility that he currently has and that there should be no change. One sees the temptation in that argument.

We face a challenging choice about whether or not to put confidence in the devolution process. We have to resist an understandable temptation to take a path that would not enable the process to be successful; I know that all Members of the Committee desire that very much.

Therefore, the position that the First Minister and Deputy First Minister will be put in is significantly different from that which the Lord Chancellor enjoys in relation to England and Wales. It is for that reason that we believe that it is important that the role of the Lord Chief Justice should be transparent, open and clearly stated, and that the commission should play a role in the appointment process. Members of the Committee will know that that is a clear difference between what is proposed for Northern Ireland and what is proposed to be retained in England and Wales.

The future, of course, has to be provided for. We believe that the balance of the Bill, as currently framed, provides that safety net which enables the political responsibility to be exercised judiciously by the First Minister and the Deputy First Minister. Appropriate safeguards are provided elsewhere by the commission and the Lord Chief Justice. I invite the noble Lord to withdraw the amendment.

Lord Molyneaux of Killead

I very well remember the period when the legislature was broadly under the remit and influence of Stormont. I was serving at that time as a magistrate. There was a general perception on both sides of the community that the judiciary at all levels was somehow or other manipulated by the Unionist government. We did our best to point out that that was not really the case, but it was difficult entirely to refute the allegation that, even at my humble level, I was not somehow or other under pressure. It may horrify some of my former colleagues if I say that there was a degree of subtle pressure, which I resisted all along. I simply said, "I am sorry. I am not responsible to you. I was appointed by the Lord Chancellor". That made me unpopular.

The problem was that, rightly or wrongly, there built up a kind of perception, belief or understanding—or misunderstanding—that the operation of the judiciary was under the control of the then Stormont Government. It was one of the main causes of the downfall of Stormont. I would not want to see that happen again. I was taught a lesson in that period and would not willingly advocate or support the return of judicial functions to any Northern Ireland politician, whether at Stormont or Westminster.

Lord Desai

What is desirable about the proposition is that two people—the First Minister and the Deputy First Minister—whom no one expects to agree must take part in the procedure. That is the double-lock system that satisfies me, at least, that it may be a bipartisan process, rather than simply a partisan process.

Someone said earlier that Ian Paisley and Gerry Adams would never agree on anything. What if they did? This way, we can be sure that, if politics plays a part in the procedure, it will do so across party lines. The fear is that a single party will dominate, rather than that there will be agreement across parties. That is why there is something to be said for the double-lock of involving the First Minister and the Deputy First Minister.

Lord Smith of Clifton

In speaking to the amendment. I must say that it is clear that the process in Northern Ireland is fragile. One is either an optimist or a pessimist. If the process is to carry on, one must be an optimist—almost against the odds. Therefore, I agree with what was said by the noble Lords, Lord Desai and Lord Glentoran, by the noble and learned Lord, Lord Mayhew of Twysden—who is aware of the sensitivities—and by the Minister.

We cannot have partial devolution. There can be no clawing back. We must move forward, and that is why I oppose the amendment.

Baroness Scotland of Asthal

I thank the noble Lords who have participated in the debate. I remind them that we have the security that the Judicial Appointments Commission will make the recommendation to the First Minister and the Deputy First Minister. If they cannot agree, the second recommendation by the commission is binding on the First Minister and the Deputy First Minister. An opportunity is given for an agreement, but, in the event of no agreement, the commission's second recommendation becomes binding. I hope that that reminder will give some comfort.

Lord Molyneaux of Killead

It has been said that there is an onus on all of us in Northern Ireland to move forward. I agree with that entirely. However, on this issue, we are not moving forward; we are going back 50 years.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Lord Desai

moved Amendment No. 42: Page 3, line 23, at end insert ", and (c) the Judicial Appointments Commission The noble Lord said: This amendment goes the other way. Basically, it makes sure of things, like a belt and suspenders. Although it is true that the Judicial Appointments Commission will recommend to the First Minister and Deputy First Minister, the amendment asks for a separate and independent role for the Judicial Appointments Commission to be consulted by the Prime Minister. Basically, this is another cautionary provision to be added to the process. I beg to move.

