Lords Sitting of 1 July 2002

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Special Constables
Lord Campbell of Croyasked Her Majesty's Government:
Whether it is their policy to encourage an increase in the number of special constables.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, special constables are a key element of our police reform agenda. We are working on a package of measures designed to help reverse the decline in numbers by improving the way in which they are recruited, managed and deployed. We are particularly keen to improve liaison with employers. After all, Specials bring a wealth of training and experience to their wider workplace. By the end of this year we shall publish guidance on good practice and we have set aside £300,000 to help "Specials champions" drive forward initiatives to improve the recruitment and retention of Specials.
Lord Campbell of Croy: My Lords, I am grateful to the noble and learned Lord for his reply. Are the Government concerned about reports of fewer candidates volunteering to become Specials? If that is correct, are the Government doing their best to reverse the situation?
Lord Falconer of Thoroton: Yes, my Lords, we are concerned about that. As I made clear in my Answer, we would like to reverse the decline. I am happy to say that my right honourable friend Mr John Denham
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announced, at the annual Ferrers award, that the Government are working on a package of measures. I am sorry to see that the noble Earl, Lord Ferrers, is not in his place. When at the Home Office, the noble Earl instituted a special award for special constables. At the presentation of that award on 18th June my right honourable friend announced the package of measures that I laid out in my Answer, which seek to reverse the decline, to encourage people to apply to be special constables and to encourage them to stay as special constables. We regard that as very important.
Baroness Harris of Richmond: My Lords, is the Minister saying that the campaign, which was launched on 2nd January by the Minister, John Denham, and which cost half a million pounds, has not proved to be successful? What response has there been to those proposals?
Lord Falconer of Thoroton: My Lords, I am not saying that the campaign has not been successful. However, a sustained campaign is required to indicate the Government's commitment to special constables, and a sustained process is required by which the merits of being a special constable are brought to people's attention so that we can indicate to the public at large that we want people to take up such places. I cannot give the noble Baroness the precise results of the campaign, but I shall write to her.
Lord Mackenzie of Framwellgate: My Lords, is my noble and learned friend aware—I would be very surprised if he is—that when I was a young constable I was violently assaulted on Tyneside and knocked to the ground? A bus driver came to my rescue who, I was delighted to discover, was a special constable. That illustrates the importance of the Special Constabulary. I remind the House that not so many years ago Special Constable Glen Goodman lost his life to the IRA in

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the course of his duty. Does my noble and learned friend agree that we should all pay tribute to the work of special constables?
Lord Falconer of Thoroton: My Lords, I entirely agree with the sentiments behind my noble friend's remarks. I was not aware of the assault on him but I was aware of the sacrifice of Special Constable Goodman in Northern Ireland. The role that special constables play is second to none. For that reason we are very keen to encourage recruitment and retention.
Baroness Sharples: My Lords, what is the age group of special constables?
Lord Falconer of Thoroton: My Lords, I am afraid that I cannot answer that question. I shall write to the noble Baroness.
Baroness Anelay of St Johns: My Lords, I, too, recognise the valuable part played by special constables. I am grateful to my noble friend for raising the issue. The Minister has referred to a package of measures that the Government hope will address the fact that since 1997 the number of special constables across London has dropped by 51 per cent and across England and Wales by 37 per cent. The police believe that one of the main reasons for that fall is that there has been so much micro-management from Whitehall. Will the Government now agree to undo some of the extra bureaucracy that they have loaded onto the police force in general?
Lord Falconer of Thoroton: My Lords, having looked at the figures, the noble Baroness will be aware that the total number of special constables has decreased from 19,000 in December 1992 to 12,000 in September 2001. A number of reasons are given for that decline. One is the profile of special constables and another is that significant numbers of special constables want to join the full-time constabulary. A variety of reasons have led to this situation. The critical point to make clear is that we support special constables, we want to see more of them and we are taking steps to achieve that.
Lord Skelmersdale: My Lords, when special constables retire, for whatever reason, are exit interviews held? If not, perhaps such interviews would give the answer to the conundrum that the noble and learned Lord has enunciated.
Lord Falconer of Thoroton: My Lords, I am not aware of whether or not there are exit interviews and, if so, what they show. Steps have been taken to try to find out why the numbers have gone down. There appear to be a variety of reasons and, as I say, the answers are inconclusive. Again, I make it clear that we support the special constables and want to see more of them.
Lord McNally: My Lords, can the Minister say whether recruitment from ethnic minorities into the
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Special Constabulary is part of this campaign? If so, does he see that as a stepping stone into recruiting more people from the ethnic minorities into the full-time police force?
Lord Falconer of Thoroton: My Lords, it is a vital part of the campaign. Having regard to the fact that significant numbers move from the Special Constabulary to the full-time constabulary, it can be an extremely useful stepping stone to increasing the number of black and minority ethnic groups who form part of our full-time constabulary.
Lord Phillips of Sudbury: My Lords, have the Government an open mind as to the prospect of paying special constables?
Lord Falconer of Thoroton: My Lords, we do not pay them at the moment, but we are looking at whether allowances should be improved.

Prostate Cancer
2.44 p.m.
Lord Ezraasked Her Majesty's Government:
What action they propose to take in respect of prostate cancer in the light of the information published by the Institute of Cancer Research on 27th May.
Baroness Andrews: My Lords, the information published by the Institute of Cancer Research on 27th May highlights the importance of prostate cancer and the efforts being made to understand the disease. That is why the Government started the NHS prostate cancer programme in September 2000. It is also why the Government are increasing the money spent on directly-funded research to £4·2 million a year by 2003.
Lord Ezra: My Lords, I thank the noble Baroness for that Answer and welcome her to the Dispatch Box. Bearing in mind that 10,000 men are killed by this dread disease every year, is it not regrettable that, according to the report of the Institute of Cancer Research, to which the noble Baroness referred, prostate cancer research is 10 years behind equivalent research for other major cancers? Also, what progress has been made in replacing the PSA test? That is a matter of great concern. It is widely used but does not sufficiently indicate aggressive forms of the disease. I should point out that I asked this Question over two years ago, on 23rd May 2000, and it appears at col. 639 of Hansard.
Baroness Andrews: My Lords, I thank the noble Lord for his kind words and much appreciate them.
It is always difficult to anticipate and read across from one form of research to another. A survey carried out between 1989 and 1998 showed that our researchers were producing 5 per cent of the total

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research output. Therefore we are holding our own arid the £4·2 million we are committing will certainly help.
As the noble Lord rightly said, he has drawn attention to the PSA test in the House before and we are grateful for that. But two problems are associated with the test. First, raised PSA levels do not always indicate cancer and the test misses cancers which are present when PSA levels are low; secondly, the test does not distinguish between aggressive and slow-moving cancers. A great deal of research has been funded over the past year or two, of which I shall be glad to give the noble Lord written evidence, including specific studies on the PSA test. We are also standardising the test across the UK so that it is of a uniform quality. That will also make a difference.
Baroness Pitkeathley: My Lords, will my noble friend agree that raising awareness among at-risk groups, particularly with this form of cancer, is of the utmost importance? What are the Government's plans for further raising public awareness?
Baroness Andrews: My Lords, my noble friend is absolutely right. Prostate cancer is problematic because of the element of embarrassment associated with it. But we are making progress. In July 2001 the prostate cancer management research programme was introduced. Its intention was to provide an informed choice for men. A pack is being circulated among GPs, who were consulted. It gives a lot of information and enables men to make an informed choice on both the tests and the treatment, which in itself is problematic. That too will help GPs. We hope it will be in the surgeries by the summer. In relation to other forms of raising awareness, some interesting research is about to begin on Afro-Caribbean men who have a high incidence of the disease. It is imperative that we get the results of that research out as fast and as effectively as possible.
Baroness Gardner of Parkes: My Lords, in view of the research which consistently shows that processed tomato products, as opposed to fresh tomato products, are very beneficial and that the taking of tomato juice or tomato sauce on a regular basis is an effective preventive not only for prostate cancer but also for breast cancer, will the Minister suggest to the Department of Health that through health education they encourage people to go on to tomato juice?
Baroness Andrews: My Lords, I shall do my best. One of the problems connected with research related to diet is that people are susceptible to making either the right or wrong choices. However, I shall certainly take the suggestion back to the department.
Lord Morris of Manchester: My Lords, while I warmly acknowledge all the help given by my noble friend Lord Hunt in response to the concern expressed—more especially by our good and noble friend Lady Howells of St Davids about the finding that black men are much more prone than others to
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prostate cancer and in its most virulent form, can my noble friend Lady Andrews say what recent further progress has been made in increasing research in this important policy area? Finally, I, too, rejoice at the presence of my noble friend at the Dispatch Box this afternoon.
Baroness Andrews: My Lords, I thank the noble Lord. The noble Baroness raised the question in the House a year ago. Research into the incidence of the disease among Afro-Caribbean men is about to start at Bristol and in London, as is research on other risk factors connected with genetic and family history. So we have made progress.
Baroness Northover: My Lords, does the Minister agree that we need a major expansion of research—as my noble friend Lord Ezra said—so that we can rapidly develop a screening test which is better able to predict the aggressive forms of the disease? Does she also agree that for too long the cancer charities have borne the major cost of cancer research, and that it is about time that the Government made a reality that others would recognise their aim of trying to match what the cancer charities have put in?
Baroness Andrews: My Lords, since 1999 we have increased spending on prostate cancer by 20 times to the present figure of £4·2 billion—by four times in the past four years. We are delighted to work in partnership with Cancer Research UK and all the cancer charities. They part-funded and helped with the prostate management cancer research programme. They do invaluable work. But we are spending significantly more than we were.
Baroness Noakes: My Lords, I welcome the Minister to the Dispatch Box for a full House. A smaller group of noble Lords had the pleasure of the noble Baroness at the Dispatch Box on a more select occasion recently.
Can the Minister tell us how many men over 50 have had a PSA test following the department's informed choice project? And is the department satisfied with the take-up?
Baroness Andrews: My Lords, I cannot give the figure for the number of men over 50 who have already had the PSA test. This year's informed choice programme will be properly evaluated so that we shall have those figures in a year's time. If there are figures, of which I am simply ignorant, I should be happy to look for them.
Baroness O'Cathain: My Lords, in view of the figure of £4·2 billion being spent on prostate cancer research, can the Minister tell us what is the comparable figure spent on AIDS research in this country? The figures given today for the number of people who have died are quite horrific.
Baroness Andrews: My Lords, it is £4·2 million. I am afraid that I do not have the comparative figures for AIDS research. I think that all noble Lords would

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agree that the figure of 10,000 avoidable deaths is far too high. We are committed to a national screening programme if and when we have the improvements in testing and treatment.

Criminal Records Bureau
2.53 p.m.
Lord Corbett of Castle Valeasked Her Majesty's Government:
Whether the Criminal Records Bureau is meeting its targets for processing applications.
Lord Falconer of Thoroton: My Lords, the Criminal Records Bureau is not meeting its disclosure application processing service standards. It has introduced a performance improvement plan including revised procedures, rapidly recruiting additional staff, increasing resources and extending working hours. There is a special procedure for teachers. The application backlog has been outsourced to Hays Plc's Chennai (India) data processing centre.
Lord Corbett of Castle Vale: My Lords, I thank my noble and learned friend for that response. Since Capita, the private service provider, is taking taxpayers' money to deliver an agreed level of service, will it be fined for failing to do so? When is it expected that the target time of three weeks to process applications will be met so that both voluntary bodies and local authorities can get the protection that the Criminal Records Bureau was set up to provide to the public?
Lord Falconer of Thoroton: My Lords, Capita and the CRB have to work together to ensure that they deliver the performance standard to which my noble friend refers. It is vital that that is delivered. Once that standard has been delivered one can start determining what the consequences are of not having met it before. But the critical matter is to ensure that Capita and the CRB work together to deliver that standard as quickly as possible.
Lord Dholakia: My Lords, I support the concern expressed by the noble Lord, Lord Corbett. Why is the Criminal Records Bureau in such a shambles? It takes over three months to carry out a criminal record check on people working in the sensitive fields of childcare or teaching. That has a serious impact on applicants—particularly those working in the field of resettlement—employed in non-sensitive jobs. What will happen later in the year when not only will sensitive checks be required but people will have to produce their records to employers? How will the Government meet the target when full disclosure is required whether or not people are in sensitive jobs?
Lord Falconer of Thoroton: My Lords, the process has been going since March of this year. Everyone agrees that it was a sensible policy to have a CRB
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which could make disclosures of the kind that it makes. It is not meeting its target. I made that absolutely clear in my original Answer. We are working as hard as we possibly can to try to ensure that it will meet its targets. A recovery plan has been agreed between the Criminal Records Bureau and Capita to try to meet those targets. I agree entirely with the noble Lord that in relation to teachers or anyone who works with either children or other vulnerable people, it is important that the check is made and that it is made within a reasonable time. That is what we are working towards. But we need time to get there.
Baroness Anelay of St Johns: My Lords, the Minister has referred to the fact that there is now outsourcing of this processing to Madras in India. Can he tell the House what guarantee there is of the integrity of the information being outsourced? If, by any remote chance, there was a slip-up and information was not kept confidential, against whom would an individual have to bring a complaint and a case? Would it be against Capita or against Hays which controls the system in Madras?
Lord Falconer of Thoroton: My Lords, the material that is being sent to India is the application forms. It does not include the material which will be matched with the application forms. The application form involves people giving their name, address and the particular job that they are applying for and some other information. It does not include the information that comes from, for example, the police national computer. Having said all that, there are plainly security considerations. We have made checks to ensure that the levels of security are reasonable.
Baroness Sharples: My Lords, the noble and learned Lord says that the CRB is not meeting its targets. By how much is it missing them?
Lord Falconer of Thoroton: My Lords, as my noble friend Lord Corbett said, the intended target is that 90 per cent of enhanced disclosures should be issued within three weeks. The precise figure of how many we are meeting within three weeks is not known, but it is dramatically below that.
Lord Phillips of Sudbury: My Lords, is the Minister aware of the concern in the voluntary and charity sector that more than 2 million applications per annum are now being made? It is reckoned that it costs roughly £10 to £20 in administration charges for each application. There is a £12 fee in respect of each application which is waived in respect of volunteers only. But, on any reckoning, the charity and voluntary sectors have to bear something like £30 million plus a year in extra overheads under the process. Will the Government give sympathetic consideration to assisting the voluntary sector in meeting those charges?
Lord Falconer of Thoroton: My Lords, as the noble Lord rightly points out, in relation to volunteers the

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fee has been waived completely. However, registered bodies must countersign applications so that not just anyone can apply. Those registered bodies charge voluntary organisations. We have tried to keep the costs down as much as possible. But a balance must be struck between getting that protection—namely, ensuring that there is a CRB check before someone works with children or young people—and, on the other hand, not being able to do it because of the costs. We think that a sensible balance has been struck. We have heard the representations made. Our response to those representations was to make it free for volunteers. We think that that is about the right balance.
Lord Berkeley: My Lords, does my noble and learned friend agree that this is merely the latest in a long list of alleged failures by this company? How long will it continue before the Government receive large penalty payments from the company? Is it possible to appoint another company in its place, or has it got the Government over a barrel for five years?
Lord Falconer of Thoroton: My Lords, as I said to my noble friend Lord Corbett, it is critical to reach a solution with the company as quickly as possible. If that is not possible, we will have to examine the legal remedies.

Northern Iraq
3 p.m.
Baroness Coxasked Her Majesty's Government:
What assurances they can give to the Kurdish people living in the Iraqi Kurdistan region of northern Iraq that their security will be protected in the event of the outbreak of military offensives in the region.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Amos): My Lords, the Government remain committed to preventing a recurrence of the grave humanitarian crisis which led to the establishment of the northern no-fly-zone.
Baroness Cox: My Lords, I thank the Minister for that Answer. Does she agree that since 1991 the socio-economic and political progress made by the 3·6 million Kurdish people who live in northern Iraq has been remarkable? Does she also agree that there is now widespread anxiety that since the United States appears committed to an attack on Iraq, Turkey might take advantage of any military offensives in the region to pursue its own agenda, creating chaos and disaster in the region? What assurance can the Minister give to the Kurdish people with regard to those concerns?
Baroness Amos: My Lords, the noble Baroness, Lady Cox, is right; I am aware that Kurdish areas are better off than Baghdad-controlled Iraq, because the Kurds have the political will to make the oil-for-food
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programme work for the people. Those improvements have occurred despite the attempts of the Iraqi regime to obstruct the programme in northern Iraq. For example, it has repeatedly delayed the arrival of demining equipment which could save lives.
With respect to the anxiety mentioned by the noble Baroness, we have repeatedly made clear that no decision has been made to launch an attack on Iraq. With respect to Turkey, it supports the territorial integrity of Iraq and is co-sponsor of the Ankara process. Turkey has demonstrated its commitment to securing peace and stability in northern Iraq and, as I have said, will remain committed to preventing another humanitarian crisis in northern Iraq.
Lord Ahmed: My Lords, does my noble friend agree that 13 per cent of the oil-for-food programme has helped the Kurdish people enormously in improving their lives? What assurance can Her Majesty's Government give to the Kurdish people that even if the sanctions were lifted, they would have 13 per cent of the oil revenues? Finally, will my noble friend tell the House whether the Government will support a permanent solution for the Kurdish people within Iraq?
Baroness Amos: My Lords, it would be difficult for us to give guarantees about the percentage of oil revenues which continue to go to northern Iraq, given that we do not know the outcome of the possible circumstances alluded to by my noble friend. It would be extremely rash of us to do that. Furthermore, we have always supported the territorial integrity of Iraq. We want to see autonomy, not independence, for the Iraqi Kurds and the Kurds have made it clear that that is what they want.
Lord Avebury: My Lords, I, too, congratulate the Kurdish people of northern Iraq on the economic progress they have made. Will the Minister say what further steps the Government are taking to persuade the KDP and the PUK to form a unified administration so that they are better able to protect the people they serve from any future Iraqi incursions? Furthermore, does the Minister agree that if there are military operations in the region, as postulated by the question, it would not only cause immense harm to the Kurdish people of northern Iraq but would have a destabilising effect all around the region, in particular in Turkey?
Baroness Amos: My Lords, we welcome the progress made by the Patriotic Union of Kurdistan (PUK) and the Kurdistan Democratic Party (KDP) on the Washington agreement and we encourage the dialogue that has taken place as a result. Again, it would be wrong to speculate; I made it clear that no military action is planned and that remains the position.
Lord Alton of Liverpool: My Lords, I understand the reply that the Minister has given to the House. However, does she agree that in 1991 the principal casualties as a result of the unconcluded Gulf War

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were the Kurdish/Iraqi people and that they are right to feel a sense of apprehension with weapons of mass destruction situated close to their enclave and because within half an hour of their cities there are tanks which could roll into those areas should hostilities occur?
Does she also agree that one of the best signals that could be sent to the Kurds in that area would be to ensure that the policy she has announced today—that is the right to autonomy within a federated Iraq—should be agreed with the US State Department and with Turkey?
Baroness Amos: My Lords, noble Lords will be aware that there is discussion and dialogue between ourselves, the United States and others with respect to the situation in Iraq and that those discussions will continue. As regards the noble Lord's specific question about weapons of mass destruction, UN measures played a vital role in frustrating the ambitions of Saddam Hussein to develop them. We continue to press for the earliest possible resumption of UN weapons inspections to ensure Iraq's full compliance with its disarmament obligations and we will continue to do so. It is a cornerstone of our policy and it remains important under a number of UN Security Council resolutions.
The Lord Bishop of Chelmsford: My Lords, will the Minister indicate what arrangements would guarantee the availability and distribution of humanitarian supplies to Iraqi Kurdistan in the event of prolonged military action?
Baroness Amos: My Lords, the right reverend Prelate will understand when I say that it is not in our power to give such guarantees. However, we remain committed to preventing a grave humanitarian crisis, as I made clear in my original Answer. That is why the northern no-fly-zone was established in 1991 and that will continue to be a key part of our strategy.
Lord Howell of Guildford: My Lords, will the Minister accept that we on this side of the House welcome the continuing commitment to safeguard the Iraqi Kurds through the no-fly-zone and other arrangements because they certainly need it and are under constant threat? We also welcome the longer-term vision—I am afraid that it is only that at present—of a federal Iraqi democratic state.
However, will the Minister clarify the most important question of all? When it becomes necessary to use force against Saddam Hussein—as it will—are Her Majesty's Government prepared to go along with that or not? We need to know that before the event.
Baroness Amos: My Lords, we have made it absolutely clear that no military action is planned. In a statement made in April, the Prime Minister said that we would consider the matter in a calm and measured way. That continues to be the position.

Business
3.8 p.m.
Lord Grocott: My Lords, at a convenient moment after 3.30 p.m., my noble and learned friend the Leader of the House will, with the leave of the House, repeat a Statement which is being made in another place on the G8 Summit.