Baroness Scotland of Asthal

As my noble friend Lord Desai has said, Amendment No. 42 seeks to place a duty on the Prime Minister when making recommendations to the Queen on appointments to the office of Lord Chief Justice or Lord Justice of Appeal to consult with the Judicial Appointments Commission, in addition to the First and Deputy First Ministers and Lord Chief Justice. Earlier in Committee we covered in detail the reasons why there should be a distinction between those appointments made up to the level of the High Court and those made above.

The review made it clear that the commission's direct involvement in appointments should cease at the level of High Court judge. The review further recommended that it would be appropriate to retain a role for Westminster in the appointment of the most senior judicial officers. The Government agreed with the rationale proposed by the review, as well as with the proposal. The Bill adheres faithfully to those recommendations.

As I mentioned earlier in my remarks, the arrangements also reflect the procedures for such appointments in the devolved administration in Scotland. However, the Bill does provide a role for the Judicial Appointments Commission. It will be consulted on the procedures to be adopted when making recommendations at the most senior level. We are satisfied that this will ensure that best practice on appointment procedures at this judicial level will be observed, while making sure that we are implementing the review recommendation in full. I hope that that explanation will satisfy my noble friend that we have addressed this issue.

Lord Desai

I am grateful to my noble friend for that clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Glentoran

moved Amendment No. 43: Page 3, line 24, leave out subsection (4). The noble Lord said: In speaking to Amendment No. 43, I should like to speak also to Amendments Nos. 48 and 49. Amendments Nos. 43 and 49 come together under a general, collective description; we feel that the provisions are all too cumbersome. These amendments would strike out new Section 12(4) and (5) of the 1978 Act so as to remove the duty on the First Minister and Deputy First Minister to determine the procedure—as yet unknown—that they are to adopt for the consultation process.

The appointment will be made by the Queen. We believe that it is far too prescriptive to place a duty on the Prime Minister to consult and then to tell the Judicial Appointments Commission to advise the consultees on the procedure to adopt. That is extremely prescriptive and cumbersome and we feel that there is room for considerable improvement. This is a probing amendment and seeks to make suggestions.

Amendment No. 48—tabled on the assumption that the clause is not removed by the Government, but may be improved to a considerable extent—seeks to involve the government of Northern Ireland; namely, subject to the approval of the Assembly". That is, I believe, a reasonable insertion at the end of line 28. I beg to move.

Baroness Scotland of Asthal

The review specifically recommended that the commission should be involved in the procedure, which is in line with international best practice. The Bill as drafted accurately reflects the role described by the review. It is consistent with what should be expected. Amendment No. 48 proposes that the First Minister and Deputy First Minister should clear the procedures for making senior judicial appointments with the Assembly. Given that the First Minister and Deputy First Minister are the head of the Northern Ireland Executive and represent the major parties in the Assembly, this would be an unnecessary procedure. It would be unusual in Westminster terms and we see no reason why it is needed in Belfast either. We invite the noble Lords not to press those three amendments.

Lord Glentoran

I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 44 to 56 not moved.]

Clause 4 agreed to.

Clause 5 [Appointment to listed judicial offices]:

6.45 p.m.

Lord Rogan

moved Amendment No. 57: Page 3, line 42, leave out subsection (1). The noble Lord said: I shall speak also to Amendments Nos. 58 to 65. Clause 5 makes provision for the appointment of the listed judicial officers by virtue of the Judicial Appointments Commission making recommendations to the First Minister and Deputy First Minister. Schedule 3 is concerned with the transfer of functions in respect of these appointments from the Lord Chancellor to the First Minister and Deputy First Minister. As I have said before, that does not have to take place as part of the process of devolution or the devolution of the criminal justice functions.