Nationality, Immigration and Asylum Bill
Lord Falconer of Thoroton: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Filkin on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to which the Nationality, Immigration and Asylum Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 3,

Schedule 1,

Clauses 4 to 13,

Schedule 2,

Clauses 14 to 48,

Schedule 3,

Clauses 49 to 69,

Schedule 4,

Clauses 70 to 88,

Schedule 5,

Clauses 89 to 100,

Schedules 6 and 7,

Clauses 101 to 108,

Schedule 8,

Clauses 109 to 140,

Schedule 9,

Clauses 141 to 143.—(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

Justice (Northern Ireland) Bill
3.9 p.m.
Report received.
Clause 1 [Guarantee of continued judicial independence]:
Lord Glentoranhad given notice of his intention to move Amendment No. 1:
Page 1, line 6, at end insert "and the legal profession"
The noble Lord said: My Lords, Amendment No. I was instigated by the Law Society of Northern Ireland. This morning I reread the Hansard report of our debate on the amendment in Committee. Having received no further arguments from the Law Society, I do not intend to move it.
[Amendment No. 1 not moved.]
Lord Maginnis of Drumglassmoved Amendment No. 2:
Page 2, line 1, after "Appeal" insert "or judge of the High Court"

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The noble Lord said: My Lords, this amendment seeks to ensure that the eight judges of the High Court, along with other senior judges, should not be appointed by the commission. I am disappointed that the Government have not relented on this. In Committee the issue was clouded with irrelevance with regard to who would or who would not become a Privy Counsellor. The noble Baroness, Lady Scotland, argued that because judges of the High Court are not Privy Counsellors, they could not be appointed in the same way as the Lord Chief Justice and the Lords of Appeal. However, when the point was put to her by the noble and learned Lord, Lord Mayhew, the noble Baroness admitted that only on a few occasions do the Lords of Appeal exercise their UK-wide responsibilities. If that is the case, then it does not appear to me to be relevant whether High Court judges are appointed in the same manner.
In Northern Ireland we face a difficulty in that we are living in a period of transition. We are in a hugely difficult situation in which the whole political process is finding it hard to bed down. The one element of life in Northern Ireland that has been consistent over the past 30-plus years is the judicial process. Yet it appears to us that this legislation may reduce the appointment of High Court judges to a farcical process; that is, something in the nature of Buggin's turn. That is because the First Minister and the Deputy First Minister are going to be put in the position where they have to strike a deal. However, even today they are not natural allies, although because of the special nature of politics in Northern Ireland, they work together. But it is possible that the First and Deputy First Ministers may grow far further apart in years to come.
The best way in which I could describe what is likely to happen to the High Court judges is that they will be appointed by a form of sectarian rotation. If such a move were to be decided in your Lordships' House, then it is not something on which we could congratulate ourselves.
No matter where you go in Northern Ireland, a huge emphasis has been placed on the sectarian balance. But it is one that—certainly in recent times has never emerged in terms of the appointment of High Court judges. We have sought all kinds of ways and means to resolve the problem. With regard to positions in the district and borough councils and, indeed, in the Northern Ireland Assembly itself, we have adopted the d'Hondt system. I am sure that the noble and learned Lord the Lord Privy Seal would not want to see such a system applied to the appointment of High Court judges.
It is essential for the Government to take this away and look carefully not only at whether we may be creating a climate of jeopardy for the judiciary or whether potentially we may be undermining the existing stability of the judicial process, but whether we may be introducing something that will have a knock-on effect, thus further destabilising those who are having foisted on to them the responsibility to agree to the terms of the appointment of High Court judges.
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I have set out my logical and serious arguments for this amendment. I do not want to spoil the case with the stark truth; that is, with my personal perception of what is going on. But throughout our consideration of the Bill, I sense that something may be encapsulated within it that is designed to weak en the traditional links between Northern Ireland and the rest of the United Kingdom and to provide a high-speed highway for links with the Irish Republic.
In respect of the judiciary and of judges of the High Court, I hope that the noble and learned Lord the Lord Privy Seal will do his best to set my mind at rest by assuring me that the provisions contained in the Bill are not simply the means by which to regularise a process that is now secretly under way; rather, that those in the Irish Republic both have been and are being consulted in respect of judicial appointments in Northern Ireland. We shall return to the matter at other points in the Bill where, for no good or accountable reason that I can think of, special consideration is to be given to bodies within the Irish Republic which are not helpful either in a practical sense or in any sense, given the disquiet that such matters can cause in Northern Ireland.
The Lord Privy Seal will do us all a service if he can let me know on which occasions in recent times consultation has been held in respect of the appointment of High Court judges either with government Ministers or perhaps, more discreetly, through the Law Commission. We need to know exactly what is the level of liaison and whether the form of appointment that has been outlined in the Bill before us is to facilitate it even further.
I wish to raise one or two other matters. In Grand Committee on 11th June, the noble Baroness, Lady Scotland, indicated at col. CWH13 of Hansard that. the implementation of the Bill and its various elements would take place in stages. I do not wish to stray on to matters which will be discussed later, but my own experience suggests that there has been precipitate activity in the Northern Ireland Office and that matters which are only just at the consultation stage are being overridden by the implementation process. To put it in colloquial terms, someone is at his work.
I want to believe that what we achieve in terms of judicial appointments will be transparent and secure; that it will not be open to question or the kind of conflict that we have seen—I say this with some sadness—in terms of the appointment of the Chief Constable. That kind of conflict endangers everything that we in Northern Ireland have struggled to put in place. I cannot believe that that is the objective of the Bill. I know that your Lordships would not allow its objective to be the damaging or undermining of the Belfast agreement, which is still in its infancy.
But we have seen this happen from Weston Park to more recent events in Northern Ireland. We have seen a sleight of hand that is hugely disturbing for those of us who have to live with the situation in Northern Ireland. It is for that reason—returning to the issue of High Court judges—that I and most noble Lords want an assurance that the process will be transparent and

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not one which is so flawed that it will create further distrust and destruction in Northern Ireland. I beg to move.
Lord Mayhew of Twysden: My Lords, the noble and learned Lord the Lord Privy Seal was kind enough to write to all noble Lords who took part in the Grand Committee proceedings and to commend the quality of their contributions. We are all grateful for that. We recognise the noble and learned Lord's touch in so doing, and we are grateful for it.
High among the matters that were referred to by many noble Lords in the course of the Grand Committee proceedings was a recognition of the extraordinary quality of the performance of the judiciary in Northern Ireland over the past 30 years and more. There was no dissenting voice. I have far less experience than many noble Lords who took part but, nevertheless, I was able to say that in the years when I had responsibility as Secretary of State, and before that as a Law Officer, I never heard it seriously contended that the judges were other than wholly impartial and showed the highest degree of judicial integrity.
What I want to say in support of the noble Lord, Lord Maginnis, is limited to this: the High Court judges are the cornerstone of the judiciary. The compliments paid to the judiciary as a whole extended right across the board, to the resident magistrates as well as to the higher ranks of the judiciary, but the High Court judges are the cornerstone. They undertake the Diplock hearings, where they are the judges of fact as well as of law, sitting without a jury in cases where that is necessitated by what is still called "the emergency". Their jurisdiction extends to the highest and most serious offences and their powers of sentence extend to sentences of life imprisonment and extremely long finite sentences. They exercise the function of judicial review, which is always extremely important. I tend to think that that is more difficult in Northern Ireland, with its special circumstances, than elsewhere in the United Kingdom.
There is a character distinction to be made between the High Court judges and the remainder of the judiciary which should be reflected in the provisions in the Bill for their appointments. I do not endorse everything that has been said by the noble Lord, Lord Maginnis. I do not dissent from what he said latterly because I understand his suspicions. I do not advance what I am saying in support of him as an endorsement of his suspicions, but I warmly endorse his anxieties about the means of appointing the small body of High Court judges in Northern Ireland on the recommendation of the First Minister and Deputy First Minister acting together. The High Court judges should be separated from their jurisdiction.
We shall come back to this issue again in other amendments and there will be other opportunities to reflect on the Judicial Appointments Commission. But there is an important character distinction. If I may
16
put it this way, you will know it when you see it. I have seen it for quite a long time. I therefore support the amendment.
Lord Morris of Aberavon: My Lords, I rise to express my concern at the Bill as it now stands. I read the proceedings in Grand Committee. I was not persuaded about the distinction between judges of the Court of Appeal and High Court judges in this respect. If I recall correctly, the point was made that a judge of the Court of Appeal is a Privy Counsellor. I did not attach any importance to that in that context.
The noble and learned Lord, Lord Mayhew, had much longer experience than I had as Attorney-General. I visited Northern Ireland frequently every few weeks for the purpose of meeting the judges and talking to them—I always had a meeting with the Lord Chief Justice—all in the interests of ensuring that I, as an outsider, knew a little of what was happening.
The problem—I hope that the Government will listen to this point—is that you have here a small core of very high quality judges. That is beyond argument. Secondly, they carry out their very difficult functions as High Court judges, sitting as judges both of law and of fact in Diplock cases. It was my function and that of the noble and learned Lord, Lord Mayhew, when he was Solicitor-General to take away from a number of people each week their right to trial by jury if they were alleged to be concerned with offences under the schedule. I was always conscious of the high quality of the judges who exercised that onerous responsibility as judges of fact and of law in criminal trials.
The problem that has not so far been canvassed is that judges of the Court of Appeal—to my astonishment—are substantially interchangeable with High Court judges. Judges of the Court of Appeal sit to hear ordinary trials that a High Court judge would normally hear. There is a very small number of judges of the High Court and above in Northern Ireland. It is sometimes difficult to find someone to hear a case: he may already have heard the judicial review, and then his function is to hear either the main trial or the trial in the Court of Appeal. Therefore, to my surprise, there is a much greater degree of interchangeability than one would find in an English or Welsh jurisdiction.
Likewise, High Court judges sit in the Court of Appeal, but it is the fact that it happens the other way round that causes me concern—although it is not unknown for even the Lord Chief Justice to take a trial from time to time in various parts of England and Wales, but it is unusual to say the least. Therefore, I ask the Government to consider carefully what is the real basis for this distinction. I am concerned, as I was when I read the debate that took place in Committee.
3.30 p.m.
Lord Molyneaux of Killead: My Lords, I want briefly to express my full support for the case made by my noble friend Lord Maginnis. The noble and learned Lord, Lord Mayhew, has calmly and accurately illustrated the enormity of what the Bill sets out to do. To illustrate the point, if the Bill were to

17
apply in Great Britain to England and Wales, we would have the Prime Minister and the leader of the Conservative Party appointing and sacking Her Majesty's judges. However skilfully some may try to dress the matter up and to camouflage it, that is essentially the problem.
My noble friend Lord Maginnis is perhaps more hopeful than I. He said that there could be a change within 10 months at an Assembly election. The general view has been expressed by the news industry—I do not always uphold its views but there seems to be a conclusion across the board—that there will be a change of parties, so that without any reflection on the integrity of those who might be appointed, according to the polls we could have a First Minister and a second Minister who were even more opposed than at present.
The problem is that they would have to act jointly. I can hardly see the Prime Minister and the Leader of Her Majesty's Opposition acting jointly on a matter as fundamental to British justice as the proposal in the Bill. The appointment of judges would simply become a matter of conflict between the First Minister and the second Minister. As has been implied and stated, instead of judges being appointed on merit alone, we would end up with a bargaining situation between the two Ministers: "You get one, and I'll get one", without any regard to merit. That is the horrifying thing about this provision.
I feel strongly that High Court judges must not under any circumstances be made pawns in a political game, as the Bill proposes.
Lord Glentoran: My Lords, I am straightforward in my support for the amendment. My noble and learned friend Lord Mayhew and the noble and learned Lord, Lord Morris of Aberavon, have stated very clearly the seriousness of the amendment and of the situation of the eight High Court judges in Northern Ireland. There is a strong case for the Government to do some rethinking.
To touch on the politics of the speech made by the noble Lord, Lord Maginnis, this should be a straightforward technical Bill devolving power in regard to the judiciary and the Northern Ireland judicial system. But, unfortunately, too great a reference to politics has been introduced, unnecessarily, in the form of overstatements and over-actions in different parts of the Bill. A great deal of this was discussed in Committee. I have no intention at this stage of going over any of the arguments. I hope that the Government will realise that they are hearing arguments concerning the small print politics included in the Bill which need not have been there.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I hope that I shall be able to give noble Lords greater assurance than we seem to have been able to manage to date. I say to the noble Lord, Lord Maginnis of Drumglass, that the Government have given these
18
issues very careful consideration. We too want a transparent system which generates the trust that is necessary to make the Bill work.
These amendments were considered both in another place and in Committee. The intention is to give High Court judges the same appointment procedures and tenure as the Lord Chief Justice and the Lord Justices of Appeal. I regret to say that the Government have not been persuaded by the debate on the issue so far. Perhaps I may recite some of the reasons why.
First, the review was clear. The Judicial Appointments Commission should appoint all judges up to and including High Court judges. I do not depart for one moment from the warm endorsement given to the judges by all noble Lords in Grand Committee, and reiterated quite properly by the noble and learned Lord, Lord Mayhew. That was a unanimous view.
I agree with the noble and learned Lord, Lord Mayhew, that the High Court judges are one of the cornerstones of the judiciary and that they have had, to date, the character and distinction which mark them out for the proper role. All of those who have been burdened with that office in Northern Ireland have discharged the duty with distinction. These changes in the structure do not seek to change any of that. The case for excluding the most senior members of the judiciary from the remit of the Judicial Appointments Commission has not been made out, we respectfully suggest, for the High Court judges. We are looking to the future at what will be the next structure once devolution takes place.
The Chief Justice and the Lord Justice of Appeal are members of the Privy Council, as has been rightly noted by a number of noble Lords, not least by my noble and learned friend Lord Morris. But there is an important distinction. The Lord Justices of Appeal are members who potentially have responsibilities beyond Northern Ireland jurisdiction. This has not so far made much demand on their time, but they could be called on to act as Privy Counsellors in the future. That is perhaps more likely now, given the Privy Council's role in determining devolution matters. The issue is not simply whether they have done so in the past. They retain that potential and will do so in the future.
The Government agree with the review that it is appropriate to differentiate at this level of the judiciary. That line was taken with Scotland, where appointments and removals at the equivalent level are devolved. The amendments would remove that provision.
I know that there is concern. The noble Lord, Lord Maginnis, talked about Buggins' turn for judges. Buggins has never lived in the courts of our country and I do not think that he is going to get there now.
Clause 5 makes it plain that merit is the only criterion that will be operated. Subsection (2) says:
"Only a person selected by the Commission may be appointed, or recommended for appointment, to a listed judicial office".

19
Subsection (7) says:
"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".
Subsection (8) says:
"The selection of a person by the Commission to be appointed, or recommended for appointment, to an office (whether initially or after reconsideration) must be made solely on the basis of merit".
If the First Minister and Deputy First Minister cannot agree on the commission's first recommendation for appointment, they must accept the commission's second recommendation, as set out in Clause 5(7). It is plain that the Lord Chief Justice will have a vested interest in making sure that the judges so appointed are of the highest possible calibre so that the high standards that have always prevailed in Northern Ireland will continue.
As I said in Grand Committee, the Lord Chief Justice of Northern Ireland currently makes a significant contribution to the deliberations on appointment, because he has the most intimate knowledge of Northern Ireland, its judiciary and those who seek proper judicial office. My noble and learned friend the Lord Chancellor makes no bones about the reliance that he places on the Lord Chief Justice's good judgment.
I hope that noble Lords agree that the structure that we have put in place for High Court appointments is robust. Not only that, it underlines the importance of merit continuing to be the only criterion that will determine office—not Buggins' turn or political interference, but real quality. That is what Northern Ireland needs and has always had. The Government are determined that Northern Ireland will continue to benefit from that.
Of course I understand the anxiety when we chart a new course, but we have to have a little courage and trust. The judiciary is well supported by a vigorous independent Bar and legal profession, which is drawn from and reflective of the community as a whole. Those good men and women have been trusted to date and the Government feel that they can be trusted in the future, together with a proper structure that will support them and enable them to come to the right decisions.
The noble Lord, Lord Maginnis, asked again about commencement. Clause 86 sets out the position succinctly. It says:
"The preceding provisions of this Act (with the Schedules) shall not come into force until such day as the Secretary of State may by order appoint".
Subsection (2) says:
"An order may appoint different days for different purposes".
We shall be able to look at the right time for these provisions and set that time for implementation when all is ready. I assure noble Lords that my noble and learned friend the Lord Chancellor and this
20
Government are as jealous as anyone to maintain the integrity of the judicial system in England and Wales and, as it should properly extend, in Northern Ireland.
3.45 p.m.
Lord Tebbit: My Lords, before the noble Baroness sits down, can she explain Clause 5(3)? Does it mean that the First Minister and Deputy First Minister, acting jointly, can foist on the commission a candidate whom the commission did not want?
Baroness Scotland of Asthal: My Lords, that is not the proper interpretation of Clause 5(3).
Lord Tebbit: My Lords, in that case I should be grateful if the noble Baroness would explain the proper meaning of that subsection.
Baroness Scotland of Asthal: My Lords, Clause 5(3) enables the First Minister and Deputy First Minister, acting jointly, to require the commission to add an extra person to that which needs to be appointed. It would be preferable if I could explore the issue further and come back with a fuller explanation. My interpretation is that the subsection would not enable the First Minister and Deputy First Minister to oblige the commission to recommend someone who would not properly be appointed in accordance with the normal procedures. I shall certainly come back to that.
Lord Tebbit: My Lords, perhaps I can fill in a little time while the noble Baroness gets some advice. It would seem extraordinary if we were asked to vote on the issue when the noble Baroness cannot explain the meaning of the clause and says that it does not mean what it appears to mean, but that she does not know what it means.
Baroness Scotland of Asthal: My Lords, if there is a vacancy, the First Minister and Deputy First Minister can require the commission to select a person, but it is for the commission to decide whom it recommends. The First Minister and Deputy First Minister cannot specify that they want, for example, the noble Lord to be selected. They can simply say that they want someone to be selected for the post. That is my understanding. They cannot identify the person.
Lord Mayhew of Twysden: My Lords, before the noble Baroness sits down—and perhaps to fill in a little more time—I have a further question. In Committee I asked whether she had any information about the extent to which Lords of Appeal and Lord Justices of Appeal in Northern Ireland had served in the Privy Council in an English jurisdiction. Not surprisingly, she was not able to answer at that time. She said today that the responsibility has not made great inroads into their time. I wonder whether it has made any inroads.
Baroness Scotland of Asthal: My Lords, there has been the potential for that, but it has not happened. We did a quick trawl on this. In 1997, the Lord Chief Justice of Northern Ireland was invited to sit as a Privy

21
Counsellor in a particular matter. Regrettably, his other commitments made it impossible for him to sit. Requests can be made, but it depends on whether judicial officers are free to sit on the Judicial Committee of the Privy Council on a particular date. The important issue is that the potential is there. They are invited to sit from time to time, subject to availability. As I said earlier, it may become more important to have someone with a proper understanding of the worries and concerns of Northern Ireland when the Privy Council comes to deal with devolved issues, as will happen in future. One can envisage that there may be a greater call on their time in the future than there has been so far. They will obviously sit as just one of a number.
Lord Morris of Aberavon: My Lords, I am grateful for that explanation. It is obvious that, in practical terms. they have so far not acted outside their jurisdiction. That is therefore not an argument that should unduly influence us. However, I am finding it difficult to follow the Privy Council argument itself. It is certainly an argument for making Lord Justices of Appeal Privy Counsellors. However, it is not an argument that is directly relevant in distinguishing the form of appointment of High Court judges who may be asked to perform within Northern Ireland precisely the same functions as those performed by Lord Justices of Appeal. I fear that the Privy Council argument is a complete red herring, or I may be unduly dim-witted and cannot understand it.
Baroness Scotland of Asthal: My Lords, I would never suggest that the noble and learned Lord is dimwitted or anything of that sort. On this occasion, however, I would say that he has perhaps failed to see the force of the arguments that we are putting forward. Perhaps I should make those arguments a little more clearly to assist him. As I said, the Lord Chief Justice has been asked on one occasion. Before 1997, however, previous Lord Chief Justices sat as Privy Counsellors. The noble and learned Lord wanted in particular to know what has happened since 1997, and that is our understanding of the situation.
I have emphasised that, in future, the Judicial Committee of the Privy Council will sit to rule on devolution issues, possibly including whether the Assembly's legislation is within the competence of the devolved Administration. I am sure that the noble and learned Lord, Lord Morris, will agree that it would be important to ensure that those sitting in the Privy Council on such matters have some expertise and knowledge of those matters. Whereas they currently form part of a pool of people who can be drawn upon to sit in the Judicial Committee of the Privy Council, subject to their availability, it is particularly important that those with particular knowledge are available to assist the Privy Council on devolution issues.
It is a distinction because of that important potential to sit on broader jurisdictional issues. It also precisely mirrors the line taken in Scotland. There is therefore a certain symmetry between the rules that we have put in place in one part of the United Kingdom and those
22
that we have put in place in another. I know that Northern Ireland has always been very anxious about parity of treatment. There is parity in the rules that we have put in place for Northern Ireland and for Scotland.
Lord Maginnis of Drumglass: My Lords, I hope that the noble Baroness will forgive me, but she has managed—perhaps because I do not have a legal background—to magnify the confusion that. I felt when I arrived here today. Her argument on the role which Privy Counsellors may have to play in deliberating on devolved government and devolution issues seems to be self-contradictory. Is she saying that our High Court judges will not be Privy Counsellors although they will have to adjudicate on devolution issues in Northern Ireland? Or is she saying that judges who have a competence throughout the United Kingdom will be required to adjudicate on devolution issues in Northern Ireland? As she can cite only one occasion when a Lord Chief Justice has been required to serve as a Privy Counsellor, and no occasions on which a Lord Justice of Appeal has been required to do so, is it likely that the services of High Court judges will be called upon first? I am beginning to wonder whether the whole issue is an absolute and total red herring and has little to do with the issue that we are trying to resolve.
Baroness Scotland of .Asthal: My Lords, I am happy to assist the noble Lord. The Judicial Committee of the Privy Council will sit from time to time to determine a variety of issues such as those affecting the Commonwealth and countries in which the Judicial Committee is the final court of appeal. Additionally, it will now have jurisdiction in relation to devolved matters. When the Judicial Committee of the Privy Council sits, it will be able to draw upon any number of Lord Justices of Appeal or Lords of Appeal in Ordinary who are fit to sit in the Privy Council. The Lord Chief Justice of Northern Ireland is one of those. When an issue relates particularly to devolution, it may be particularly important to ensure that the complement of judges sitting to hear that issue possess some knowledge of that subject and its history. Such judges may therefore be drawn from the pool of judges to sit on the issue thereafter.
High Court judges are not Privy Counsellors and cannot be called to sit as a member of the Judicial Committee of the Privy Council. All judges in Northern Ireland might have to decide devolution issues. However, the Privy Council is the final Court of Appeal on such issues. I hope that that explanation is a little clearer.
Lord Howie of Troon: My Lords, I think that we require a certain element of discipline here. As I understand it, we are at Report stage and the Minister should not be subjected to this type of harassment. There should be one speech after the Minister's speech and no more.
Lord Maginnis of Drumglass: My Lords, the answers that we have been given today are not sufficient to satisfy us. They are not sufficient in relation to the

23
Privy Counsellor issue, and they have not even attempted to provide the assurance I requested on the role of the Irish Republic. Consequently, and because the situation in Northern Ireland is currently in jeopardy, I feel that I would be failing in my duty if I did not press the issue to a Vote.
3.59 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 158.

Division No. 1

CONTENTS

Aberdare,L.

Howell of Guildford, L.

Ackner,L.

Kimball, L.

Alenby of Megiddo.V.

Laird, L.

Anelay of St Johns, B.

Lane,L.

Astor of Hever.L.

Lyell, L.

Beaumont of Whitley, L.

McColl of Dulwich, L.

Blaker, L.

MacGregor of Pulham Market, L

Blatch,B.

Blood, B.

Maginnis of Drumglass, L. [Teller]

Boardman, L.

Bowness,L.

Marsh, L.

Brabazon of Tara, L.

May of Oxford, L.

Brightman, L.

Mayhew of Twysden, L.

Brittan of Spennithorne, L.

Miller of Hendon,B.

Brooke of Sutton Mandeville, L.

Molyneaux of Kilkad, L.

Brougham and Vaux, L.

Monro of Langholm, L

Butterworth, L.

Mowbray and Stourton, L.

Byford,B.

Noakes,B.

Caithness, E.

O'Cathain, B.

Carlisle of Bucklow, L.

Onslow, E.

Carnegy of Lour, B.

Palmer, L.

Chorley, L.

Park of Monmouth, B.

Coe,L.

Peyton of Yeovil, L.

Colville of Culross, V.

Pilkington of Oxenford, L.

Cooke of Islandreagh, L.

Platt of Writtle, B.

Cope of Berkeley, L.

Rawlings, B.

Cox,B.

Renton, L.

Craig of Radley.L.

Roberts of Conwy, L.

Crickhowell, L.

Rogan, L. [Teller]

Cuckney, L.

Rotherwick, L.

Dean of Harptree, L.

Seccombe, B.

Denham, L.

Sharpies, B.

Dixon-Smith, L.

Shaw of Northstead, L.

Eccles of Moulton, B.

Skelmersdale, L.

Ecclen of Winton, L.

Soulsby of Swaffham Prior, L.

Elles,B.

Stevens of Ludgate, L.

Elliott of Morpeth, L.

Strathclyde, L.

Elton, L.

Swinfen,L.

Fitt,L.

Tebbit, L.

Freeman, L.

Thatcher, B.

Gardner of Parkes, B.

Trefgarne, L.

Glentoran, L.

Trumpington, B.

Gray of Contin, L.

Tugendhat, L.

Hayhoe, L.

Vinson, L.

Holderness, L.

Vivian, L.

Howe of Aberavon, L.

Warnock, B.

NOT-CONTENTS

Acton, L.

Andrews, B.

Ahmed, L.

Archer of Sandwell, L.

Allen of Abbeydak,L.

Ashton of Upholland, B.

Alton of Liverpool, L.

Avebury, L.

Amos,B.

Bach,L.

24

Barker, B.

Lipsey, L.

Barnett,L.

Listowel, E.

Bassam of Brighton, L.

Lofthouse of Pontefract, L.

Berkeley, L.

Macdonald of Tradeston, L.

Bernstein of Craigweil, L.

McIntosh of Haringey, L. [Teller]

Borrie, L.

Brennan,L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Mackenzie of Framwellgate, L

Bruce of Donington, L.

Maclennan of Rogart, L.

Christopher, L.

McNally.L.

Clarke of Hampstead, L.

Maddock, B.

Corbett of Castle Vale, L.

Mar and Kellie,E.

Crawley, B.

Mason of Barnsley, L.

Davies of Coity, L.

Massey of Darwen, B.

Davies of Oldham, L.

Merlyn-Rees, L.

Desai,L.

Milner of Leeds, L.

Dholakia, L.

Mitchell, L.

Dixon, L.

Morgan, L.

Dormand of Easington, L.

Morris of Manchester, L.

Dubs, L.

Murray of Epping Forest, L.

Evans of Temple Guiting, L.

Northover, B.

Evans of Watford, L.

Orme, L.

Ezra,L.

Ouseley, L.

Falconer of Thoroton, L.

Patel of Blackburn, L.

Falkender.B.

Peston, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Faulkner of Worcester, L.

Plant of Highfield,L.

Fearn, L.

Ponsonby of Shulbrede, L.

Filkin,L.

Prys-Davies, L.

Fyfe of Fairfield, L.

Puttnam, L.

Gale,B.

Ramsay of Cartvale, B.

Gavron, L.

Rea,L.

Geraint,L.

Redesdale, L.

Gibson of Market Rasen, B.

Rendell of Babergh, B.

Gilbert, L.

Rennard, L.

Gladwin of Clee, L.

Richard, L.

Golding, B.

Rodgers of Quany Bank, L.

Goldsmith, L.

Rooker, L.

Goudie,B.

Russell, E.

Gould of Potternewton, B.

Sainsbury of Turville, L.

Graham of Edmonton, L.

Sandberg, L.

Greengross, B.

Sawyer, L.

Grenfell, L.

Scotland of Asthal, B.

Grocott,L.[Teller]

Scott of Needham Market B

Hamwee, B.

Serota R

Hardy of Wath,L.

Sewel, L.

Harris of Richmond, B.

Sharp of Guildford, B.

Harrison, L.

Sheldon, L.

Haskel, L.

Shutt of Greetland, L

Hayman, B.

Simon, V

Hilton of Eggardon, B.

Smith of Clifton L

Hogg of Cumbernauld, L.

Smith of Gilmorehill, B.

Hollis of Heigham, B.

Holme of Cheltenham, L.

Smith of Leign, L.

Hooson, L.

Stallard, L.

Howe of Idlicote, B.

Steel of Aikwood, L.

Howells of St. Davids, B.

Stone of Blackheath, L.

Howie of Troon, L.

Symons of Vernham Dean, B.

Hoyle, L.

Taylor of Blackburn, L.

Hughes of Woodside, L.

Temple-Morris, L.

Hylton,L.

Tenby, V.

Irvine of Lairg, L. (Lord Chancellor)

Thomas of Walliswood, B.

Thomson of Monifieth, L.

Islwyn, L.

Turner of Camden, B.

Jay of Paddington, B.

Uddin, B.

Jeger, B.

Walmsley,B.

Jenkins of Hillhead, L.

Warner, L.

Jenkins of Putney, L.

Weatherill, L.

Jones, L.

Wedderbum of Charlton, L.

Jordan, L.

Whitaker, B.

King of West Bromwich, L.

Wigoder, L.

Kirkhill,L.

Williams of Crosby, B.

Layard, L.

Williams of Elvel, L.

Lea of Crondall, L.

Williams of Mostyn, L.(Lord Privy Seal)

Lester of Herne Hill, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.9 p.m.
[Amendment No. 3 not moved.]
Schedule 1 [Listed judicial offices]:
[Amendment No. 4 not moved.]

G8 Summit
4.10 p.m.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords. with the leave of the House, I beg leave to repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement on the G8 Summit in Canada. Copies of all the documents agreed at the summit have been placed in the House Libraries. I pay tribute to Prime Minister Chretien for his excellent leadership at the meeting.
"This was the first meeting of G8 leaders since September 11th. We reviewed progress made in tackling terrorism, including steps taken to cut off terrorists' sources of financing, and action in Afghanistan and globally against A1'Qaeda and other terrorist networks. I set out detailed United Kingdom proposals for curbing opium production in Afghanistan, which is the source of 90 per cent of the heroin on our streets; and we agreed collectively to step up efforts to deal with this menace. We also agreed a set of practical measures to enhance the security of the global transport system.
"The events of 11 th September proved beyond doubt that terrorists will use any means to attack our countries and our people. We therefore agreed at Kananaskis to launch a new global partnership against the spread of weapons of mass destruction, and so help ensure that these deadly materials cannot fall into the hands of terrorist groups. The world's largest stocks of sensitive nuclear and chemical materials are in the countries of the former Soviet Union—above all, in Russia. The G8 has agreed collectively to raise up to 20 billion dollars over the next 10 years to fund projects under the global partnership. Among our priority concerns are the destruction of chemical weapons, the dismantling of decommissioned nuclear submarines and the employment of former weapons scientists. As part of this programme, the UK plans to commit up to 750 million dollars, spread over the next decade.
"We also discussed pressing regional issues. On the Middle East, G8 leaders reaffirmed their commitment to the 'two state' vision first set out in the Saudi peace initiative: a state of Israel, secure and accepted by its Arab neighbours, living side by side in peace with a stable and well-governed state of Palestine. We called for continuing efforts on India/Pakistan.
26
"The summit marked a major shift in the G7's relationship with Russia. G7 leaders agreed that Russia will assume the G8 presidency in 2006 and host our summit that year. Taken together with agreement by both the European Union and the United States to grant Russia market economy status, and with the launch of the new NATO/ Russia Council, these moves constitute a significant further step in building a strong partnership with Russia on security and economic issues. The next step is Russia's accession to the World Trade Organisation.
"But the main focus in the summit was Africa. Let me remind the House why. The tragedy of Africa is that it is a rich continent whose people are poor. Africa's potential is enormous. Yet a child in Africa dies of disease, famine or conflict every three seconds. These are facts that shame the civilised world. In Genoa last July, G8 leaders agreed to draw up a comprehensive action plan for Africa. Central to this proposal was the concept of a deal: that African governments commit themselves to economic, political and governance reforms; and that the G8 responds with more development assistance, more debt relief and greater opportunities for trade.
"Over the past year, African leaders have developed the New Partnership for Africa's Development—NePAD. This is an African-led initiative, which puts good governance at its heart. African countries have pledged to raise standards of governance and have committed themselves to a peer-review mechanism which will provide an objective assessment against these new standards.
"In response, at Kananaskis the G8 published its action plan for Africa. The plan sets out specific measures in eight areas. Peace and stability are preconditions for successful development everywhere, especially in Africa. Eight million Africans have died in conflicts in the last 20 years. The G8 committed to intensify efforts to promote peace in the Democratic Republic of Congo and in Sudan—two of Africa's bloodiest wars—ancl to consolidate peace in Angola and Sierra Leone.
"For the long term, we need to develop the peacekeeping capacity of African countries themselves. By 2003, we will have a joint plan in place to build regional peacekeeping forces, trained and helped by us. But we must also tackle the underlying issues which so often drive conflict. We pledged our support for a UN initiative to monitor and address the illegal exploitation and international transfer of natural resources from Africa that fuel armed conflicts, including mineral resources, petroleum, timber and water, and to support voluntary control efforts such as the Kimberley process for diamonds.
"Around 50 million children in Africa are not in school of any kind. We agreed to implement the education taskforce report which will increase significantly bilateral aid to basic education for African countries with a strong policy and financial

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commitment. Recent analysis by the World Bank sets out clearly which policies work. Where countries have those policies in place, we will ensure that they have sufficient external finance to meet the goal of universal primary education by 2015.
"We will also continue our efforts to tackle HIV/ AIDS through the new global health fund. G8 countries committed to provide the resources necessary to eradicate polio from Africa by 2005.
"Twenty-six countries, including 22 in Africa, have already benefited under the enhanced HIPC—heavily indebted poor countries—initiative, receiving 62 billion dollars in debt relief. Eventually, 37 countries are expected to benefit.
"At Kananaskis the G8 agreed to provide up to an additional 1 billion dollars for the HIPC trust fund. This will help to ensure that those countries whose debt position has worsened because of the global economic slowdown and falls in commodity prices will get enough debt relief to ensure that they are able to exit HIPC with sustainable levels of debt. On trade, we committed to make the WTO Doha round work for developing countries, particularly in Africa. We reaffirmed our commitment to conclude the negotiations no later than 1st January 2005 and, without prejudicing the outcome of the negotiations, to apply our Doha commitment to comprehensive negotiations on agriculture aimed at substantial improvements in market access and reductions of all forms of export subsidies, with a view to their being phased out.
"At Monterrey in February, the international community pledged to increase official development assistance by 12 billion dollars a year from 2006. In Kananaskis the G8 agreed that at least half of this new money would go to reforming African countries for investment in line with NePAD's own priorities. This is a substantial commitment by any standards—an additional 6 billion dollars each year for the world's poorest continent. It recognises Africa's needs. But it is also a strong signal of the G8's confidence that the commitments African leaders are making under NePAD really will transform the environment in which our aid is invested.
"The United Kingdom will contribute its share of these additional resources. I can tell the House that we expect UK bilateral spending on Africa to rise from around £650 million a year now to £1 billion by 2006, which is three times the level we inherited from the previous government.
"President Mbeki of South Africa said,
`there has never been an engagement of this kind before, certainly not between Africa and the G8 … it is a very, very good beginning'.
"President Obasanjo from Nigeria called it an,
`historic moment for Africa and for the whole relationship between the developed and developing world'.
"Africa is not a 'hopeless' continent, as some have described it. Uganda has reduced poverty by 20 percentage points in the past 10 years; growth has
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averaged around 7 per cent a year. HIPC debt relief and aid have been used to help provide free primary education. As a result, enrolment has doubled, putting millions of children into school.
"Mozambique has seen growth of 9 per cent over the past four years. Tanzania is now providing free primary education. As a result of courageous new policies, Mali has reduced poverty dramatically in the past four years.
"Of course we need to do more; much more. But for the first time there is a comprehensive plan dealing with all aspects of the African plight. For the first time it is constructed with African reforming leaders as partners, not passive recipients of aid. For the first time we link explicitly and clearly good governance and development.
"This is not our destination, of an Africa renaissance, achieved. But it is a new departure. It is a real signal of hope for the future. It is up to us now to make it a reality. I am proud of the part Britain has played in it. There are those who say Africa matters little to the British people. The millions who donate to charities, who give up time, energy and commitment to the cause of Africa, eloquently dispute this. Africa does matter; to us and to humanity. We intend to see the plan through."
4.20 p.m.
Lord Strathclyde: My Lords, I thank the noble and learned Lord the Leader of the House for repeating the Statement. I assure him, as I am sure will the noble Baroness, Lady Williams, that we very much welcome the commitment of the G8 to support education in developing countries and to assist them in tackling the scourge of diseases like AIDS, TB, malaria and polio. The progress made on international debt relief is also very welcome.
The Prime Minister understandably focuses on the G8's meeting with African presidents and the UN Secretary-General to discuss the New Partnership for Africa's Development. It is an important step in the right direction. But does he share my surprise that the Statement was not more forthright on the matter of dictators who have despoiled Africa and on the case of Mugabe in particular? Indeed, the Statement mentions almost every single African country except Zimbabwe where it has been reported recently that children are now starving to death.
We are told that there can be no partnership for development with countries which do not respect political freedom and the rule of law. But what does that amount to in the case of the racism, violence and corruption so evident in Zimbabwe? Did the Prime Minister press the summit to demand fresh presidential elections or to co-ordinate sanctions between the EU and North America?
On a wider theme, we have heard much recently of the doctrine created by the Prime Minister that claims a right to require other countries to change their governments or to exclude certain parties from power: for example, last year Austria; this year France; or intervention in the former Yugoslavia. And now we

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have the Prime Minister's statement that African countries must have proper commercial and legal systems and respect for the processes of democracy. Did the summit try to define exactly what criteria third countries have to meet to pass the acceptability test and receive support? If not, can the noble and learned Lord undertake to lay before the House a document which sets out in detail what this country's own criteria are? This surely must be a key working text of an ethical foreign policy.
Can the Leader of the House say whether there were discussions on the implications of the creation of the International Criminal Court for the fight against terrorism? Has he any news on the latest situation with regard to the UN operation in Bosnia? As he will recall, we expressed our concern in this House on the issue now being raised by President Bush. We wanted the ICC to work but we also wanted to protect our own troops against malicious prosecution. The French Government wisely put a declaration and reservations into the Rome Statute designed to protect their military personnel against the jurisdiction of the court. This House tried to achieve the same for our forces. The Government resisted it. Does the noble and learned Lord now regret that? Would not sensible safeguards for troops engaged in lawful operations set the court on the firm basis we all want from the beginning?
Kananaskis was the first G8 gathering since 11th September. Naturally. we welcome the practical steps agreed to fight international terrorism and prevent the spread of weapons of mass destruction. We also welcome the full re-emergence of Russia on the world stage. It is right that the G8 should help to reduce her nuclear stockpiles and fitting that Russia will assume the presidency of the G8 in 2006.
I turn briefly to the communiqué on transport security. Can the noble and learned Lord explain what is meant by minimum standards for the issue of travel and identity documents by October 2002? What, in the Government's view, is involved in recommendations on minimum standards for the application of biometrics in procedures and documents by spring 2003? Does he anticipate that any of that will require domestic legislation? And can he assure the House that the sharing of information on certain passport data will accord with this country's rules on data protection?
We welcome the attention being given to container security although the lead times seem long. But, given the aspiration in the communiqué only to seek to agree standards on reinforcing flight deck doors on passenger aircraft by April 2003, can he say when the Government expect improved security to be in place on U K carriers?
We note the balanced statement on the Middle East, which we endorse. But what is the meaning of the statement by the Prime Minister that,
"we have got to have a Palestinian leadership with whom we can negotiate seriously"?
In the noble and learned Lord's view, does the Palestinian authority have such leadership today?
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On Afghanistan, can he tell the House whether British troops will be involved in action to eliminate opium production and trafficking as was agreed at the summit?
Finally, the noble and learned Lord may not yet have seen on the communiqué on co-operation projects on counter-terrorism in guideline ix that,
"measures will be put in place to ensure effective protection of sensitive information and intellectual property".
What are the implications of that for the issue of academic freedom that is of such concern to this House on the Export Control Bill to which we shall soon return?
If the summit is to be remembered, it will be judged by what it achieves for Africa and whether the G8 and, no less important, African leaders can make good the aspirations set out. We have learnt through decades of bitter experience that the size of the aid promises does not necessarily lead to long-term development and prosperity. Against this background, does the noble and learned Lord think that the £200 million cost of the summit, as is alleged, was excessive? What will be the cost to United Kingdom taxpayers of hosting the summit in 2005?
4.27 p.m.
Baroness Williams of Crosby: My Lords, I thank the noble and learned Lord the Leader of the House for repeating the Statement. I make some congratulatory remarks to the Government although in some matters I shall be closer to the criticisms of the noble Lord, Lord Strathclyde.
I congratulate the Government on what I understand was very much a UK initiative with regard to the opium crop in Afghanistan. The UK Government seized upon it, rightly, and then pursued it, bringing their allies along with it. The Government should be fully commended.
Although we shall come to the issue in the questions, I also congratulate the Government on the position that they have taken consistently to try to do something serious about the continent of Africa. I have reservations about some of the conclusions of the summit. However, I wish to make it plain that in my view the United Kingdom in this respect has been consistently more proactive than many other members of the G8.
I regret the brevity of the reference in the Statement to the Middle East. It is a matter of only three or four lines. At this extremely troubling and even fateful moment in history, at least two questions should be asked. First, what position do the United Kingdom Government take in the light of the G8 Summit Statement and of the earlier Statement from Seville, Spain, about the EU summit, where, specifically Israel was asked to cease military operations in occupied territories? That was not reflected in the summit Statement. Perhaps the noble and learned Lord can tell us exactly where the Government stand.
On the other side of the troubling equation of the Middle East, allegations have been made in particular by some leading American politicians on the deep