The judicial appointments functions are and should remain quite separate. Further to that, there is the consequence of the perceived politicisation of the appointments process. I submit that Clause 5 is flawed. The point at which the selection process for listed judicial officers is initiated is governed by Clause 5(3), by the First Minister and Deputy First Minister acting jointly in serving notice on the commission to select a person for a vacancy. It is not inconceivable that the First Minister and Deputy First Minister will in future exercise a de facto veto over the process. Think for a moment of the consequences of Northern Ireland being short of one or even two High Court judges and no appointment or appointments being made.

When this matter was debated in another place, the Government said that they were not planning for failure in relation to this obvious potential problem. Frankly, that is an inadequate response. I beg to move.

Baroness Scotland of Asthal

I think I have already spoken to this amendment, which was grouped together with Amendment No. 40. The answers I gave before remain the same.

Lord Molyneaux of Killead

Perhaps I might come to the rescue of my colleague.

Lord Rogan

Please do.

Lord Molyneaux of Killead

He sought my advice and I advised him not to indulge in moving his other amendments, because they were to Clause 5, not to Clause 4. If I was incorrect, I plead guilty.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 to 65 not moved.]

Clause 5 agreed to.

Lord Desai

moved Amendment No. 66: After Clause 5, insert the following new clause—

"CRITERIA FOR JUDICIAL APPOINTMENT

THOSE RESPONSIBLE FOR JUDICIAL APPOINTMENTS UNDER SECTIONS 4 AND 5 SHALL HAVE REGARD TO THE FOLLOWING FACTORS WHEN MAKING APPOINTMENTS—

1. (a) legal knowledge and expertise,
2. (b) intellectual and analytical ability,
3. (c) decisiveness,
4. (d) communication skills,
5. (e) authority,
6. (f) integrity,
7. (g) fairness,
8. (h) understanding of people and society,
9. (i) maturity and sound judgement,
10. (j) courtesy and humanity,
11. (k) commitment to public service, and
12. (l) understanding of and commitment to human rights principles."

The noble Lord said: This new clause sets out the criteria for judicial appointment which should be used by the commission. It reflects more or less what was said by the review in paragraph 6.20, with the addition only of the last criterion, understanding of and commitment to human rights principles". These are obvious and good criteria to adopt. I beg to move.

Baroness Scotland of Asthal

The Government do not take issue with the criteria specified. Indeed, my noble friend Lord Desai is right to say that largely they reflect the criteria listed in paragraph 6.20 of the review as being the typical selection criteria which are currently applied.

However, the review did not recommend that these criteria should be made statutory, presumably for the good reason that such matters are normally dealt with administratively. We believe that they should continue to be dealt with in that way. Including these criteria in statute would remove the element of flexibility which is essential to the successful operation of any appointments procedure.

However, I repeat that my noble friend Lord Desai is quite right; these are precisely the skills and abilities that we seek to have inculcated into our judiciary.

Baroness O'Cathain

I could agree with the amendment, but if a list of this kind is put on the face of the Bill, someone will seek to include a stupid criterion, such as having blue eyes instead of green eyes. That may seem ridiculous, but it is my experience that noble Lords try to remove anything of this nature from the face of a Bill. That is absolutely right because to include it would be silly. It would not allow the flexibility necessary for people making judgments. Furthermore, there could be other essential qualities which might crop up and which would not be covered.

Lord Desai

I thank my noble friend and the noble Baroness for their interventions. In my view, I am sure that both of them would satisfy all these criteria.

Lord Dubs

And more.

Lord Desai

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Appointment to listed judicial offices]:

Lord Williams of Mostyn

moved Amendment No. 67: Page 82, line 30, leave out sub-paragraphs (2) and (3) and insert— (2) In subsection (2), after "2(2)(b)" insert "or 9(4)". (3) In subsection (4), omit "9(4),". The noble Lord said: This is a purely technical and consequential amendment. The report of the Delegated Powers and Deregulation Committee accepted that 16 powers to amend the Bill or other legislation were appropriate. The Committee, however, recommended four changes in favour of the affirmative procedure. As always, I am grateful for the sterling work which is carried out by the committee. It has almost become the norm that we pay careful attention to its recommendations.