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involvement of the leader of the Palestinian authority, Yasser Arafat, in terrorist operations. There are implications that at Ramallah and elsewhere evidence has been turned up to show that there are close links between terrorist operations and Mr Arafat himself. I do not expect to receive a straight reply on the matter, but perhaps the Government, along with other G8 leaders, would consider publishing any evidence that they may have of Mr Arafat's direct involvement in terrorism. Obviously, that is very germane to the question about whether or not he can be accepted as the democratically-elected leader of the Palestinian interest in the Middle-East.
On Bosnia, my remarks are somewhat close to the concerns expressed by the noble Lord, Lord Strathclyde, though I approach them from a rather different angle. I very much hope that the Government will not blink on the subject of the International Criminal Court. Perhaps I may remind the noble Lord, Lord Strathclyde, that any government with a proper judicial process—with proper rights of defence and a recognition that people are innocent until proven guilty—may try any case of this kind in its own courts about its own nationals. It is only where such cases cannot be adequately dealt with for one reason or another that the ICC comes into the picture. It is important to make that observation because, as someone with considerable respect for the American judicial process, I do not believe that miscreants, or others, who are involved in war-crime activities would not be properly tried in that country. Therefore, such cases would be unlikely to come before the ICC.
We on these Benches cannot fully accept that any country, however excellent its standards and however high its implementation of such standards, can be found never to be likely to be guilty of any crime at all in the international field. Would it were so! Let us be honest, every country has some bad apples. That must include the United States, and certainly this country. The great thing about the ICC is that it looks into such matters most carefully.
I have a few questions to ask the Minister on the two major issues. As regards weapons of mass destruction, I should declare an interest as a board member of Senator Nunn's nuclear threat initiative (NTI). In that context, I should point out that, according to NTI, Russia probably has the capacity to create 80,000 nuclear weapons. It is estimated that the great majority of the nuclear arsenal in Russia is still not fully protected. Anyone who has visited the Arctic Sea, or, for that matter, the Black Sea, will have seen deteriorating nuclear submarines in water up to their conning towers at any time. The situation is extremely grave; indeed, one could say that it is most frightening.
Can the Minister assure the House that the finances now being made available for the purposes of cleaning up Russia will enable those concerned at least to secure the most dangerous and vulnerable sites as quickly as possible? That is all the more important in the light of the fact that, since the US/Moscow/Russia treaty came into effect, the much more careful inspection and
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monitoring provisions of the original START treaties have been abandoned. It is an extraordinarily troubling situation.
Due to lack to time, I am unable to pursue that matter further. I shall conclude by asking the Minister one or two questions about Africa. We welcome the new 12 billion dollars for ODA announced at Monterrey, though that sum seems to have more than one function—half is to be used for Africa. The estimate of Kofi Annan is that Africa needs between 40 and 60 billion dollars a year to deal with its desperate problems. Therefore, 6 billion dollars is a relatively small sum of money. As regards the pursuit of dealing with corruption in government, which is a serious issue in Africa, and of dealing with money laundering, can the Minister assure the House that there will be full co-operation from western governments? I have to say that that has not been forthcoming in all G8 countries, especially as regards money laundering. Without such help, it is simply useless to expect African governments to do on their own what can be done only as a combined effort.
Finally, whatever happened to that wonderful vision expressed by the Chancellor of the Exchequer, Gordon Brown, at the US Federal Reserve Bank earlier this year? Can the noble and learned Lord the Leader of the House tell us whether that is still in play, or whether it has simply disappeared?
4.35 p.m.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams, for the general support, subject to the usual caveats and questions, that they offered. The noble Lord, Lord Strathclyde, made a point with which I entirely agree; namely, that there are dictators who have despoiled Africa and corrupted the economies. That is the whole purpose behind the present approach. It is legitimate—indeed, it is right and ought to be mandatory—that, in future, countries that seek aid from those who are wealthier should recognise the collateral obligations that that aid is properly spent, and that internal judicial systems are there to work.
It is very important that there should be internal judicial systems. In my experience, no country will ever be able to attract inward investment if there is no mechanism for the proper independent, non-corrupt, impartial settlement of civil disputes. Allied to that—and this almost always follows—is that if you have an independent, non-corrupt civil system and an independent civil judiciary, it is inevitable as night follows day that a criminal system will have to be established.
The noble Lord raised the question of Zimbabwe and asked why there was so little reference to it in the Statement. I should tell him that it is essentially because the House of Commons and the House of Lords have been given a Statement from the Prime Minister in order to bring them up to date with the present situation. I see that the noble Lord, Lord Blaker, is in his place. I believe that he would agree

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with me that the question of Zimbabwe has frequently been discussed, and rightly so, in this place. It was raised at the G8 summit. I do not pretend that it was the core of the discussion but, if any country wants assistance of any sort, it must conform to the norms of a civilised society, and I do not refer to the United Kingdom alone. It must conform to what general international norms dictate.
The noble Lord, Lord Strathclyde, asked for definitions of "independent commercial legal systems". It is not possible to have one-size-fits-all; nor would one wish it to be so. After all, we are a very close colleague of the United States, but the system in that country is not the same as the one that applies in this country. Indeed, its systems are not the same as ours because some of them are Roman law systems in the former states that were French or Spanish properties, while others, which did not have that good fortune, have common law open systems like ours. Their laws are different: one size will never fit all. However, one can have a peer review like the one that is due to commence in Africa. This is a very long journey. No one pretends that it will happen overnight.
The question of the International Criminal Court was raised by both the noble Lord and the noble Baroness, though in slightly different forms. The noble Lord asked whether I had any regrets in this respect. I had the great pleasure of assisting my noble friend Lady Scotland in the passage of the ICC legislation through this House. We were an early signatory to the treaty: we ratified, and we did right. The noble Lord asked whether it was perhaps disproportionate to think that members of the armed services "acting lawfully" might be subject to prosecution. No member of the Armed Forces acting lawfully has any prospect at all of being arrested or prosecuted.
The noble Baroness is quite right in what she says. We spent a little time in our debates on—I am afraid to fall into jargon, but it is useful shorthand—pointing out that the statute relies specifically on complementarity. Its jurisdiction does not even begin to be thought about until the internal national jurisdiction has displayed the bad faith of which the noble Baroness spoke.
As regards the noble Lord's question, which was not rhetorical, I shall, nevertheless, offer a rhetorical answer in return. Is it to be said that the servants of international organisations should be free of all jurisdiction if those countries that could take jurisdiction refuse it? I know of no state organisation all of whom's agents are perfect. If one is dealing with gross crime, it seems to me that those alleged crimes should not go unpunished. I believe that there is an international criminal tribunal sitting at present. I know it to he true: I have been there. Indeed, I was present on the day that Madame Plavsic surrendered herself to the jurisdiction. I do not believe that the United States has ever objected in principle to that tribunal or to other tribunals that have been set up. The world has long changed. Domestic jurisdictions are not always sufficient, and if they are not, the gap in law must be filled. I do not regret the passage of the Bill; I rejoice in it. It was a distinct step forward.
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I believe that I have dealt with the questions of the noble Baroness on the International Criminal Court. The noble Baroness and the noble Lord asked about Russia. It has significant problems. The only way to deal with them is to behave co-operatively. President Putin shows himself to be a statesman and not an internal politician. He wishes to join the G8; he wishes to have the presidency, which has been agreed; and he is determined on reform in a country that has had no significant change for the better part of a century. Russia has vast problems and the international community must engage in them. The capability of weapons or the dangerous relics of nuclear armaments must be dealt with in our interests as well as in the interests of Russia.
The noble Lord, Lord Strathclyde, asked about transport. A start has been made. We have been supportive of the initiative for the compulsory fitting of reinforced cockpit doors to all passenger aircraft and the last plane on which I flew—I believe that it was a Virgin plane—had such a door and not just because I was a passenger! Russia retains a reserve on some of the ambitious dates put forward. We have to deal with ship and port security plans—it is not just a matter of dealing with aircraft—and we have to deal with systems of automatic identification for ships. Some are in place and some are not.
The noble Lord and the noble Baroness asked about the Middle East. Our attitude, which is plain, was set out at Seville: we wish an end to the occupation and the early establishment of a viable democratic, peaceful and sovereign state of Palestine on the basis of the 1967 borders, if necessary with minor adjustments to be agreed. I repeat what I said quite unambiguously that there is no prospect of this Government, or any successor government, abandoning the absolute right of the state of Israel to exist within stable and secure boundaries as a democratic state in a part of the world where democracy is not universal.
Recently the Foreign Secretary said that it is not within our gift to choose the leaders with whom we deal. There are many leaders of foreign countries with whom we are not entirely in sympathy, but we do not have the luxury to pick and choose.
In relation to Afghanistan, the noble Lord, Lord Strathclyde, asked about drugs. It is not simply a matter of destroying crops. We need to build local capacity in the security sector and we need to rehabilitate the rural infrastructure with roads and irrigation. That is the work of many years, as the present situation is the consequence of decades of wilful destruction. We need to introduce modest schemes, such as micro-credit schemes, to underwrite small loans for small farmers and we need agricultural input provision, such as seed, fertiliser, tools and expertise. It is not simply a matter of armed forces, although they discharge their duties magnificently.
The noble Lord asked about academic freedom. I believe that the objection to the Export Control Bill has been wholly misconceived, as may be realised.
The noble Lord spoke about Africa where there is a fantastic opportunity. NePAD is capable of being made to work. The noble Baroness spoke of the

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Secretary-General's figures, which are substantial—up to £6 billion a year. It is true that the Secretary-General spoke about much more, but I understood that he was speaking about total investment and we are hoping to provide the infrastructure upon which substantial increased investment can be based.
The noble Lord asked about the cost of the G8 summit. The cost to the United Kingdom Government must have been one of the smallest because our delegation was one of the smallest. It was of the order of 25 to 28 officials with about five security people.
The noble Baroness asked whether evidence relating to Mr Arafat's involvement in terrorism existed or whether it would be published. I do not know the answer. I read various assertions, followed by vigorous counter-assertions and I have no personal knowledge or any means of judging whose assertion is correct.
I have dealt with Bosnia. I take the point about the significant numbers of weapons in Russia. I cannot guarantee that they are fully protected, although substantial resource is being provided for clean up and protection in Russia.
On the specific question of the noble Baroness about the Chancellor of the Exchequer, I believe that my right honourable friend Mr Brown made it clear that we would need additional money for Africa, with which we agree. Donations will not be enough. We want engaged investment, which the wisest, most prudent and most imaginative of the African leaders recognise. It is still in play; it has not been abandoned. I accept that the Statement is only a summary of substantial achievement, but it is an optimistic summary.
4.46 p.m.
Lord Hughes of Woodside: My Lords, while it is right that corruption in all its forms should be denounced, and without seeking to defend dictators in Africa, does my noble and learned friend accept that fault in relation to Africa lies not entirely within Africa? Does he recall the years of the Cold War when the dictatorship in Zaire was fully supported by Western governments because it sat on the right side as far as Communism was concerned? Does he also recall that decades of strife in Angola were artificially fostered by the United States arming the UNITA rebels of Savimbi? Perhaps we may take comfort from the fact that the problems in Africa are now being given serious consideration. I welcome the support promised to Angola so that it can stabilise a long-lasting peace.
In terms of support for Africa I believe that we have moved a long way. Some of the rather mean comments about the summit have to be set aside the words of President Mbeki of South Africa who says that this is the end of an époque of colonialism and neo-colonialism. Although it may be a long time before that journey is completed, at least we are making an honest start.
Lord Williams of Mostyn: My Lords, my noble friend is quite right. If one wants to attack bad
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governance and corruption in Africa perhaps one should occasionally look at the beam in the eye closer to home. He has a vast experience of South Africa and knows as well as I do that the first free elections took place only in 1994, which was barely eight years ago. When one considers that extraordinary achievement, he is right to challenge those who are mean-hearted and mean-spirited.
My noble friend has made a soundly-based point about Angola. Too often the countries of Africa have been used as the playthings and the client states of other states which have behaved ignobly. The other evening I had the pleasure of speaking to the Ambassador of Angola who represents his government's view that there is a vast amount to do, and that, although the war has recently ceased, they are intent on further progress.
Let us consider the example of Mozambique on which the Prime Minister reported in his Statement. There has been a terrible, remorseless civil war for many years and tragedies and catastrophes due to the weather and floods. Those are significant factors and we should not overlook them.
Lord Blaker: My Lords, is it not extraordinary that neither in the two press conferences given by the Prime Minister nor in the two documents specifically about Africa published by the conference was Zimbabwe mentioned, though four other African countries which have had troubles were mentioned by name? Is not the situation in Zimbabwe going from disastrous to catastrophic, whether in the realms of human rights, the rule of law or now starvation? Would not this have been a good opportunity for the G8 governments to have impressed on the African leaders who were present the importance of their making clear to Mr Mugabe the importance of his abiding by the African statement,
"good governance and human rights as necessary preconditions for Africa's recovery"?
Is not the reality that Mr Mugabe will take this conference as a licence to carry on exactly as he wishes?
Lord Williams of Mostyn: My Lords, I bow to no one in my respect for the noble Lord, Lord Blaker, in his concerns, about which I have often spoken in this House. I do not believe that Mr Mugabe regards himself as being in need of any sort of licence. He has determined upon his activities, which have been roundly condemned in every section of this House and by the British Government on many occasions. References are made to the need for humanitarian concerns and respect for human rights to be put at the forefront of the NePAD partnership.
It is true that there is no specific reference to Zimbabwe in the Statement which I read out. But time after time in this House, to my knowledge and that of the noble Lord, my noble friends Lady Amos and Lady Symons have repeated the Government's view on Zimbabwe. There comes a time when one may need

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to focus on other things, particularly as there has been constant reporting on Zimbabwe in this House virtually on a weekly basis.
Lord Alton of Liverpool: My Lords, I welcome what the Leader of the House and the Statement on the summit said about tackling endemic poverty in Africa. The figure he announced today, which was announced previously, of 6 billion dollars additional funding is to be welcomed. Can he set out to the House precisely how that will be linked to anti-corruption measures and whether we will retaliate directly against governments by reducing aid programmes if there is corruption in those countries?
The noble and learned Lord said that he dislikes the way in which African countries have been used as playthings and client states. Does he agree that the sale of arms, particularly to places like Liberia, Angola, Mozambique, Rwanda and the Sudan, has inflamed conflict in those areas over the years and debased the countries which simply continue to sell arms without any concerns for the consequences? Indeed, in the sale of sophisticated air traffic control systems to countries like Tanzania we have played a part in not tackling the root problems of poverty but rather selling devices which will be of no real use to the people of those countries.
The Statement made reference to the WTO Doha round. I particularly welcome what the Leader of the House said today about the emphasis that will be placed upon trade. Does he agree that the best way in which to help African countries pull themselves out of this systemic and endemic policy is by encouraging fair and free trade with African countries?
Lord Williams of Mostyn: My Lords, I agree with what the noble Lord, Lord Alton, said in his concluding remarks; that is the way forward. We are trying to offer not simply financial assistance, but also technical and resource assistance, in which we have significant expertise fortunately, to build an appropriate infrastructure whereby our colleague countries in Africa can develop investment and fair trade themselves. It is 6 billion dollars a year so it is a substantial figure. We shall have to work in partnership with the African countries, recognising a number of matters. First, that they are sovereign nations; secondly, that we are entitled, in all decency and with all due thought, to wish their co-operation. A nation which is providing assistance is entitled morally to say that these are conditions for the assistance. It is not a case of punitive sanctions or punishment; it is a case of a co-operative venture. After all, NePAD stands for a new development and the "P" is for "partnership".
Lord Brooke of Sutton Mandeville: My Lords, in relation to the contribution by the United Kingdom to the plan for Africa, can the Minister say whether what I understood to be the incremental element in the British contribution comes from a rearrangement of the spending plans of the Department for International Development, from a reserve within that
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department, or from outside that department altogether and thus from the contingency reserve of the Treasury?
Lord Williams of Mostyn: My Lords, I can answer the noble Lord with the assistance, I say readily, of my noble friend Lady Amos who was present at the summit—and I like that benefit. In 1997 the aid budget to which the noble Lord referred was £332 million. It is rising to £632 million. By the year 2006 it will be £1 billion. So it is not simply a case of rearranging the cheques; it is a significant advance.
The Earl of Caithness: My Lords, does the Leader of the House agree that the Statement is intended not just to update Members of Parliament in both Houses but is also a Statement to the rest of the world as to how the Prime Minister saw the summit? If he agrees that that is the point of the Statement, on reflection does he consider that it might have been better for the Prime Minister to have included a serious attack on Mr Mugabe and other African leaders who have failed to follow the excellent standards that NePAD wishes? Indeed, the noble and learned Lord said that an impartial judiciary is an essential to any government. That is certainly not the case in Zimbabwe and a good many other African countries. The Statement gives the impression that the whole of Africa will benefit, whether or not the countries comply with the good governance criteria. Does the Minister feel, therefore, that it might have been better to have set out that position a little more clearly?
Lord Williams of Mostyn: My Lords, no. I know that one of the unfortunate aspects of this procedure is that the Statement is not available to many noble Lords ahead of time or indeed at all. But I remind the noble Earl that copies of all the documents agreed at the summit have been placed in the House Libraries. In the nature of things, particularly as we have other important business today, this is simply a summary of what was agreed. One of the documents in the Library is the G8 Africa Action Plan.
I take up the noble Earl's point. The New Partnership for Africa's Development offers something different. African leaders have personally directed its creation and implementation. They have formally undertaken to hold each other accountable for its achievement. They have emphasised good governance and human rights as necessary preconditions for Africa's recovery. That deals fairly and squarely with the noble Earl's question as to whether or not they receive the money for not doing anything. It is clearly present in paragraph 4 of the action plan, which states:
"this will lead us to focus our efforts on countries that demonstrate a political and financial commitment to good governance and the rule of law, investing in their people, and pursuing policies that spur economic growth and alleviate poverty".

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Many would think that that was particularly directed at, among others, Mr Mugabe and Zimbabwe, and I would be one of them.
Lord Thomson of Monifieth: My Lords, is the noble and learned Lord aware that there will be a wide welcome for the emphasis on education in the Africa plan? Does he agree that while the goal of universal primary education is of course a totally worthy one and deserves every support, educational aid needs a wider concept? Education and good governance will be extremely important in making a success of the partnership plan. Does he also agree that the ultimate test will be that the educational element should be an increasing element and should be seen in the widest possible context?
Lord Williams of Mostyn: My Lords, I totally agree. The original aim to which the noble Lord referred is a noble one, though it is rather distressing to call it a noble ambition that children should be able to look to the certainty of primary education. However, the noble Lord is quite right; it must be assistance by way of education and good governance and we must remind ourselves that we are living in an IT age where primary education will form a less important component.
When the noble Lord speaks of education and good governance he is quite right. But I can think of a number of western countries where non-corrupt good governance is of fairly recent origin.
The Lord Bishop of Guildford: My Lords, the noble and learned Lord's repetition of the Statement is enormously welcome among those who work in NGOs and civil society organisations. I chair the board of Christian Aid. I am sure that there will be huge welcome for what has been said about Africa in particular.
I know that in Africa there will be many who would have liked a higher level of commitment of resources to the problems. But most people will welcome the Statement for what it represents in terms of engagement with the issues. I want to stress that and to ask a question with regard to the Middle East. I know that that is a fractious issue at the moment, but the Statement, even in its brevity, seems to commit the G8 to engagement with the issues, including the United States' leadership. That surely is the most significant part.
Would the noble and learned Lord like to comment on the fact that for millions of Palestinian people—who have lived with poverty, oppression and the denial of their rights, as they see it, for a long time—it is difficult to connect with a policy which seems to have been framed in terms of "who we will not talk with" rather than in terms of addressing how we might resolve some of those issues?
Lord Williams of Mostyn: My Lords, the right reverend Prelate is right in both approaches.
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Engagement with the issues is critical. We are fortunate in this country that, because of our history over the past century, we have a knowledge of those parts of the world that we were formerly engaged with in a non-co-operative sense. We have the historical traditions which enable us to offer real engagement with the issues. This is not a party political point at all. I believe that we in this country should rejoice that it is significantly as a result of our initiatives that we shall be engaged in the tasks which have been mentioned.
It is true that many Palestinians feel that they have been left behind and left out. I reiterate what the Prime Minister said and what the meeting at Seville agreed on. There are the two ambitions for the state of Israel and the state of Palestine. Our Government's efforts are entirely devoted to trying to assist both objectives to become realities. But I cannot pretend for a moment—it would be idle to do so—that there is any solution immediately on the horizon.
Lord Richard: My Lords, the summit has obviously gone extremely well so far as concerns Africa. The Prime Minister and the Government deserve a great deal of credit for that.
I turn to Bosnia. Did the Government—the Prime Minister—get any indication from the United States at the summit that it would take this somewhat abrupt position in the Security Council? Did we have any indication at all, for example, that the Americans were claiming total immunity for their people from the jurisdiction of the International Criminal Court? Did we have any indication that they are prepared to bring UN peacekeeping operations to a standstill in order to assert that immunity? If they did give such indication I should be interested to hear about it; if they did not, I am afraid that I should also be interested to hear about that.
Lord Williams of Mostyn: My Lords, we knew, obviously—it has been not least a matter of public record—of the United States' serious reservations about the International Criminal Court. If I remember rightly, there were proposals—how far they got I am not entirely certain—that legislation should be introduced. Certainly, at least two senators and several congressmen were interested in introducing legislation into the United States' Congress which would have fairly dramatic consequences for the ICC. What has happened is that the United Nations' mission in Bosnia and Herzegovnia has been rolled over—not for very long; it was a 72 hours extension, until 3rd July. I can assure my noble friend Lord Richard and the House that we are urgently trying to look for a solution that meets all our needs.
The United States has been making a contribution in Bosnia. Of the 18,000 SFOR troops, 2,500 are US troops. The noble Lord is quite right, there is a difference of view, of emphasis and of nuance in our respective approaches to the International Criminal Court. The British Government believe that those concerns are not properly founded for the reasons given, among others, by the noble Baroness, Lady Williams.

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I personally suggest respectfully to my American friends—some of whom are lawyers—that they have mistaken what the statute means. But we have made our position perfectly plain. We have signed and ratified. We had an interesting debate in the Chamber. A large number of states have now ratified. But I stress that the statute allows complementarity, and, indeed, insists upon it.

Justice (Northern Ireland) Bill
5.6 p.m.
Consideration of amendments on Report resumed.
Clause 3 [Judicial Appointments Commission]:
Lord Glentoranmoved Amendment No. 5:
Page 2, line 32, leave out "five" and insert "six"
The noble Lord said: My Lords, the amendment seeks to change the balance in the make-up of the Judicial Appointments Commission from a majority of lay people to a majority of the judiciary. There will be, I understand—I have done this count several times because there was a certain amount of confusion in Committee-13 people on the commission. It is to be chaired by the Lord Chief Justice. I am assured that barristers and solicitors are not to be considered part of the judiciary. I see the noble Lord, Lord Desai, disagrees with my numbers.
Lord Desai: My Lords, I am sorry, I thought that Amendments Nos. 3 and 4 had to be withdrawn before the noble Lord could move Amendment No. 5. Is the noble Lord moving Amendment No. 5?
Lord Glentoran: My Lords, as I understand it, I am moving Amendment No. 5.
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Glentoran, is quite right. We disposed of the other amendments earlier.
Lord Glentoran: My Lords, I thank the noble and learned Lord. For a moment I thought that I had lost it—it would not be for the first time—at the Dispatch Box in your Lordships' House.
I go back to my argument. There are to be 13 people on the commission. Without going into the detail again, six will be from the judiciary and seven will be lay people, albeit including a barrister and a solicitor.
Our last debate, I believe, strengthened my case. In that debate all noble Lords, including the Government, agreed that for the past 30 years the most solid and most clearly independent rock in the democratic governance of Northern Ireland has been the judiciary.
That debate decided the relative position, selection and so on of the High Court judges, who, I understand, can also be judges of appeal. It is vitally important that we do everything we can to defend the independence of the judiciary. It is clear that in relation to appointments that is so. A quick reading of the
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"Duties of Commission" on page 30 of the Bill shows that those duties are legal and to a large extent technical. To place those duties on a commission which is a lay commission—the majority of its members lay, with guidance by a minority of judiciary—is illogical.
I move the amendment because the whole logic of the two short debates that have already taken place today is that the judiciary is the finest independent body in the Province. The noble Baroness, Lady Scotland, said in Committee that lay people would bring serious, interesting and good advice to the commission. I entirely agree. But that lay advice and intelligence should not form a majority.
Baroness Scotland of Asthal: My Lords, before the noble Lord sits down, I do not know whether he has misunderstood, but he referred to page 30. He will of course know that that refers to the Law Commission, not to the Judicial Appointments Commission.
Lord Glentoran: My Lords, I accept that. I beg to move.
Lord Maginnis of Drumglass: My Lords, I support the amendment. It is even more important than it was about an hour ago, as we have now ensured that the appointment of High Court judges, the very core of the judicial process in Northern Ireland, will be a matter for the commission. It is therefore inappropriate that we should legislate to provide that the majority within the commission will be members of the laity.
There has been a tradition for senior judicial appointments in Northern Ireland. I hope that the Government are not going to take us through Report by pulling in a little bit of what happens in Scotland; including another little bit of what happens in England and Wales; but discarding a little bit of what has traditionally happened in Northern Ireland, while adhering to other arguments pertaining to different factors. In Committee, I discovered little consistency in or justification for the arguments used by the Government for aspects of the Bill.
I must ask a question that I shall consistently ask today and until I receive an answer: does consideration of such external pressures mean that we cannot have a majority of those who are best qualified—some might say, those who alone are qualified—to make a judgment on the appointment of High Court judges and others in Northern Ireland? The change that we seek is not huge; we ask only for one further judicially qualified person to be substituted for one lay person. That is a reasonable request. It would restore the previous balance, albeit under a different form, for appointing High Court judges.
Perhaps I put too fine a point on it when asking the question about external pressures; perhaps I should press the noble and learned Lord the Lord Privy Seal and the noble Baroness, Lady Scotland, on what pressures and considerations feature in consultation with either the judiciary or members of the government in the Irish Republic.

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If there were a majority of judicial members on the commission, I should have a great deal more confidence in its professionalism and integrity, which can be, and over 30 very difficult years has been, measured. I support the amendment. If one deputy county court judge were added to the judicial members, that would satisfy most of us that matters were being deal with in a transparent manner.
5.15 p.m.
Lord Mayhew of Twysden: My Lords, without voicing the slightest criticism, of course, I am slightly surprised that Amendment No. 5 has not been grouped with Amendment No. 6. The arguments for the one are inextricably linked with those for the other. I therefore propose to make a speech that may be out of order; I shall now be told that it is.
Baroness Farrington of Ribbleton: My Lords, I understand that Amendments Nos. 5, 6 and 7 are grouped together.
Lord Mayhew of Twysden: My Lords, I thank the noble Baroness. They are not grouped on my list—out of date, as usual. It is most reassuring that, in spite of myself, I am in order.
I remain unhappy about the Judicial Appointments Commission. I need not repeat that we have a highly respected judiciary. It is therefore worthwhile asking ourselves how that judiciary has been appointed throughout 30 or more years of supreme test. It is probable that the high regard in which the judiciary is held, on the basis of its record, arises at least in part from how it has been selected and appointed.
That system is operated by the noble and learned Lord the Lord Chancellor. If they do not know—for it is the fact—everyone will doubtless assume that the Lord Chancellor exercises enormous care in selection and in consultation with the people who are most likely to know whether a potential judge, a candidate for the judiciary, will make a good job of it. Those people have experience of the candidates through working with them, having them appear before them and being their colleagues. They are consulted on the basis of their relevant experience. In the context of public confidence in Northern Ireland, that system has the advantage of operating not only away from the battlefield but above the battle. That is no small advantage.
So the question is, "Why change?". If we are up against our old friend, perception, I contend that perception looks both ways. I do not know why the advantages that I have identified are thought to be outweighed by an untried and—I judge—unwanted innovation. Within the innovation, there is a built-in cause for anxiety. By what criterion is a lay member of the commission expected to discern the relative merits of a candidate for the judicial Bench? No matter how diligent that lay member was—in this country, people are very diligent, when appointed to such offices—he could, in practice, not know anything that could bear
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on the question of the merit of a candidate. Yet, the clause demands that candidates should be appointed solely on merit. How is a layperson to discern the merits or demerits of a particular candidate? I am not counting barristers or solicitors, who come from within the profession; they are dealt with as a separate category by the clause.
It is foreseeable that the inclusion of any lay members in the commission—let alone five—will conduce to a lack of confidence, rather than add to public confidence in the system. I say that because the public are clever enough to know that a lay member cannot, for the reasons that I gave, discern much in the way of merit. The public will assume that those members will, probably, have had regard to factors other than merit, notwithstanding the fact that the clause says that any appointment must be made solely on merit.
Lay members cannot assess the merit of a potential judge, any more than they could judge the merit of a potential surgeon. There are not many of us in the Chamber who would wish to see our potential surgeons selected because they reflect the community and chosen, in part, by the laity. Will it not be assumed that the lay members have been influenced by something else? People in Northern Ireland have too much experience of such "something elses", and it is a mistake to allow them to taint a hitherto unblemished system, particularly such a vitally important one.
Those are my misgivings about the commission as it is to be set up. If we are to have lay members, there should be four, not five. The judicial members should be not five, but six.
Lord Brooke of Sutton Mandeville: My Lords, I support what my noble friends have said about the amendment. I did not have the pleasure and the privilege of being present at the first day of Grand Committee. I was in attendance upon the American ambassador, who was going about his lawful occasions.
I missed this debate in Committee, but I have, of course, read it. In moving the amendment, my noble friend Lord Glentoran quoted the review and its suggestion as to what the commission should consist of. The noble Baroness, Lady Scotland of Asthal, will recall that the review recommended four or five lay members. When the noble Baroness replied to my noble friend, she sensibly recounted how the commission would be made up and added some detail about the judicial members. She concluded that analysis with the following words:
"We think we have the balance right".
Now, because I was not present in Grand Committee, I cannot know whether the charm with which the noble Baroness made that remark and subsequent remarks enabled her to skate over some slightly thin ice in the logic of her argument. On the basis of my experience with her on other occasions in Grand Committee and today, I would have no difficulty in believing that that charm was exercised. However, after she said those words, she did not

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adduce any further argument as to why the balance was right and why five lay members were better than four, a contingent suggestion made by the review.
The noble Baroness did speak about why lay members were useful on such a commission, and she concluded that part of the analysis with the following words:
"The five lay members may add something of real value".— [Official Report, 11/6/02; col. CWH 23.]
I agree that, in logic, it is possible that a fifth member would add 25 per cent—or more—to the value of the work done by the other four, but the noble Baroness's concluding statement does not, of itself, reinforce her earlier remark about having the balance right. I hope that the noble Baroness will fill out her argument as to why the balance is right. I diffidently suggest that she did not do that in Grand Committee.
Lord Desai: My Lords, I find the argument somewhat strange. As far as I can see, there will be the Lord Chief Justice and five commissioners nominated by the Lord Chief Justice. There will also be a barrister and a solicitor. From the trade union of lawyers and judges, there will be seven people, plus the Lord Chief Justice. There are five lay members, so my arithmetic tells me that things are stacked eight to five against lay members.
It could be argued that there should be no lay members, as the noble and learned Lord, Lord Mayhew of Twysden, suggested. That is a different argument, which could, perhaps, be made in the context of another Bill or another devolved administration. However, in this context, it is possible to suggest that, good as the judiciary has been in the past 30 years, it would still be better to have a judiciary that was not only meritorious but acceptable to the community.
I shall cite the example of what happens in England. We might think that the noble and learned Lord the Lord Chancellor and his predecessors, in their infinite wisdom, always appointed the best people. However, those people are, largely, men—white men—probably from Oxbridge. They may be meritorious, but there is little regard for other elements. It is not said that women or people who have not been to Oxbridge or people from the ethnic minorities do not have merit; it just so happens that our beautiful, neutral, impartial system ends up getting only Oxbridge people. It happens in every system.
In Northern Ireland, more than anywhere else, a system that was—from one point of view—above the battle, as the noble and learned Lord, Lord Mayhew of Twysden, said, was—from another point of view—part of the battle. We must let bygones be bygones, and it is for that reason that I suggest that there is no conflict between selecting people on merit and having a lay element to tell the specialists that, in considering two people of merit, we should think of other factors. It is easy for a closed trade union of specialists to select
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only their own clones. Perhaps we ought to change; perhaps the current balance—eight to five —is not all that bad.
Lord Tebbit: My Lords, I never like to disagree with the noble Lord, Lord Desai. He is unique—particularly so today, as he appears to be supporting the Government's position from the Back Benches. I am also reluctant ever to take the part of the lawyers against the laymen. The noble Lord, Lord Desai, is right: the lawyers are a difficult closed shop. Frequently, they are highly dangerous people. We suffer far too much with them. However, even with the—I almost said prejudices, but they are not—feelings borne of experience that I have, when called upon to decide whether I would trust members of the judiciary and the legal profession or the nominees of the First Minister and the Deputy First Minister, particularly thinking of who they may well be in a couple of years' time, I have to come down on the side of the lawyers. It hurts me to say so and I hope that it does not set a precedent for me, but that is the way I feel.
5.30 p.m.
Lord Kilclooney: My Lords, independent persons in Northern Ireland are an endangered species. I have served on various boards and commissions in Northern Ireland with them. At present, I serve on a new one called the Northern Ireland Policing Board and we have nine so-called "independent" members. They were recently involved in the appointment of a new chief constable in Northern Ireland, but they had no experience and therefore had to be trained. These independent members spent many weeks undergoing training on how to appoint a chief constable.
They then proceeded with the selection of a chief constable and what happened was absolute chaos. First, people involved in the appointment leaked the events to the press, in particular the Irish Times in Dublin. Secondly, the appointment was seen to he biased. Thirdly, one of the candidates threatened to take a case for religious discrimination. I have to say that my experience of independent members of the new Northern Ireland Policing Board is not very good. On Saturday morning, one so-called "independent" member actually took part in a BBC Radio Ulster programme on behalf of the SDLP. So much for his independence.
I should like to return to the system w.e had previously in devolved Northern Ireland pre-1972 whereby the Lord Chancellor appointed those judges, not the people who present themselves under the facade of being independent.
Baroness Ramsay of Cartvale: My Lords, I rise to say that not for the first time in this House I find myself provoked in a gentle way by the noble Lord, Lord Tebbit. I rise to speak for myself, but I believe that it is also the case with other colleagues on these Back Benches. If we disagreed with the Government, we

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would speak. As we do not disagree with the Government, we see no point in wasting the time of the House.
Lord Ackner: My Lords, I did not attend the Grand Committee. I have an excuse for that, but I shall not weary your Lordships with it. However, I have carefully read Hansard and I have seen the arguments portrayed. In my efforts to be a realist, I do not resist the existence of laymen on the commission—that is the flavour of the year in which we live and it would be foolish to try to put things back where they were—but I just do not understand why there is a majority of lay people.
I can well understand that there are one or two lay people in order to make what occurs transparent to those who are not members of the judiciary—and that serves a most useful purpose—but why the majority? The search is for the greatest merits in the candidate. I do not suppose that the lay people will have any chance of seeing the QC, who is likely to be one of the proposals, in action in court if he be a Recorder or some other temporary judicial person. They will have no specific experience of him. In the small profession in Ireland, it is easy to lose a good reputation and what is a person's reputation is his stock in trade. That will be known to other members of the profession, but the lay person will not know. Certainly not all five will know—it may be only one or two.
I do not understand what is the function of the majority. Obviously something underlies it, but it is a little like—
Baroness Scotland of Asthal: My Lords, I am grateful to the noble and learned Lord for giving way because I believe that he is labouring under a misapprehension. There are six judicial members and we include among them the one lay magistrate. Of course he will sit in a judicial capacity as a lay magistrate. We then have a solicitor and a barrister, both of whom noble Lords will know are conversant with the law. There are then five lay members. So in fact, one could say in terms of lawyers versus non-lawyers, using the football analogy, that we have them eight:five.
Lord Ackner: My Lords, I am not quite sure of the purpose of the interruption, particularly as the Opposition were called to recognise the limitations in the second stage of the Bill. A number of questions were preceded by the phrase, "Before the noble Baroness sits down", a formula which I thought was frequently used but which is not apparently available on Report. That is news to me.
In any event, the intervention by the noble Baroness does not bear upon the amendment. The reason for the amendment is to translate a majority on the judicial side. They are now a minority of one; the lay people succeed by an extra one. It is a little like saying to the passengers on a liner, "You know nothing about the
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technical side of this ship, but you take over the engine room. Those who do know about it will go up to the cabins which you occupied".
I should like the noble Baroness to explain to the House exactly what is the function of the lay people, except to see that the system is fair; that the decision appears on the face of it to be sound and reasonable; and to ask any questions which they may believe have not been asked by the lawyers who have expressed their views. I hope that we will be told why the particular numbers were hit upon. There must be some explanation, but, as has been pointed out already. to say, "I think we have just got the balance right", is a conclusion and not an argument.
Baroness Park of Monmouth: My Lords, in supporting the amendment I shall quote from the views of the SDLP and Sinn Fein when they were discussing this very issue:
"The SDLP would prefer to see more lay members than judicial members because the danger in the system that we are reconstructing is that the judiciary will have too much influence, power and control in the appointment of judges. As politicians, we in the SDLP believe that that is too much power to give to that body".
Sinn Fein warmly supports that view and states:
"One can reasonably anticipate a corporate approach to the appointments process. There is a very real possibility of little or no change and another lost opportunity".
I have quoted that only to demonstrate what could happen if we do not foresee the dangers in this part of the Bill.
Baroness Scotland of Asthal: My Lords, I hope that I will be able better to satisfy noble Lords in relation to this issue. As I said in Grand Committee, the review struck a careful balance in its recommendations. During the consultation exercise, some argued that the lay involvement went too far—as some noble Lords have argued today—while others argued that the involvement did not go far enough. I do not hesitate to repeat what I said on the previous occasion: I believe that the provisions set out in the Bill have the balance about right.
On a number of occasions I have been asked to explain the purpose of the lay members and what they add to the process. Not least I have been asked that by the noble Lord, Lord Brooke, who, with his customary charm, complimented me on my charm. Perhaps we should have a mutual admiration society in that regard.
I could not put it better than to echo the words of the noble and learned Lord, Lord Ackner, a few moments ago. He set out the basis on which the lay members add something. However, I should say—in particular to the noble and learned Lord, Lord Mayhew—that, unlike surgeons, judges operate in the court to which lay people become subject. Judges are to be seen, to be commented on and they have imposed on them a charge to communicate with the public the rightness of their judicial office.
Noble Lords know that, over a period of years, concerns have been expressed that, although many judges are sufficiently erudite in considering