Government Amendment No. 250—as it will become—to Clause 89 will bring about the changes that were recommended. This means the introduction of a new Clause 89. As a result, this paragraph of Schedule 3, which referred to Clause 89, has been amended. I stress that it is purely to accept a protective recommendation by the relevant committee. I beg to move.

On Question, amendment agreed to.

On Question, Whether Schedule 3 shall stand part of the Bill?

Lord Rogan

On behalf of my noble friends Lord Maginnis of Drumglass, Lord Laird and Lord Kilclooney, I give notice that it is our intention to oppose the Question that Schedule 3 shall be the third schedule to the Bill?

Lord Glentoran

I did not fully understand the question put by the noble Lord, Lord Rogan. Did I understand him to have put the Question that Schedule 3 shall not stand part of the Bill?

Lord Williams of mostyn

the noble lord Rogan Was attempting to assist us by indicating that on Report —though not at this stage—he will raise his Question on Schedule 3.

Schedule 3, as amended, agreed to.

Clause 6 [Removal from most senior judicial offices]:

[Amendments Nos 68 to 72 not moved.]

Lord Glentoran

moved Amendment No. 73: Page 5, line 28, after "office" insert "for a maximum of three months The noble Lord said: The amendment concerns the potential happenings should the Lord Chief Justice be suspended. As I understand the Bill, if the tribunal recommends that the Lord Chief Justice should be suspended, he could be suspended and parked for the rest of his life without anything further happening. The purpose of my amendment is to ensure that, were a tribunal to recommend the suspension of the Lord Chief Justice, somebody would have to do something about it within three months. I beg to move.

Baroness Scotland of Asthal

Clause 6 provides for the removal of judges from the most senior judicial offices. Amendment No. 73 would place a time limit of three months on the suspension of the Lord Chief Justice while the Prime Minister and the Lord Chancellor consider making motions for the presentation of an address to Her Majesty for his removal.

We expect action under this clause to be extremely rare. If it were ever taken, we hope it would be over quickly, but we cannot know for sure how much time a tribunal might take to report. For this reason, I urge the noble Lord to withdraw the amendment.

Lord Mayhew of Twysden

I support the amendment. Of course, it is virtually inconceivable that the provision will ever be acted upon, but if it is, everybody concerned will jolly well have to get on with it. It is essential that confidence be restored to the administration in those circumstances. In my view, which I respectfully urge on my colleagues, three months is a reasonable limit to impose and to ensure that people do not put this in some pigeonhole totally inappropriately in such desperate circumstances.

Baroness Scotland of Asthal

Of course I hear what the noble and learned Lord says, but one can think of many scenarios that would involve adherence to the human rights provisions which would enable one to say that a longer period may be necessary. For example, if the judge were accused of a most heinous offence, such as paedophilia, it may be of the utmost importance that he or she be removed swiftly, but the investigation of those issues may well require longer than three months.

We know that if such circumstances arose, time and speed would be of the essence, but it would be wholly impossible to prescribe that all that should be done in order to meet the obligations under the Human Rights Act could be done within that timetable. Of course it should be done as speedily as reasonably practicable. I fully understand the importance of a decision being made. In the old-fashioned way, many people facing that situation would simply resign without prejudice, and we would not be left in the situation of having to impose time limits. However, it would be foolish in the extreme to prescribe in the Bill a time limit for suspension to which we could not adhere without transgressing other pieces of legislation.

Lord Mayhew of Twysden

I may find that, not for the first time or the last, I have completely misunderstood the point. Surely, a tribunal that has recommended that a motion be presented will not have made that recommendation without having carried out the most scrupulous investigation to secure it. Is that not the case?

7 p.m.