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judgments, they do not always communicate their thinking to the public at large in the way that perhaps one would best like to see such statements delivered. So, when choosing between two excellent candidates, both of whom may have the advantage of a first class brain, an ability to define the law and to express themselves with precision in judicial terms, sometimes it is helpful to choose the candidate with the greater humanity. That can be judged as easily by a lay member as by a judicial member.
One must look at the question of confidence, not only in relation to Northern Ireland but more widely. Our judges must win the confidence of the public. People must be confident that judges are not too remote, that they understand the ordinary cares of the everyday man. The public must be confident that judges will speak simply and in a straightforward manner, using the plain language that is necessary. Noble Lords will know already that the greatest lawyers do use plain rather than convoluted language. All those factors can be judged with precision by a lay member. Courtesy can be so judged, as can integrity.
Lord Ackner: My Lords, I thank the Minister for giving way. It sounds as though the function of the commission is to promote the High Court judge to the Court of Appeal. Therefore, people come to watch him and find that he may not enunciate what he wishes to do with a characteristic clarity or has some other error. But we are not promoting judges up the judicial ladder; we are dealing with the appointment of someone who is not a judge to the position of a High Court judge.
5.45 p.m.
Baroness Scotland of Asthal: My Lords, the noble and learned Lord has it exactly right, but he or she has to demonstrate that they are able to communicate in a plain and easily understandable way. The noble and learned Lord has acknowledged the fact that it is now very much accepted that lay people will form part of the assessment process for many different bodies in many different areas of appointment. Indeed, when we consider disciplinary matters, lay members also participate in those. The reason why the "fashion"—as the noble and learned Lord put it—has changed is because it has been demonstrated that there is merit in including those who do not share the specialisation of a particular area. It is important to include that input in a determination.
Perhaps I may return to the numbers. The numbers are fairly balanced. As I remarked earlier, one will have six judicial members, in which I include the lay magistrate. That is because the lay magistrate performs a judicial role. When a lay magistrate serves on the Judicial Appointments Commission, he or she sits in a judicial capacity as a judicial officer and cannot be viewed as a "lay" person, in terms of being outwith the judicial process.
One has two members of the profession, both of whom will be legally trained. One can suppose that, in the ordinary way, they would be excellent representatives of the two sides of the profession. Lastly, there are five members who could properly be
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described as "lay", having no legal or other appropriate training. The number of five lay members was chosen rather than four better to provide the reflectiveness required. Such reflection of the community at large is easier to achieve with the larger number. As I have pointed out already, we believe that the balance is eight 'to five and not, as has been suggested, either equal or including a smaller number of lawyers.
We believe that the lay members will bring a valuable perspective and alternative skills to this difficult process, in particular in the situation of Northern Ireland. It is important that the public is confident about what is transpiring, as well as being confident that the balance it wishes to see struck is being maintained.
I turn now to Amendment No. 7. Noble Lords seek here to stipulate that a deputy county court judge shall be one of the judicial members of the commission. Again, as I pointed out in Committee, this would go against the review, which recommended one judicial member from each tier of the judiciary, carefully balancing the number of legal representatives against the number of lay representatives. Noble Lords will know that a deputy county court judge does not form a separate tier of the judiciary. For that reason, I ask for the amendment to be withdrawn.
I should tell noble Lords that the people currently making up the "lay persons" sitting on judicial interviews are departmental officials or retired officials. That participation of a lay element in the judicial process, in the choosing of our judiciary, is already in place in our system. We are not seeking to put in place anything terribly new here. However, we are seeking to comply with what is now taken as good practice and to follow as closely as we can the recommendations of the review.
Lord Tebbit: My Lords, the noble Baroness states that there is nothing particularly new about the concept of lay persons in this role. What is rather different here is that it will not be a Minister in a department nominating officials to serve as lay persons, but gentlemen 'with a long history—in at least one case—of involvement in terrorism.
Baroness Scotland of Asthal: My Lords, on that point, I cannot add any thing beyond the comments I have made today and previously in Grand Committee. To recite the arguments again would not take us any further.
As I have said, we think that we have the balance about right. I see that the noble Lord, Lord Brooke, wishes to speak.
Lord Brooke of Sutton Mandeville: My Lords, the Minister says that they have got the balance right., but the review body put forward the suggestion that if you took the smaller figure, four, you would have four lay members, two members of the professional bodies and six judicial members. The commission would have been equally split and the Lord Chief Justice. sitting as chairman, would have the deciding vote. By moving to

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five lay members, that deciding vote of the Lord Chief Justice has been taken away. Those who are non-judicial—a phrase which appears in the clause and the schedule—would be in the minority in the group.
Baroness Scotland of Asthal: My Lords, five was chosen because it was felt that that number would better reflect the breadth of view needed through the lay membership. We do not accept that there will be the straight vote indicated by the noble Lord in his summation of how it will fall out. Of course greater weight should properly be given to the views of those with the widest knowledge of these subjects. It is likely that that will rest heavily with the Lord Chief Justice. Ultimately, his recommendation will determine who is appointed. I am sure that noble Lords will agree that it is highly unlikely that the Lord Chief Justice will exercise his judgment in a capricious or ill thought-out way. The commission will thicken his understanding and bring perceptions and information that he should properly take into account before making his determination, but it would be wrong if I allowed the House to proceed on the premise that there would in some way be a straight vote.
Lord Maginnis of Drumglass: My Lords—
Baroness Scotland of Asthal: My Lords, I remind the House that we are at Report stage and not in Committee.
To conclude, The review recommended "four or five"—it did not state "four"—and, in accordance with the review's recommendation, the Government have chosen five.
Lord Glentoran: My Lords, I do not know whether it is out of order but the noble Lord, Lord Maginnis, wanted to speak before the Minister sat down.
Lord Maginnis of Drumglass: My Lords, I am grateful. My recent arrival in the House means that I am unpractised in its traditions, for which I apologise.
Before the Minister sits down, perhaps I may take up a point that she has made. I believe that she has lumped together the judicial members of the panel with the barrister and solicitor and suggested almost that they were of equal status. Most noble Lords will agree that among the judiciary—I have not known a case where it has been otherwise—there has been an acceptance that the authority of our courts derives from the Crown. But that has not been the case with our barristers. I believe that, quite recently, two barristers refused to take silk because they were asked to take the oath. If that is the case, then among that stratum of the legal profession—there is no reason why it should not apply to solicitors—there is something which places political objectives and political aspirations above and beyond the judicial considerations. I raise the issue to alert the Minister to that particular point.
Baroness Scotland of Asthal: My Lords, the point that I thought I had made clearly—I am content to
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make it again—is that the barrister and solicitor are not lay members because they are legally qualified. As such, they do not fall into the definition of "lay". They have a separate category. For the avoidance of doubt, the review recommended four or five lay members and around five judicial members. We chose five lay members and six judicial members. We have faithfully maintained the balance recommended in the review and I hope that your Lordships will be content with that.
Lord Kilclooney: My Lords—
Lord Williams of Mostyn: My Lords, I am sorry to intervene but the rules are clearly set out and we have not been following any of them. I know that this is a courteous House but the time has come when I must intervene. The rules in regard to debate on Report are fully set out in the Companion at paragraphs 6.121, 6.122 and 6.123 on pages 128 and 129. We had an extensive Grand Committee and no one can suggest that the issues have not been fully debated. We must abide by our rules on Report as a general courtesy to all Members of the House.
Lord Glentoran: My Lords, I thank all noble Lords and noble and learned Lords who have taken part in this extensive debate. I start where I propose to end. In an almost arrogant way, I am quite convinced—if I come across as arrogant, I make my apologies—that the Opposition have clearly won the intellectual argument today. There is absolutely no justification or clear argument for why the balance of membership of the Judicial Appointments Commission should be as it is. The noble Baroness is a good friend of mine and she knows that I would never wish to be rude to her, but she has tried to fudge the numbers and to pretend, in Northern Ireland of all places, that a barrister and a solicitor are something to do with the judiciary.
The Government strongly opposed their joining in the independence clause at the beginning of the Bill. The Minister said in Grand Committee that they cannot be independent; that we cannot organise a system where we can see that they are independent. They are, quite rightly, not independent—and they never should be again in a community such as Northern Ireland. The various groups of people need barristers and solicitors who are prepared to work within the thinking, environment and political aspirations of the different communities. So to pretend that a barrister or solicitor in Northern Ireland is as independent as a member of the judiciary—especially when the suggestion is made by a member of the profession—I find slightly difficult.
Another issue which concerns me is again down to basic living in Northern Ireland. I believe in my heart of hearts that the Government are wrong. If we go ahead and allow a majority of lay people on the commission, the appointments process will boil down to political bargaining. It will be the "Your turn this time, my turn next time" syndrome. I accept that the merit principle is there—of course it is— but the Minister and other noble Lords have said that if there

53
are two super candidates—although she did not say where they may come from politically—it is highly likely that they may well be the best two candidates available. But it is also highly likely that one will come from one community and the other from the other. It is also highly likely that everyone will know who is outstandingly the better of the two candidates. But that is not what will decide the appointment. The decision in Northern Ireland will be made through political bargaining within the lay majority of the commission.
That is the sadness of it. I do not say this with any pride. I see the Minister shaking her head, and I feel exactly the same way as she does. It is a sadness, but it is a reality. To be arrogant once again, it is very rare that I have been as positive from this Dispatch Box about things that happen or will happen in Northern Ireland. But on the occasions when I have been, I am afraid that I have been proved right. I wish to test the opinion of the House.
6 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 94; Not-Contents, 170.

Division No. 2

CONTENTS

Ackner, L.

Hanham, B.

Allenby of Megiddo, V.

Hodgson of Astley Abbotts, L

Anelay of Si Johns, B.

Hogg,B.

Astor ofHever, L.

Holderness, L.

Attlee.E.

Hooper, B.

Blaker, L.

Howe of Aberavon, L.

Blatch, B.

Howell of Guildford,L.

Blood, B.

Hunt of WirralL.

Boardman, L.

Jopling, L.

Bowness, L.

Kilclooney, L.

Bridgeman, V.

KimbalLL.

Brittan of Spennithorne, L.

Laird, L.

Brooke of Sutton Mandeville, L.

Luke, L.

Brougham and Vaux, L.

Lyell, L.

Burnham, L.

McColl of Dulwich,L.

Buscombe, B.

Maginnis of Drumglass, L.

Byford,B.

Masham of Ilton, B.

Caithness, E.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Miller of Hendon,B.

Carnegy of Lour, B.

Molyneaux of Killead, L.

Colwyn, L.

Monro of Langholm, L.

Cooke of Islandreagh, L.

Monson, L.

Cope of Berkeley, L. [Teller]

Mowbray and Stourton, L.

Cox,B.

Moynihan,L.

Craig of Radley.L.

Murton of Lindisfarne, L.

Craigavon, V.

Naseby, L.

Dean of Harptree, L.

Northbrook, L.

Denham,L.

Onslow.E.

Dixon-Smith, L.

Palmer, L.

Eccles of Moulton, B.

Park of Monmouth, B.

Elliott of Morpeth,L.

Pilkington of Oxenford, L.

Elton, L.

Platt of Writtle.B.

Fitt, L.

Rees,L.

Fowler, L.

Renton, L.

Gardner of Parkes, B.

Roberts of Conwy, L.

Gilmour of Craigmillar, L.

Rogan, L.

Glentoran, L.

Rotherwick, L.

Goschen, V.

St John of Fawsley, L.

Gray of Contin, L.

Seccombe,B.[Teller]

54

Sharples, B.

Trumpington, B.

Shaw of Northstead, L.

Tugendhat, L.

Soulsby of Swaffham Prior, L.

Vinson, L.

Stewartby, L.

Vivian, L.

Strathclyde, L.

Wakefield, Bp.

Swinfen, L.

Warnock, B.

Tebbit, L.

Weatherill, L.

Trefgarne, L.

Williamson of Horton, L.

NOT-CONTENTS

Acton, L.

Hardy of Wath.L.

Addington, L.

Harris of Haringey, L.

Ahmed, L.

Harris of Richmond, B.

Alton of Liverpool, L.

Haskel,L.

Amos,B.

Hayman, B.

Andrews, B.

Hilton of Eggardon, B.

Archer of Sandwell, L.

Hogg of Cumbernauld, L.

Ashton of Upholland, B.

Hollis of Heigham, B.

Avebury, L.

Holme of Cheltenham, L.

Bach, L.

Hooson, L.

Barker, B.

Howells of St. Davids, B.

Bassam of Brighton, L.

Howie of Troon, L,

Beaumont of Whitley, L.

Hoyle, L.

Berkeley, L.

Hughes of Woodside, L.

Bernstein of Craigweil, L.

Hylton, L.

Blackstone, B.

Irvine of Lairg, L. (Lord Chancellor)

Borrie, L.

Boston of Faversham, L.

Islwyn, L.

Brennan, L.

Jacobs, L.

Brett, L.

Jay of Paddington, B.

Brooke of Alverthorpe, L.

Jeger, B.

Brookman, L.

Jones, L.

Brooks of Tremorfa, L.

Jordan, L.

Burlison, L.

King of West Bromwich, L.

Christopher, L.

Kirkhill, L.

Clark of Windermere, L.

Layard, L.

Clement-Jones, L.

Lea of Crondall, L.

Corbett of Castle Vale, L.

Lipsey, L.

Crawley, B.

Lockwood, B.

David, B.

Lofthouse of Pontefract, L.

Davies of Coity, L.

Macdonald of Tradeston, L.

Davies of Oldham, L.

Mclntosh of Haringey, L. [Teller]

Desai,L.

Dholakia, L.

Mclntosh of Hudnall. B.

Dixon, L.

MacKenzie of Culkein, L.

Donoughue, L.

Mackenzie of Framwellgate, L

Dormand of Easington, L.

McNally, L.

Dubs, L.

Maddock, B.

Elder, L.

Mar and Kellie.E.

Evans of Parkside, L.

Mason of Barnsley, L

Evans of Temple Guiting, L.

Massey of Darwen, B.

Evans of Watford, L.

Merlyn-Rees, L.

Falconer of Thornton, L.

Michie of Gallanach, B.

Falkender, B.

Milner of Leeds, L.

Falkland, V.

Mitchell, L.

Farrington of Ribbleton, B.

Morgan, L.

Faulkner of Worcester, L.

Morris of Aberavon, L.

Fearn, L.

Morris of Manchester, L.

Filkin,L.

Murray of Epping Forest, L.

Fyfe of Fairfield, L.

Newby, L.

Gale,B.

Northover, B.

Gavron, L.

Orme.L.

Geraint,L.

Patel of Blackburn, L.

Gibson of Market Rasen, B.

Pendry.L.

Gilbert, L.

Pitkeathley.B.

Gladwin of Clee, L.

Plant of Highfield, L.

Golding, B.

Ponsonby of Shulbrede, L.

Goldsmith, L.

Prys-Davies, L.

Gordon of Strathblane, L.

Puttnam, L.

Goudie, B.

Radice, L.

Gould of Potternewton, B.

Ramsay of Cartvale, B

Grabiner, L.

Razzall, L.

Grenfell, L.

Rea,L.

Grocott, L. [Teller]

Redesdale, L.

Hamwee, B.

Rendell of Babergh, B.

55

Richard, L.

Taylor of Blackburn, L.

Rodgers of Quarry Bank, L.

Temple-Morris, L.

Rogers of Riverside, L.

Thomas of Walliswood, B.

Rooker, L.

Thomson of Monifieth, L.

Russell, E.

Thornton, B.

Sainsbury of Turville, L.

Tomlinson, L.

Sawyer, L.

Turnberg, L.

Scotland of Asthal, B.

Turner of Camden, B.

Scott of Needham Market, B.

Uddin,B.

Serota R

Walker of Doncaster, L.

Sharp of Guildford.B.

Wallace of Saltaire,L.

Sheldon, L.

Walmsley, B.

Shutt of Greetland,L.

Warner, L.

Warwick of Undercliffe, B.

bimon, V.

Wedderburn of Charlton, L.

Smith of Clifton, L.

Whitaker, B.

Smith of Gilmorehill, B.

Whitty,L.

Smith of Leigh, L.

Wilkins,B.

Steel of Aikwood,L.

Williams of Crosby, B.

Stone of Blackheath, L.

Williams of Elvel.L.

Strabolgi, L.

Williams of Mostyn, L. (Lord Privy Seat)

Symons of Vernham Dean, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.11 p.m.
[Amendments Nos. 6 and 7 not moved.]
Lord Williams of Mostynmoved Amendment No. 8:
Page 3, line 3, at end insert—
"(6A) A person may not be appointed to be a lay member unless he has declared in writing his commitment to non-violence and exclusively peaceful and democratic means."
The noble and learned Lord said: My Lords, this group contains Amendments Nos. 8, 9 and 14. Amendment No. 8 stands in my name, Amendment No. 9 is in the names of the noble Lords, Lord Smith of Clifton and Lord Shutt of Greetland, and Amendment No. 14 stands in the names of the noble Lords, Lord Rogan, Lord Maginnis, Lord Laird and Lord Kilclooney.
Amendment No. 8 derives from the helpful debate which the noble Lords, Lord Smith and Lord Shutt, originated in Grand Committee. I promised to think about it and have done so. I hope that the amendment that I have brought forward is satisfactory to both noble Lords and to the rest of the House. If carried, my amendment will mean that a person cannot be appointed to be a lay member unless he has declared his commitment to non-violence and exclusively peaceful and democratic means. I believe that that meets the point that the two noble Lords were making.
Amendment No. 14 would impose a statutory disqualification on anyone who had been convicted of a criminal offence at any time in Northern Ireland or elsewhere and had a custodial sentence passed, whether suspended or not. That is far too rigid. I echo the generous words of the noble Lord, Lord Maginnis, who said in Grand Committee that the fact that a man has a past does not mean that he has no future. He also gave illustrations outside my experience of people who had been guilty of crime in the past and who now genuinely wanted to make a constructive contribution to the future of Northern Ireland.
56
Apart from its rigidity, Amendment No. 14 is far too wide. Having secured Amendment No. 8, I hope that noble Lords will not press their amendments to a Division. I beg to move.
Lord Smith of Clifton: My Lords, I thank the noble and learned Lord the Leader of the House for tabling Amendment No. 8, which is virtually identical to my Amendment No. 9, which I shall not move. The amendment derived from one that we moved in Grand Committee, which gathered some support. The noble and learned Lord, Lord Mayhew, suggested that the declaration might be written. If I recall rightly, the noble Lord, Lord Glentoran, also supported that. I support Amendment No. 8, which strengthens the Bill in the right direction.
Lord Maginnis of Drumglass: My Lords, I would like to believe that the government amendment would somehow help us, but it is old hat. We have had this before. I was a member of Dungannon District Council with someone who signed a similar declaration. Between the time he took his seat and the time he was shot in possession of a terrorist weapon I was one of his primary targets. I am sorry to disillusion the noble and learned Lord the Lord Privy Seal, but the signature will not be worth the piece of paper that it is written on.
When we debated the issue in Committee, the noble Lord, Lord Fitt, told us how he had served a term in prison. He is not the only one to have done so. I served my week in Crumlin Road for a civil disobedience offence at the time of the Anglo-Irish Agreement in 1985–86. I went there not so much with great reluctance, but having found it exceedingly difficult to persuade anyone to prosecute me for my admitted offence. As a mark of civil disobedience, I did not pay my car road fund licence or my television licence. I had to write a considerable number of times to convince the authorities that I had committed an offence. Having been brought to court and said that I would not pay the fine for the road fund licence offence, I was taken to prison. As I arrived at the prison gates in front of the television cameras, somebody noticed that I was being brought in a police car for which the road fund licence had not been paid.
I never discovered whether mine was a civil or a criminal offence. If it was a criminal offence, and if the offence of the noble Lord, Lord Fitt, was similarly so, I am sure that the commission could survive without either of us. The greater number of people in Northern Ireland respect and keep the law and would be eligible to serve on the commission. Why do we make this concession as though somehow the world would come to an end if we did not have an ex-terrorist as a member?
The noble and learned Lord the Lord Privy Seal has cleverly argued my specific comment—I see him smiling, so he knows the offence that he has committed—as though it were a general principle. It is not. I would be the first to admit that there are those who have committed serious offences who regret it and seek to make a contribution to society. However, that

57
does not mean that they have to be accommodated in a specific post or appointment such as this. It is inconsistent with the whole concept of the law and respect for the law that those who have broken the law— whether deliberately and purposively, or as a part of organised crime and organised terrorism—should be given responsibility for administration of the law.
I propose our Amendment No. 14 for two reasons. First, I hope to show by example that a signature attesting to good behaviour and to eschewing violence is not worth the paper on which it is written. Secondly, I hope that we put in context the idea that everything that had been open to such people should again be open to them because they are remorseful or have made reparation.
Throughout our consideration of the Bill. I have consistently pressed the Lord Privy Seal and the noble Baroness, Lady Scotland, to tell me what is behind this lack of transparency and lack of straightforwardness, and also to tell us what external commitments have influenced this Bill. They have consistently refused to respond to me on those points. I now ask the question again. What external influences are being implemented or will be implemented? How is it intended that that will be done?
Lord Tebbit: My Lords, I have to say that I have some sympathy with the Lord Privy Seal's Amendment No. 8. In general, however, it seems a good rule that legislation should be framed in a manner that relates solely to its real purpose and that we should eschew pious hopes wrapped up in pious words.
We all know that Mr Adams, for example, is a former—in inverted commas, with a question-mark—member of the IRA army council. We also know that he is currently claiming to be a man of peace, and that many people accept this claim and indeed make it on his behalf. We also know that, since he has been a man of peace, he has attended IRA funerals and IRA celebrations and lauded those who have committed murders and other crimes as terrorists. I do not think that it would be terribly difficult for him to go on from his claims to be a man of peace to make a declaration in writing of,
"his commitment to non-violence and exclusively peaceful and democratic means",
while maintaining all his links with those terrorists who, despite the Belfast agreement, are currently rearming and collaborating with other terrorist movements around the world. The amendment is therefore a charming idea, but I do not think that it amounts to anything very much.
As for Amendment No. 14, which would disqualify those who have convictions for criminal offences entailing a sentence of more than six months, I think that there is a great deal in it. I certainly know that there are terrorists who have repented and set out to try their best to repay the debt that they have incurred to society. I personally know in particular one former IRA man who, having committed the murder of a
58
British soldier and confessed to that murder, has since steadfastly opposed terrorism at very great risk to his own life. His life is of course still under threat, even in these days of the peace process.
So if the noble Lord, Lord Maginnis, presses his amendment to a Division, I shall certainly join him in the Lobby. I would not oppose the amendment proposed by the Lord Privy Seal; I just do not think that it is worth a damned thing.
Lord Monson: My Lords, I entirely endorse the spirit of the Government's Amendment No. 8. However, at the risk of my being accused of hair-splitting, I wonder whether the Lord Privy Seal would agree that, whereas a Quaker or indeed any other pacifist could with a totally clear conscience declare his commitment to non-violence, anyone who believes in the concept of a just war, or even in the simple right of a nation to defend itself against internal or external aggression, would find it hard to do so. Not many people, after all, believe that Osama bin Laden could be defeated by "exclusively peaceful means". As far as I can see, there is nothing in the amendment limiting the commitment to non-violence exclusively to Northern Ireland affairs; it is non-violence full stop. I wonder whether the Lord Privy Seal would care to comment on that.
Lord Kilclooney: My Lords, earlier today it was said that we must create confidence in Northern Ireland and the institutions that we are creating. However, there is little confidence in Northern Ireland at the moment. In fact, there is a developing crisis about the future of the Belfast agreement. The matter has become so critical that the Prime Minister is rushing over to Northern Ireland on Thursday. Although the Government's Amendment No. 8 is of course progress, it does not go far enough. The words are exactly the same as those in the Mitchell report and those in the Belfast agreement. Those words were signed up to by none other than a current member of the IRA army council, the Minister of Education in Northern Ireland, Mr Martin McGuinness. Yet just recently, when a Catholic applicant to the new Police Service of Northern Ireland was attacked, the same Minister who signed up to exactly those words refused to condemn that attack.
Lord Alton of Liverpool: My Lords, I speak briefly in favour of Amendment No. 8. I do so for precisely the reasons just advanced by the noble Lord, Lord Kilclooney. However, I have a rather different point of view on the matter. I believe that if we are to build confidence in the future in Northern Ireland, not only must that future be built on the basis of peace and nonviolence, but we must draw into the process those who previously refused to participate in the democratic process. Although I have much sympathy with what has been said by the noble Lords, Lord Maginnis and Lord Tebbit, in questioning the sincerity of some of those engaged in this process, like the noble Lord, Lord Tebbit, I have encountered some of those who have renounced violence. Like him, I should like them to remain engaged in the process.

59
I particularly remember the case of Liam McCloskey, an INLA man who was the last of the hunger strikers. He went further into the hunger strike than anyone other than Bobby Sands, losing both his eyesight and his locomotion. It was at that point that, at the behest of his mother, the prison chaplain took him off of the strike. He subsequently regained consciousness. At first, he was deeply resentful at not being able to be martyred, rather like some of the suicide bombers so much in evidence in the Middle East today. There was the same sense of giving your life to the cause in which you believe, possibly because of a lack of any kind of hope—that was certainly true in his case—of making any change in a peaceable manner.
In due course, when transferred from the Maze to, I believe, Magilligan prison, he heard of a plot to kill one of the warders. Because he had then undergone a change of heart and a change of mind with regard to espousing violence, he reported the matter to the prison governor. McCloskey's life was threatened for having done that. When he eventually came out of prison he committed himself to the cause of peace and non-violence. He is not alone; people from paramilitary organisations on both sides have done that. They are the people who have to be drawn into this process if we are to leave the viciousness of the past behind us.
I believe that on the first day's sitting of the Northern Ireland Assembly Mr David Trimble said that we all have a past but what is important is the future. Amendment No. 8 seeks to ensure that those wishing to be part of that future commit themselves to a non-violent approach and work exclusively in terms of peace and democracy. Although some of those who sign a piece of paper may not do so with the sincerity that we would wish, there will be many others who will. What is important is to go on building a civil society in Northern Ireland which is democratic, peaceful and in the tradition we would wish in this Parliament.
Sinn Fein argues that oath taking keeps it out of another place. We have to do everything we can to test the sincerity of such statements. If the kind of provision we are discussing were to be a model for putting Sinn Fein on the spot about taking its place and playing its part in another place, it would be all to the good.
6.30 p.m.
Lord Hylton: My Lords, I support what my noble friend Lord Alton says. Like him, I have met a number of former terrorists and paramilitaries on both sides who have totally changed their ways. They are the kind of people who need to be included. I therefore support the Government's Amendment No. 8. I consider that Amendment No. 14 goes too far, particularly as regards the words,
"if he has been convicted at any time … of a criminal offence".
I stress the words "at any time".
Baroness Park of Monmouth: My Lords, I know through my dealings with the Maranatha community
60
that there are a number of people who have truly repented of past violence, who have served the community, and who wish to go on serving it. No one could possibly say that that is wrong. However, there must be a distinction drawn between people one would welcome doing that and people who would, if appointed, have power. We are debating the issue of the lay members who would have power. I do not believe that we have the right to gamble whether they would be genuine or not. If people wish to repent and reform, there are many ways of doing so without allowing them power over the community. There have been too many examples among the paramilitaries of people mis-using their power.
I am much inclined to support the amendment, but I feel that in this particular case it would not be right to allow our wish to trust and to be inclusive to hold sway at the expense of the people who would suffer if we made a mistake. There is room for the people we are discussing to serve the community without their being able to make decisions.
Lord Williams of Mostyn: My Lords, the noble Lord, Lord Maginnis, asked whether any external commitments had been made in the context of either Amendment No. 8 or Amendment No. 14. I know of none.
I cannot add to the purpose of Amendment No. 8. I am most grateful for the generous welcome given by the noble Lord, Lord Smith of Clifton. It seems to me that we have tried to meet a genuine concern. The noble Lord, Lord Tebbit, said that it was pointless to put into legislation words that did not really matter. Amendment No. 14 falls into that category. It does not refer to a sentence of six months or more but to conviction,
"at any time in Northern Ireland or elsewhere of a criminal offence and has had passed on him a custodial sentence (whether suspended or not)".
It is worth considering what that actually means. It means a conviction in the Republic of Ireland or a conviction for criminal speeding. If the speeder was a persistent offender, he could have received a seven-day suspended sentence. That would constitute a disqualification in terms of membership of the body we are discussing. I put the following example gently to the noble Lord, Lord Maginnis. I refer to someone who drives on the wrong side of the road in Turkey while on holiday and is given a seven-day suspended sentence.
The whole measure is, when one looks at it—I put this as moderately as I can—quite nonsensical. It would disqualify people of the quality, for instance, of Nelson Mandela. It would nevertheless not necessarily disqualify those with convictions for which they had not received a custodial sentence although we might rightly abominate them. It would cover every type of criminal offence. I refer to the point made by the noble Lord, Lord Hylton; namely, that it would cover any offence at any time. Therefore, the Rehabilitation of Offenders Act would have no place here, nor the concept behind it. The measure is simply not workable. For that reason alone it should be rejected.

61
My fundamental point is this. As regards someone who has repented—I cannot speak as eloquently as the noble Lord, Lord Alton, or the noble Lord, Lord Hylton—and who wishes to start afresh in a community he has wounded, we should not impose an absolute statutory disqualification for all time. The fact of being in possession of a conviction and sentence does not entitle one to be put on the commission we are discussing, but this amendment if carried—I urge your Lordships not to do so—would constitute a statutory disqualification for all time and the old curse of Northern Ireland of too long a history and too short a history, as one of your Lordships told me privately, would be embodied in statute.
As my noble friend Lady Scotland has said on many occasions, the Bill is designed to work for a better future. It cannot come into effect automatically and the devolved powers we are discussing will not be implemented until the Government are satisfied that it is safe to do so. To start off with what is embodied in Amendment No. 14 would constitute a deep and continuing mistake.
Lord Monson: My Lords, before the noble and learned Lord sits down, he has not answered my question about the commitment to non-violence being totally unqualified.
Lord Williams of Mostyn: My Lords, the noble Lord is right. I am so sorry. As the noble Lord, Lord Kilclooney, pointed out, the measure is a direct quotation from the Mitchell principles and would be understood in that way.
On Question, amendment agreed to.
[Amendment No. 9 not moved.]
Schedule 2 [Judicial Appointments Commission]:
Lord Roganmoved Amendment No. 10:
Page 73, line 23, leave out "may" and insert "must"
The noble Lord said: My Lords, in moving Amendment No. 10, I wish to speak also to Amendment No. 11. As the Bill stands, discretion is afforded to the First Minister and Deputy First Minister to terminate a judicial appointee membership on the recommendation of the Lord Chief Justice. By these two amendments I seek to remove that discretionary power from the First Minister and Deputy First Minister.
The issue arises as to when the Lord Chief Justice would make a recommendation to terminate and when it would be appropriate not to do so. Further to that is the issue of—we shall discuss this in more detail—acting jointly. As the Bill is drafted, either the First Minister or Deputy First Minister has a veto on removal, even if the Lord Chief Justice recommends that removal action be taken. That is clearly a ludicrous situation. I do not believe that it is the Government's intention to vest in the First Minister and the Deputy First Minister those discretionary powers.
When the noble Baroness, Lady Scotland, discussed Clause 5(7) several hours ago, she made great play of the fact that the word "must" was being used rather
62
than "may". I respectfully suggest that similar arguments should be used in relation to the amendment.
Amendment No. 11 seeks to make a similar change in respect of lay members. Some of us are concerned about Paragraph 2(4)(b) of Schedule 2, which is the "criminal offence" provision. As the Bill stands, either the First Minister or the Deputy First Minister may veto the removal of a person convicted of a serious offence. That is surely not what was intended.
Paragraph 2(4)(a) raises questions about the phrase "without reasonable excuse" and whether someone who fails to exercise his or her functions for a period without such an excuse should be permitted to stay. That again involves a de facto veto from the First Minister and the Deputy First Minister. I beg to move.
Lord Glentoran: My Lords, I am not normally one for prescriptive Acts and Bills but this is a judicial Bill and it will have to be interpreted regularly. There is much merit in what the noble Lord, Lord Rogan, proposes, in terms of clarification. The provision appears in a schedule to the Bill and is not in the Bill itself. I presume that the intention is that it should be guidance to whoever interprets the legislation when it is enacted, as I hope it will be. This is a tidying up and clarifying amendment.
Baroness Scotland of Asthal: My Lords. we have already had the benefit of a helpful discussion on these amendments in Committee. They seek to remove any discretion from the First Minister and Deputy First Minister in the case of dismissing lay or judicial members of the Judicial Appointments Commission.
I welcome the opportunity again to express the Government's thinking in this area. With regard to judicial members, the Bill provides that the First Minister and Deputy First Minister may remove a member on the recommendation of the Lord Chief Justice.
With regard to lay members, the Bill provides for dismissal in certain cases. Our policy in these cases is quite clear. We would expect the First Minister and Deputy First Minister to act. We believe that it is important to put a certain degree of trust in the First Minister and Deputy First Minister and not tie their hands by compelling them to dismiss a member automatically. With regard to lay members, a number of the reasons for dismissal are matters that 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, if he had been convicted of a. minor driving offence, for example, it is fairly clear that that person should riot be removed from the commission. One needs to leave the First Minister and Deputy First Minister some discretion in such matters.
I hope that that explanation will assist noble Lords and that it provides the reasons why we believe that the discretion should remain where it is. I hope that the

63
noble Lord will withdraw the amendment. I pray in aid all that I said at greater length on this matter in Committee.
Lord Rogan: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 11 not moved.]
6.45 p.m.
Lord Maginnis of Drumglassmoved Amendment No. 12:
Page 75, 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: My Lords, in moving this amendment, I shall speak also to Amendment No. 13. Both amendments relate to the appointment of committees and sub-committees within the commission.
I have examined the list of duties that the commission is likely to have. It appears, I believe, in Schedule 1. A commission of 13 perhaps needs committees but I am at a loss to understand why it would need sub-committees.
I hope that the Government appreciate and will accept the common sense of the amendment. It seeks to ensure that, having set the current standard for membership of the commission—I do not believe that that standard is stringent enough—it would be wrong to have committees or sub-committees on which people would be eligible to sit although they would not meet the standard that is required to be a member of the commission as a whole.
Amendment No. 13 proposes that the commission may not delegate any of its functions in paragraph 11(1),
"unless approved by the majority of judicial members of the Commission".
By and large, I have explained why members of committees or sub-committees should at least measure up to the standards that apply to the commission as a whole.
In terms of delegating functions, the commission should not further jeopardise the judicial process. It could delegate responsibilities that require judicial know-how to a sub-committee although no member of that sub-committee had in-depth knowledge of the judicial process or of what is required.
Both of the amendments are simple. I genuinely believe that they would improve the Bill, although we have to take into consideration the fact that some dubious individuals may be permitted to be members of the commission. Having said that, I hope that the Government will agree to the amendments. I beg to move.
Baroness Scotland of Asthal: My Lords, these amendments were discussed extensively in Committee. As noble Lords will know, the Bill provides that the
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commission may establish committees or subcommittees which may include persons who arc not members of the commission. The Bill also states that where committees are dealing with appointments, they must include a member of the commission and, unless that person is a lay member, a person who is eligible to be a lay member as well. Noble Lords will recall that that issue was extensively debated in another place. This latter amendment was made in light of the views of Members in another place that it was appropriate for there to be a member of the commission on all committees dealing with appointments.
On the face of it, Amendment No. 12 goes considerably further. It requires that the committees of the Judicial Appointments Commission have the same membership criteria as the full commission. However, in practice the only persons who would be prevented from membership of committees would seem to be retired judges, barristers or solicitors. I know that a number of comments have been made in this House about lawyers generally but I do not think that that is one which would merit their continued exclusion. I am not sure why such lengths are being gone to to achieve that. Given that we have already sought to achieve an appropriate relationship between the full commission and its committees, I ask for the amendment to be withdrawn.
Amendment No. 13 prevents the commission from delegating any of its functions unless approved by a majority of the judicial members of the commission. Other amendments tabled earlier by noble Lords sought to increase the judicial membership of the commission. With this amendment, noble Lords perhaps show a similar wariness in regard to the role to be played by the lay members.
We should remember the nature and extent of the appointments that are likely to be made. If one considers the appointments made in the year 2000–01, the Lord Chancellor was responsible for making a total of 40 appointments in 2000 and 90 in 2001. To date for the year 2002 we have had about 52 appointments. The appointments commission will have to involve itself in a broad range of appointments from tribunal, county court judge, magistrate, justices of the peace, lay panellists, and so on. It is important for it to be able to do its work through committees. As noble Lords know, in the main it has been left to the commission to decide its working practices under its chairman the Lord Chief Justice who, I should imagine, will be a jealous chairman in terms of his practices and procedures.
As I have said on a number of occasions, 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 appointment process. Those benefits apply across all the functions of the commission. We are not convinced that lay members should play a lesser role in deciding what functions the commission

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should or should not delegate. In the light of that explanation, I hope that the amendment will be withdrawn.
Lord Maginnis of Drumglass: My Lords, I listened carefully to the Minister. I despair increasingly about making this legislation the kind of Bill that I believe that Northern Ireland deserves. However, I shall not waste the time of the House. I have made my point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 13 and 14 not moved.]
Clause 4 [Appointment to most senior judicial offices]:
Lord Roganmoved Amendment No. 15:
Page 3, line 22, leave out "First Minister and deputy First Minister" and insert "Lord Chancellor"
The noble Lord said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 16 to 34. Clause 4 is concerned with the appointment of the most senior judicial officers including a judge of the High Court, an issue which we debated earlier at length. The amendments seek to remove the role of the First Minister and Deputy First Minister from the appointments procedure either as consultees or persons making recommendations.
As has been mentioned several times in debate, there is real and genuine concern in Northern Ireland with respect to the politicisation of the judicial appointments process. Recommendations by the First Minister and Deputy First Minister—they are politicians—to a Prime Minister seems excessive and unnecessary. Let us consider what advice the First Minister and Deputy First Minister could provide to the Prime Minister on appointing the Lord Chief Justice or justices of appeal other than a perceived political opinion or religious background. Given the numerous legal challenges to decisions already made in the light of the agreement, the inclusion of the First Minister and Deputy First Minister in the process of selection poses obvious problems in the future. In paragraph 6.104 the review states:
"In the Northern Ireland context it is important to keep any hint of political input out of the appointments process".
The Bill attempts to do the exact opposite.
Devolution does not necessitate devolution of the judicial appointments process. Indeed, one does not follow the other. Devolution relates to the legislature. It relates to the executive and to government. When we speak of the judiciary, it is a separate branch of the state. Again, I refer to subsection (5). The First Minister and Deputy First Minister must act jointly in making a recommendation. That provides the MLAs concerned with the power of veto over the process of appointment with respect to any potential appointee. I submit that the Belfast agreement did not dictate that all decisions which had to be made by the First Minister and Deputy First Minister must be joint decisions. I contend that such language was the creation of the draftsmen of the Northern Ireland legislation.
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Clause 5 makes provision for the appointment of listed judicial officers by virtue of the Judicial Appointments Commission making recommendations to the First Minister and Deputy First Minister. Schedule 3 relates to the transfer of functions in respect of those appointments from the Lord Chancellor to the First Minister and Deputy First Minister. As has been stated, it is not something that must take place as part of the process of devolution, or of the devolution of criminal justice functions. Judicial appointment functions are and should remain separate. Further to that is the consequence of the perceived politicisation of the appointments process. I beg to move.
Baroness Scotland of Asthal: My Lords. again, we debated this group of amendments in Committee and I am afraid that there is little more that I can add. Overall, the effect seems to be to turn over to the Lord Chancellor the role of the First Minister and Deputy First Minister in the process of appointing judges.
Perhaps I may clarify the purpose of the legislation. In the Bill, the First Minister and the 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 this role 'was also discussed at length in another place. In the devolved scenario we must give the First Minister and the Deputy First Minister in Belfast the same trust as we extend to the Lord Chancellor in Westminster. I am sure that noble Lords will agree that devolving justice matters, including judicial appointments to the Northern Ireland Assembly, would be a positive and welcome development that would help to underpin the stability of that institution.
We have spoken many times during the course of the passage of the Bill about the important principles, such as independence. The principles at stake here are also just as important. We are talking about trust. It cannot be emphasised enough. When a decision is taken to devolve, in the light of security and other relevant considerations, we must demonstrate our commitment by trusting the devolved administration with the outworkings of that decision. We cannot take one step and not the other. For that reason, I ask for these amendments to be withdrawn.
7 p.m.
Lord Rogan: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 to 26 not moved.]
Clause 5 [Appointment to listed judicial offices]:
[Amendments Nos. 27 to 34 not moved.]
Baroness Scotland of Asthalmoved Amendment No. 35:
Page 4, line 33, leave out from beginning to "office" in line 34 and insert—
"(8) The Commission must, so far as it is reasonably practicable to do so, secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office.
(9) But the selection of the person to be appointed, or recommended for appointment, to the listed judicial"
The noble Baroness said: My Lords, on behalf of my noble and learned friend the Lord Privy Seal, I move the amendment standing in his name on the Marshalled List. I am grateful to my noble friend Lord Desai for focusing our attention on this issue during Grand Committee.
The idea of a statutory requirement to secure a reflective judiciary was discussed extensively both in another place and at Grand Committee. The notion has been resisted in the past because judges must not be appointed with regard to representativeness or reflectiveness, but exclusively on merit. Judges must not be appointed to "even up the numbers", as distinct from being appointed on merit. Judges do not represent or reflect parts of the community but the whole community, and must do justice according to law for the benefit of the whole community.
The review did not contradict this principle. It recommended that merit should remain paramount. We believe that everyone present in the Chamber would agree with that principle. However, as there is a body of support for the idea that the objective of securing a reflective judiciary should be given statutory expression, we undertook to revisit this matter on the understanding that any provision would need to be subject to the principle of appointment on merit.
We have reconsidered the matter. We are now in a position to offer noble Lords a wording that reflects the recommendation of the review. Perhaps I may remind the House of the review's recommendation. It recommended that,
"it should be a stated objective of whoever is responsible for appointments to engage in a programme of action to secure the development of a judiciary that is reflective of Northern Ireland society, in particular by community background and gender, as can be achieved consistent with the overriding requirement of merit".
This amendment requires the Judicial Appointments Commission, so far as it is practicable, to ensure that a range of candidates reflective of the community are available for consideration for appointment to listed judicial offices. There is, however, strong competition for appointment to the judiciary and any appointment must be made on merit. The Government have made it clear that it is desirable to have a reflective judiciary but that is to be achieved without prejudice to each and every appointment being made on merit.
First, as I said earlier, there was a concern that any reflectiveness provision could be taken to undermine the merit principle. The review is clear that this should remain paramount. The amendment is equally clear:
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any selection of the person to be appointed, or recommended for appointment, to the listed judicial office must be made solely on the basis of merit. Secondly, the provision requires that a range of candidates reflective of the community will be achieved only in,
"so far as it is reasonably practicable".
The new provision focuses on securing the pool. Together with the changes made by the Bill to the eligibility criteria and the commitment to a programme of outreach outlined in the review implementation plan, the amendment demonstrates the Government's commitment to a judiciary appointed solely on merit, as I have said on a number of occasions, while giving every encouragement to those eligible from across the whole of society to apply for judicial appointment. I beg to move.
Lord Hylton: My Lords, I have a purely drafting point to make. Can the noble Baroness—the Minister—confirm that the new subsection (9) to Clause 5 as outlined in the Government's amendment is correctly printed on the Marshalled List? On the face it, it does not appear to me to make sense.
Lord Brooke of Sutton Mandeville: My Lords, before the noble Baroness, Lady Scotland, responds—perhaps she could answer a separate question while advice is being secured in response to the drafting matter raised by the noble Lord, Lord Hylton. Once upon a time, Secretaries of State on arrival in Northern Ireland were given three large dossiers to read. Part of one of those dossiers included words that the Secretary of State should avoid using. My recollection of 13 years ago is that Secretaries of State were advised that they should not refer to "the community" but to "both sides of the community".
I realise that times change and that a totally different form of language may apply 13 years later. Indeed, it is possible that that has been so since the Belfast agreement. However, if the wording used has changed in the intervening period, it would be helpful to know whether there is a definition of the phrase "reflective of the community" anywhere else in the Bill.
Lord Alton of Liverpool: My Lords, before the Minister responds, perhaps I may follow on from the question just raised by the noble Lord, Lord Brooke. Varying descriptions are used by academics of the word "merit". I wonder precisely how the Government intend to define the word. Incidentally, I believe that they are right not to derogate from that principle. They are also right to use the word "reflective" rather than "representative". However, there will be concern about what the Government mean by the use of the word "merit".
Lord Mayhew of Twysden: My Lords, I must be careful now, because I must not stand up to speak after the Minister has replied. If I may say so, I think that