Baroness Scotland of Asthal

As I understand the provision, it enables there to be a suspension. It says: 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; and if they are considering the making of such motions in relation to a Lord Justice of Appeal or a judge of the High Court the Prime Minister may suspend him from office with the agreement of the Lord Chief Justice". The Prime Minister has that ability before hearing the recommendations from the tribunal. The case may relate to bribery and corruption in public office: there is a plethora of possibilities. There are two possible situations. The Prime Minister may wish to suspend, pending receipt of the recommendation. We do not know whether the recommendation will come back within or without a three-month or other period, and it is for that reason that no time has been specified.

Members of the Committee are absolutely right in saying that the need for speed is clear. However, one would have to exercise that discretion in accordance with the law as currently enunciated and take into account the Human Rights Act 1998 and other provisions that may have an impact upon such matters. One knows the consequences of acting to the detriment of an individual who may be accused of the most heinous act. It is right to say that, bearing in mind the unusual nature of the court, it is likely to be only the most dire sort of issues that would cause us to activate the provisions in any event.

Lord Glentoran

I thank the Minister, but I am not satisfied. I do not say that three months is the right prescription in any way, but the Minister made the point herself when she read the clause. It starts with the words "If the Prime Minister". While many other things are happening, the Prime Minister may suspend the Lord Chief Justice. Nobody in our constitutional system can put any pressure on the government of the day to take further action if they choose not to for various reasons. It is not beyond the wit of man to insert some form of phraseology that allows the government of the day to be called to account for their actions, even if it is only to oblige them to come to the House, explain what they are doing and satisfy the system.

Clause 8 as it stands, with no pressure on anybody other than that in the Human Rights Act—goodness knows what might happen to that in years to come—is not good legislation and will not give confidence. I ask the Minister and the noble and learned Lord the Lord Privy Seal, who is working with her, to give the matter further consideration and see whether some redrafting can achieve what we are trying to achieve.

Baroness Scotland of Asthal

We shall certainly take the matter back and consider it. I would of course pray in aid the fact that, as sub-paragraph (8) makes clear, the Prime Minister has the power to suspend from office with the agreement of the Lord Chief Justice. There are already provisions in the Bill for that but we will certainly take the matter away and consider whether there is anything further that we can do to allay the concerns of noble Lords. However, I issue a caution in that regard because of the extreme difficulty that we may find in prescribing precise time limits.

Lord Glentoran

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 74 and 75 not moved.]

Clause 6 agreed to.

Clause 7 [Removal from listed judicial offices]:

[Amendment No. 76 not moved.]

Lord Rogan

moved Amendment No. 77: Page 5, line 43, leave out from second "the" to end of line 44 and insert "Lord Chief Justice The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 78 to 81.

Clause 7 is concerned with the removal of persons from listed judicial offices. As the Bill is currently drafted, that includes the downgraded office of judge of the High Court. The power to remove or suspend, however, is retained by the First Minister and Deputy First Minister, who again act jointly with the approval of the Lord Chief Justice. That provides a measure of protection but it does not protect from the scenario in which the Lord Chief Justice believes a person should be removed. The tribunal, under Clause 8, recommends removal if either the First Minister or Deputy First Minister desires removal. The holder of the office of either the First Minister or Deputy First Minister again has a de facto veto on removal.

The amendments place the power in the hands of the Lord Chancellor on the recommendation of the tribunal, but without parliamentary oversight. That reflects the different status of the listed judicial offices. I beg to move.

Baroness Scotland of Asthal

Amendments Nos. 77 and 79 place the power to remove or suspend a person from a listed judicial office in the hands of the Lord Chief Justice, rather than those of the First Minister and Deputy First Minister. I understand that that amendment is very much in line with the general thrust of the amendments that have been tabled by the noble Lord, Lord Rogan. However, the Bill currently provides for the First Minister and Deputy First Minister to perform that function only on the basis of a recommendation from a judicial tribunal and with the agreement—I stress "with the agreement"—of the Lord Chief Justice. That role reflects the position held by the First Minister in Scotland.

We expect action under the clause to he a rare event. The process of removal from judicial office is very much linked to the process of appointment. The review recommended a role for the First Minister and Deputy First Minister in appointments to provide political accountability, as we said earlier this afternoon. The same holds true for the removal procedure. Amendments Nos. 77 and 79 merely achieve the removal of the element of political accountability that was advocated by the review. Members of the Committee should be reassured that he Bill also provides the safeguard that any removal—I stress that—can take place only on the recommendation of the tribunal and with the agreement of the Lord Chief Justice. We therefore have a safety net in relation to removal.

None the less, we consider it appropriate that the agreement of the Lord Chief Justice, in his capacity as head of the judiciary in Northern Ireland, to the removal of the holder of a listed judicial office, should be sought. We are content that the provisions, as drafted, achieve an appropriate balance. We therefore urge the noble Lord to withdraw the amendment.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 to 81 not moved.]

Clause 7 agreed to.

Clause 8 [Tribunals for considering removal]:

The Deputy Chairman of Committees (Lord Brougham and Vaux)

There is a misprint in Amendment No. 82 on the Marshalled List. The words to be deleted should read: First Minister and deputy First Minister, acting jointly".

Lord Rogan

moved Amendment No. 82: Page 6, line 19, leave out "First Minister and deputy First Minister, acting jointly" and insert "Lord Chancellor The noble Lord said: I shall speak also to Amendments Nos. 84 and 85. Clause 8 deals with tribunals for removal from judicial offices. There are two types of tribunal in terms of composition, the distinction being made below the level of judge of the High Court. It seems somewhat perverse to place High Court judges within listed judicial offices in Clause 7 rather than Clause 8, yet within Clause 8(4) rather than Clause 8(5). Our amendments are consistent with removing the veto of the First Minister and Deputy First Minister.

As the Bill stands, the First Minister and Deputy First Minister must act jointly in convening a tribunal for removing the Lord Chief Justice. Again it is only this office who may convene a tribunal and at no point are they obliged to do so, thus again enabling either the First Minister or Deputy First Minister to stifle the removal process at the outset. I beg to move.

Lord Glentoran

I shall speak to Amendment No. 83, which would simply add, "with the agreement of the Prime Minister" to Clause 8(1). The tribunal to consider the removal of the Lord Chief Justice may be convened by the First Minister and Deputy First Minister. As I understand it, the Prime Minister has considerable input into the appointment of the Lord Chief Justice. It seems to me that he or she should be kept in the loop for the firing of the same Lord Chief Justice.

Lord Desai

It may be helpful if I include my Amendments Nos. 87 to 90, which are on the same clause, because in a sense my worry is exactly the opposite of that of other noble Lords. The committee on the administration of justice drew my attention to the issue. In setting up the tribunal, there is a great dominance of the judicial element, judging itself, more or less. I would like a greater lay element. I am going in the opposite direction to other noble Lords. I want to make sure that these tribunals do not seem like a closed shop judging itself. There should be a greater element of ordinary solicitors and barristers or more of a lay element in deciding these matters. It may be helpful for the Committee to consider all of these amendments together.

Baroness Scotland of Asthal

There may be some misunderstanding as to how the system would operate, so I shall go through my understanding of what the amendments would do and how I think it plays in. It may be important for us to take some of this slowly. Amendment No. 82 would remove the power of the First Minister and Deputy First Minister to convene a tribunal to consider the removal of the Lord Chief Justice and would place that power in the hands of the Lord Chancellor. Amendments Nos. 83 and 86 would alter the procedures for the removal of judges. Amendments Nos. 84 and 85 would remove the role of the First Minister and Deputy First Minister in convening tribunals to consider the removal of any other judicial post holder.

Lord Glentoran

Amendment No. 83 refers to page 6, line 19, which is about, A tribunal to consider the removal of the Lord Chief Justice". The noble Baroness said "judges".

Baroness Scotland of Asthal

Amendments Nos. 83 and 86 would alter the removal of judges. I understand, therefore, that the noble Lord seeks simply to relate this to the Lord Chief Justice.

If we look at how the system will work, as we understand it, the review recommends that, The removal from office of a judge or lay magistrate should only be possible on the basis of a finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour". That is to be found in paragraph 6.136.

By removing the role envisaged for the First Minister and Deputy First Minister from this process, these amendments are directly contrary to the review. They also remove the local political accountability which the review was careful to inject into both the appointment and the removal process.

From other amendments tabled to Clauses 4 and 5, both in this Committee and by others in another place, it is clear that noble Lords are wary of the role to be played by the First Minister and Deputy First Minister in the appointment and removal process. Perhaps noble Lords would prefer these powers to remain in the hands of the Lord Chancellor at Westminster with an equal role for the Lord Chief Justice as a nod to devolution. All the comments that I made earlier about trust and truly taking on board that we are moving forward apply equally here. I have to say that, if we were to move along this line, it would be a backward step.

More important, Amendment No. 83, taken with Clause 8(3), requires the Prime Minister to give his agreement and to be consulted before a tribunal can be convened to consider the removal of the Lord Chief Justice. In addition to that, although the First Minister and Deputy First Minister can convene a tribunal to consider the removal of the Lord Chief Justice in this clause, Clause 6 makes it clear that they cannot in fact remove a Lord Chief Justice on the basis of this tribunal. Only the Prime Minister and the Lord Chancellor can do that under Clause 6 by making a Motion for the presentation of an Address to Her Majesty. Therefore, what the noble Lord seeks is already in place in Clause 6.

I hope that that reassures the noble Lord. While it is sensible for the First Minister and Deputy First Minister to consult the Prime Minister when considering convening a tribunal to remove a senior judge in Northern Ireland, it is unnecessary to require his approval at this stage as well as when a Motion is made, because one would be double-banking it, to use the colloquial expression. As I pointed out earlier, we must have a little faith in the new institution and give every opportunity for devolution to work. I urge the noble Lord to withdraw the amendment.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83 to 90 not moved.]

Clause 8 agreed to.

7.15 p.m.

Clause 9 [Lay magistrates]:

[Amendments Nos. 91 and 92 not moved.]

Lord Rogan

moved Amendment No. 93: Page 8, line I. leave out paragraph (d). The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 95 and 96. Clause 9 relates to the introduction of lay magistrates in Northern Ireland. At the outset, it is worth highlighting the fact that these persons will be appointed by the Lord Chancellor—and the Lord Chancellor alone. However, the First Minister and Deputy First Minister must have a role to play in the appointment, for example, of judges in the High Court.

The three amendments aim to address the weak provisions on eligibility. As the Bill stands, the Lord Chancellor may, by virtue of subsection (4), relegate eligibility.

Amendment No. 93 seeks to remove subsection (5)(d), which suggests that an order may list prescribed offences whereby a person, if convicted, may be ineligible. "Prescribed" in that context, however, by subsection (6) means, "prescribed in the order". That permits an exclusory role for persons convicted of theft but the inclusion of those convicted of terrorist offences.

Amendments Nos. 95 and 96 would replace that provision with a strict prohibition of persons convicted of criminal offences and dictates that persons convicted whilst lay magistrates must be removed. Just as we do not wish to have criminals involved in judicial appointments, we similarly do not wish criminals to be appointed lay magistrates—such persons will have an important role dealing with youth justice and reprimanding offending juveniles. I beg to move.

Baroness Scotland of Asthal

These important amendments deal with the issue of qualification for lay magistrates. Amendment No. 93 seeks to remove from the list of disqualification provision for lay magistrates—which can be waived by the Lord Chancellor—the subsection which states that candidates who have been convicted of a prescribed offence are disqualified.

The review recommended that the criminal justice functions of justices of the peace should be undertaken by a new office of lay magistrate. The Bill accordingly sets out the likely qualification requirements for that post.

Amendment No. 94 seeks to remove the Lord Chancellor's discretion in applying those qualifications. The Lord Chancellor has that discretion in making justice of the peace appointments in England and Wales. If the amendment were agreed to, the Lord Chancellor would not, for example, be able to appoint candidates who depart even in the smallest way from the eligibility criteria. That would exclude a candidate, for example, who lived just five miles beyond the prescribed distance. The Government believe that such flexibility is essential and we therefore hope that the amendment will be withdrawn.

Amendment No. 95 seeks to reinstate the prescribed offence disqualification provision, but it inserts it in a new subsection without the caveat that it may be waived by the Lord Chancellor.

Amendment No. 96 requires the Lord Chancellor to remove a lay magistrate if he is convicted of a criminal offence. The effect of the provisions would be to remove any discretion the Lord Chancellor had to set aside convictions for certain prescribed offences and to decide to appoint such an individual as a lay magistrate anyway.

I understand where the noble Lord is coming from in relation to the amendments. However, we do not think that the Bill is wrong. We think that the right balance has been struck. Lay magistrates play a relatively modest, if important, role in the justice system and it would be regrettable if there were no flexibility to set aside relatively minor criminal convictions if the case for appointing an individual were otherwise overwhelming.

The Leader of the Opposition in the other place noted that just because a person has a past, it does not mean that he cannot play a role in the future. We support that sentiment and disagree with the amendments, which seek to remove that possibility. Members of the Committee said earlier that redemption should not be ruled out. I respectfully agree with that sentiment.

Lord Glentoran

I was interested to hear what the Minister said. It is strange that we have a seriously thought-out prescription—paragraphs (a) to (d) of subsection 5 are seriously prescriptive—but that they can be made as nothing by the Lord Chancellor. The Bill is a serious mixture of over-prescription and under-prescription.

Baroness Scotland of Asthal

We would say that this would be appropriate prescription where the need arose. The functions, which are currently discharged by the Lord Chancellor, would, after devolution, be exercised by the First Minister and Deputy First Minister, as provided for by Schedule 3, paragraphs 40 to 42. That discretion has been judiciously used in the past, and we anticipate that it would be judiciously used in the future.

Lord Mayhew of Twysden

Before we return to the matter, would the Minister consider a slight variation of the amendment with which we are dealing? The purpose of this section of the Bill is to secure public confidence in the justice system. I agree with the Minister's description of the role of lay magistrates as modest but important, and it is plain that there is an important need for subsections 5(a) to (d).

The problem about the reference to "a prescribed offence" in paragraph (d), in which "prescribed" means prescribed in the order, is that it is difficult to draw up a satisfactory list of offences and to prescribe them in an order about which one can be confident that it is sufficiently comprehensive but not too comprehensive.

Would it not be better if paragraph (d) were to read: if he has been convicted of a criminal offence"? We should then leave the words, unless the Lord Chancellor otherwise determines in the case of a particular person", to provide the necessary flexibility". There is an infinite variety of culpabilities in criminal offences, and I know that the Minister recognises that. One may have an offence on the prescribed list that is not particularly culpable and something which is outside the prescribed list which is culpable to a degree warranting exclusion from appointment.

If the Minister sees merit in what I suggest, perhaps she will think about it and adopt the first part of the amendment, relying upon the flexibility conferred by the words, unless the Lord Chancellor otherwise determines in the case of a particular person". Perhaps the Minister will think there is some merit in that.

Baroness Scotland of Asthal

We will certainly consider that. I thank the noble and learned Lord, Lord Mayhew of Twysden, for that suggestion. I would say, in addition, that if someone has committed an offence that is not on the prescribed list, that does not mean that the commission of other offences would not prevent them from being appointed a lay magistrate.

Lord Rogan

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 94 to 97 not moved.]

Clause 9 agreed to.

Lord Williams of Mostyn

This may be a convenient moment for the Committee to adjourn until Thursday at 4 p.m.

The Deputy Chairman of Committees

The Committee stands adjourned until Thursday 13th June at 4 p.m.

The Committee adjourned at twenty-eight minutes past seven o'clock.