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this amendment is rather a clever piece of drafting. It will be completely unenforceable. No one will be able to complain that something was not done when it was "reasonably practicable" for it to be done, or vice versa. However, I believe that it serves a number of gods whose wrath it is important not to incur. I particularly endorse the use of the word "reflective" rather than "representative" for the reason given by the noble Baroness, Lady Scotland, during the Grand Committee proceedings. She said that it was,
"a more sensitive word to use when describing where a judicial officer may come from but not what he will in fact do".—[Official Report. 11/6/02; col, CWH 35.]
If you talk about someone being "representative", it may imply that he will do what he is told to do.
The amendment is a complex, but necessary, piece of drafting. I congratulate all concerned on their ingenuity. As I said, I do not believe that it will help anyone, but it is a necessary addition to the Bill.
Lord Desai: My Lords, I thank my noble and learned friend for dealing with the question that I raised in Grand Committee.
Baroness Scotland of Asthal: My Lords, I thank the noble and learned Lord, Lord Mayhew, for his compliment—the full force of which I take on board—in relation to the ingenuity of the Government on this occasion.
I shall deal with the questions in reverse order. The noble Lord, Lord Alton, asked what "merit" means. It means the worth and fitness for judicial office. There is no precise definition of "merit", but it is clear that it means the best person to fit the job or the person who is clearly best suited for that particular judicial office and the excellence that is required, as opposed to any other criterion.
The noble Lord, Lord Brooke, raised a question about the word "community". "Both sides of the community", as the noble Lord will know, tended to refer to the religious communities in Northern Ireland—both Catholic and Protestant. The word "community", as used here, has a much wider meaning and refers to the peoples of Northern Ireland. Although there are two dominant communities in that country, there are also others. It refers to the totality of the community as opposed to just the two sides.
On the issue of "reflectiveness", I hope that I have dealt with the question raised by the noble Lord, Lord Hylton. I am trying to remember what it was.
Lord Hylton: My Lords, with the leave of the House, perhaps I can remind the Minister. It appears to me that the word "office" has been left out after "judicial".
Baroness Scotland of Asthal: My Lords, one has to read the line together with the Bill. The word "office" is already in the Bill. The words that we are adding do not make sense until they are put into the Bill. It is already there. I can see vigorous nodding from those in the Box to tell me that I have the matter aright.
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The word "reflective" best meets the needs of this part of the Bill. If one were to re-write other parts of the legislation, one would perhaps use "reflective", as opposed to "representative", because it is a much more sensitive word and indicates precisely what we mean. We do not mean that those appointed to other bodies will represent specific contingencies on that body; we mean that they will be reflective of the community. We use that word because it has the nuance that is absolutely essential. In relation to the judiciary, that needs to be underlined because of independence and other factors. To be honest, I believe that we probably would have used the word "reflective" in the past, but language changes and we choose what is best for today.
On Question, amendment agreed to.
7.15 p.m.
Schedule 3 [Appointment to listed judicial offices]:
[Amendment No. 36 not moved.]
Clause 6 [Removal from most senior judicial offices]:
Lord Glentoranmoved Amendment No. 37:
Page 5, line 33, after "office" insert "for a maximum of three months"
The noble Lord said: My Lords, this short amendment was tabled in Grand Committee. On reflection, I was not happy with the response given by the noble Baroness. I felt that something had been missed. There is a possibility that under subsection (8) of new Section 12B, in relation to the suspension of the Lord Chief Justice, a hole could appear when a decision is taken to suspend the Lord Chief Justice while something else happens. In the response we were encouraged to believe that that was hypothetical because it will never happen. I can go along with that, but if one believes that it will never happen, why is that provision in the Bill at all? If it is to be in the Bill. it should have all the necessary safeguards.
In Grand Committee the human rights issue was also mentioned. I feel that the human rights issue would be on the side of the Lord Chief Justice. If I were Lord Chief Justice and I were to be suspended, I would want to know that I had some security so that whatever should happen next would happen. I would want to know that I was not to be left festering, as has happened in other parts of our democracy, for years on end while some court or tribunal decides what is to happen to me. It is not a big deal. I do not feel that it is in any way political, but it is a safeguard arid it is tidying up. I beg to move.
Baroness Scotland of Asthal: My Lords, the noble Lord, Lord Glentoran, is right to say that we spoke about this matter in Committee. Clause 6 provides for the removal of judges from the most senior judicial offices. I believe that we all accept that it is highly unlikely that the circumstances will arise to make consideration of those provisions necessary, but they have to be in the Bill just in case.
There are difficulties. Amendment No. 37 places a time limit of three months on the suspension of the Lord Chief Justice, while the Prime Minister and the

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Lord Chancellor consider making Motions for the presentation of the Address to Her Majesty for his or her removal. We have discussed this amendment and we do not anticipate any difficulty with the exercise of the power to suspend, but we have to remember that the power is given to the Prime Minister for use only when he and the Lord Chancellor consider the making of a Motion for an Address to remove. Making those two the final arbiters as to whether the power is exercised is an important point. The power to suspend clearly will not be exercised lightly. As I explained before, we expect action under this clause to be taken extremely rarely, if ever. We hope that the matter would be over quickly, but we cannot know for sure how much time a tribunal may take to report. For that practical reason we require the flexibility that the amendment seeks to remove.
On the previous occasion I said that speed will be of the essence. On that occasion the noble Lord asked whether we could, at least, bring the matter back to the House. We know the workings of this place and the other place well. The removal of the Lord Chief Justice, even for a temporary suspension, would exercise people's minds greatly. I am sure that it would cause a huge amount of debate the moment that it happened, and it would be likely to be a matter that would be kept under rigorous review by Her Majesty's loyal Opposition if no one else.
Speed will be of the essence, but the reason why we say that it would be unwise to prescribe a time limit is because we would never know how long that time limit should be. It would have to be done properly and speedily. I hope that that reassures the noble Lord. Nothing that we say will limit in any way the opportunities for individual Members in the other place or here to put down appropriate questions, to ask for a statement or anything of that kind. If such a matter were to take place, it would be momentous indeed, and it would be given the attention that it deserved.
Lord Glentoran: My Lords, I thank the noble Baroness for that explanation. I am still pretty uneasy, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 38 not moved.]
Clause 7 [Removal from listed judicial offices]:
Lord Maginnis of Drumglassmoved Amendment No. 39:
Page 6, line 1, leave out from second "the" to end of line 2 and insert "Lord Chief Justice"
The noble Lord said: My Lords, I rise to my feet to speak to Amendments Nos. 39, 40 and 41. Earlier this evening I might have risen with a feeling of frustration. I now rise with a feeling of fearfulness as to what is going to happen when this Bill becomes law in Northern Ireland.
At every other line in the Bill I see the responsibility that is being placed on the shoulders of the First Minister and the Deputy First Minister acting jointly. If I said that that was a head-in-the-sand attitude, no
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personal offence would be intended towards those who have responsibility for putting the Government's case. But the reality is that those increasing responsibilities on the First Minister and Deputy First Minister require the exercise of such time and attention that the whole process could literally run into the sand.
It appears that my proposal to delete in page 6, line 1,
"the First Minister and deputy First Minister, acting jointly",
and to insert "Lord Chief Justice", and in line 4 of the same page to leave out,
"First Minister and deputy First Minister",
and insert, "Lord Chief Justice" will have little sympathy from the Government. Perhaps I should not be so despondent at this point but what has happened heretofore has not encouraged me. Amendment No. 41 of course is a consequential amendment.
In so far as I formally move these amendments, I appeal again to the noble Baroness who will respond to explain how we are to achieve what the Bill seeks to achieve through the offices of two Ministers who are, in political terms, chalk and cheese, oil and water? Where will we find this coming together, this acting jointly? However, I am not as despondent as my noble friend Lord Molyneaux—he tells me I am not as old. I believe that, when it comes to the crunch, the good sense of the people of Northern Ireland will not impose upon us government by leaders of parties other than those currently in power.
However, to propose the sort of legislation that we are seeing here tonight is to increase unbearably, and unsustainably, the pressures on the First and Deputy First Ministers. Whether it be now or at Third Reading, the Government have an obligation to come forward with something which will have some appeal and some sympathy, and which will create some confidence across both traditions in Northern Ireland. What we have heretofore falls far short of that expectation. I beg to move.
Baroness Scotland of Asthal: My Lords, I am much encouraged by the optimism of the noble Lord, Lord Magginis, in the people of Northern Ireland. I confess that that is a confidence I share. We have to trust the good sense of the people of Northern Ireland—both communities—who have, on a number of occasions, chosen bravely to stand together for peace when others would want to separate them. I commend and wholeheartedly agree with the noble Lord's emphasis.
Amendments Nos. 39 to 41 place the power to remove or suspend a person from a listed judicial office in the hands of the Lord Chief Justice alone rather than with the First Minister and Deputy First Minister. The Bill currently invites all three to share the burden. I hope that, as I go through this a little slowly, your Lordships will find that there is more comfort and reason to feel secure than may have been thought at first blush.
The Bill currently provides for the First Minister and Deputy First Minister to perform this function only on the basis of a recommendation from a judicial

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tribunal and—this is important—with the agreement of the Lord Chief Justice. This role reflects the position held by the First Minister in Scotland.
We expect action under this clause to be a rare event. But 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. The same holds true for the removal procedure.
All Amendments Nos. 39 to 41 achieve, therefore, is to remove the element of political accountability advocated by the review. The noble Lord should also be reassured that the Bill provides the safeguards that any removal can only take place on the recommendation of a tribunal and with the agreement of the Lord Chief Justice. So if the noble Lord was fearful that the First Minister or Deputy First Minister could somehow go off on a frolic of their own, then that fear has no basis. There has to be a recommendation and the Lord Chief Justice has to agree. The noble Lord will know better than I that the current Lord Chief Justice is a formidable individual.
I consider that it is appropriate that the agreement of the Lord Chief Justice, in his capacity as the head of the judiciary in Northern Ireland, to the removal of the holder of a listed judicial office should be sought. We are confident and content that the provisions as drafted achieve an appropriate balance. Therefore I urge the noble Lord to withdraw his amendment.
Lord Maginnis of Drumglass: My Lords, I hear what the noble Baroness, Lady Scotland, says in response to my points. I believe that she lives in hope rather than expectation—certainly she forces me to do so—for the simple reason that there is an expectation that somehow First Ministers and Deputy First Ministers will roll over and Lord Chief Justices will reign supreme. If this is merely intended to be a cosmetic exercise as the noble Baroness suggests, then it is unfair to the First and Deputy First Ministers, and it is unfair to those of us who are trying to understand the process. Ultimately it may also be unfair to the community. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton: My Lords, I beg to move that further consideration on Report be adjourned during pleasure until not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Consolidated Fund (Appropriation) (No. 2) Bill
Brought from the Commons, endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Vehicular Access Across Common and Other Land (England) Regulations 2002
7.30 p.m.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty)rose to move, That the draft regulations laid before the House on 14th May be approved [30th Report from the Joint committee].
The noble Lord said: My Lords, these regulations derive from powers contained in Section 68 of the Countryside and Rights of Way Act 2000, which came into force on 1st April 2001.
The regulations provide a solution to problems which were discussed at some length in your Lordships' House and in another place during the passage of that Act, but originated in a particular example in relation to a common in north-west Hampshire. There the owner of the common had pointed out to the residents that vehicular access to their premises was across his land, and that it was a criminal offence for them to drive across it without lawful authority. Because it was a criminal offence, no rights of access had been acquired through long use, but he would be prepared to grant a legal right of access in return for compensation.
The residents were most concerned about this, given that the accesses had been in existence for many years and there had not been any suggestion before that they did not have a legal right to use them. Without a right of vehicular access, sale of their properties would be blighted. Furthermore, the amount of compensation being demanded was in their view excessive. We rapidly realised that this problem was not, in any sense, confined to north-west Hampshire. Similar problems arose in other parts of the country with different landlords and with different configurations of the ownership and access patterns. Frankly, it is impossible to estimate the full extent of the problem, but it is clear from cases which have been drawn to our attention that it is more widespread than at first thought.
The Government looked at the issues thoroughly and, as was requested in both Houses, brought forward amendments to the then Countryside and Rights of Way Bill, which became Section 68 of the Act. Section 68 of the Act provides for the creation of a statutory easement in circumstances where a vehicular access crosses land over which it is an offence to drive, and where the use of the access has been for such a time, and in such a manner that, had it not been an offence to drive across the land, a right of access would have been acquired through prescription. The intention is that the statutory easement should convey on owners of the premises essentially the same rights as they would have acquired through prescription, in circumstances where the landowner is either unwilling to grant an easement, or is seeking excessive compensation for doing so.
The section provides the power to make regulations setting out the nature of the statutory easement, the procedures to be followed when an application is

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made, how disputes should be resolved, and—crucially—the compensation sum payable to landowners in return for the easement coming into force over their land.
During the passage of the Bill and since a number of Members of this House have taken a keen interest in these provisions and looked forward to the regulations being provided under it, in drawing up the procedures we have taken into account the many points put to us by noble Lords and others during a number of consultation exercises undertaken since October 2000.
The regulations therefore prescribe the process to be followed. That involves the owner of the premises submitting to the landowner an application which contains the information and other details set out in a schedule to the regulations. It is important that the application should contain comprehensive information as that will form the basis of the registration of the easement with the Land Registry at the end of the process.
The process then provides for the landowner either to accept the application or object to it by serving a counter-notice. The procedures envisage one further exchange between the two parties—by the serving of an amended application or amended counter-notice, before one of them decides to invoke the dispute resolution procedures. Where the dispute is over the value of the premises, disputes can be settled by a chartered surveyor either agreed by the parties or appointed by the president of the Royal Institution of Chartered Surveyors. All other disputes—for example, about whether the qualifying criteria are met, or the terms and limitations attached to the easement—would be resolved by the Lands Tribunal.
Once agreement on all matters has been reached by the parties, the owner of the premises has to pay the compensation sum to the landowner, who must issue a receipt. If the landowner refuses to accept the compensation, it can be paid into court. The regulations provide that the easement comes into existence on payment of the compensation sum.
Noble Lords are probably particularly interested in the compensation sum prescribed by the regulations. Our objective has been to strike a fair balance between the interests of the landowner and the owner of premises desiring access where access has been established. It has therefore always been our intention that landowners should receive some compensation in return for rights coming into existence by statute over their land. That was not of course the position that was taken by all the speakers in your Lordships' House or another place. But we believe that that balance is needed and we believe that approach to be compatible with the provisions of the European Convention on Human Rights.
We listened carefully to the views expressed on the compensation sums in this House, in another place, and by the organisations and individuals who have commented on this issue since October 2000. The conclusion we have reached is that the compensation payable in respect of older premises, already in
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existence at the point when it became an offence to drive on common land, should be a relatively small amount. We therefore propose that the compensation sum should be 0.25 per cent of the value of premises in existence on 31st December 1905 and 0.5 per cent for premises coming into existence after this date, but which were in existence on or before 30th November 1930. For all other premises the figure proposed is 2 per cent. Those are significant reductions in the sums that owners of premises might expect to pay without these regulations, when compensation of up to 10 per cent of the value of the premises have been sought by landowners in some circumstances.
We believe this strikes an appropriate balance. I look forward to your Lordships' contributions in commenting on the regulations. I beg to move.
Moved, That the draft regulations laid before the House on 14th May be approved [30th Report from the Joint Committee].—(Lord Whitty.)
Lord Trefgarne: My Lords, the House is grateful to the noble Lord, Lord Whitty, for bringing these regulations before your Lordships.
I start by declaring a former interest. I was at one time a trustee of the Horsell Common Preservation Society. One of the cases to which the noble Lord referred was a case brought by a Mr Hanning on behalf of that society. I am no longer a trustee, but am very much in support of its position on the matter.
The regulations, as the noble Lord has said, provide for the implementation of the principles set out in Section 68 of the Countryside and Rights of Way Act 2000. When that piece of legislation was passing through this House, the noble Lord, Lord McIntosh, who was then in charge of the Bill stated:
"This problem which the Government seek to resolve concerns cases where a property owner has been driving to his home across common land unhindered and continuously for many years".—[Official Report, 16/11/00; col. 421.]
The Minister correctly identified part of the problem but only part of it. There is a separate problem, which I shall now briefly describe.
The problem especially affected the Horsell Common Preservation Society. Premises adjacent to Horsell Common were not a home. For many years, they were quasi-industrial premises and were being used covertly for light industrial purposes. The local planning authority made several attempts to enforce the fact that the business being conducted on those premises was unauthorised. Those attempts failed. The premises continued to be used for unauthorised purposes for a considerable period. Eventually, an easement was sought to the effect that the company had used the road through Horsell Common for so many years that it was entitled to it as of right. Horsell Common Preservation Society went to court, won its case and that was the end of the matter at the time.
However, the mischief—if I may describe it in such terms—remained. The Government, recognising the problem, as did the society, laid these proposals. Unfortunately, despite representations from a number

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of sources, the regulations do not differentiate between domestic and industrial or commercial property. The arrangements that the Government propose for compensation for the owners of domestic property are about right. I have no strong views on that. But they are clearly not right for commercial property.
The plain fact is that had the owners of the property to which I referred, the covert commercial users, gained unhindered access through Horsell Common to their premises, they would have enhanced the value of their property by not 2 per cent but by 200 to 300 per cent. It is wrong that the only compensation they would have been required to pay is the modest figure provided for in the regulations.
The difficulty for the Horsell Common Preservation Society was not only the financial considerations, unjust though they were, but the fact that the use of the road through its common was highly environmentally disadvantageous. I watched the vehicles thundering through myself. From time to time, they placed users of the common in danger. They severely damaged the road and forced the common preservation society to undertake great expenditure to keep the road in reasonable condition.
The arrangements in the regulations to allow easements for commercial property users are inadequate and unsatisfactory. I hope that the Minister will reconsider them. I made those representations to the Minister in a letter to which I have not yet had a reply. It was sent comparatively recently, so I do not complain about that. I hope that he will accept that there is a problem, the nature of which I have described, and will be prepared to consider how to find a solution to it. I look forward to hearing what he has to say.
7.45 p.m.
Baroness Sharp of Guildford: My Lords, we on these Benches also thank the Minister for laying the regulations. As the Minister said, they were the subject of extensive consultation and, like the noble Lord, Lord Trefgarne, I agree that the balance now achieved is probably about right.
However, I should like to raise three issues with the Minister to which he may be able to reply. The first is that of common land of which there is no known owner. To date, there is no commitment to sorting out that question, although it has been discussed. The result is that anyone owning property fronting onto such land at present finds it impossible to sell other than to cash buyers because mortgage lenders seek the certainty of an easement, which cannot be granted as there is no one to grant it. They may accept insurance indemnity cover. One possible solution may be for the valuation of the easement to be made by a chartered surveyor and for all the money to be, in effect, put on one side into a trust for a time. But there is concern about what happens where there is no known owner: who shall make the grant?
The second problem is the question of access over village greens, which is a different issue and something of a legal minefield. I have certainly not understood all
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of the issues involved. But what concerns us most is that, for similar reasons to those obtaining where there is no known owner, there is a danger that people so affected would not be able to sell their house. That is extremely difficult for them. They are locked in until they can sell their house. Has the Minister any proposals for such cases? Is there a deadline by which the Department for the Environment, Food and Rural Affairs make proposals for village greens?
The final issue concerns compensation. Regulation 11(1)(2) states:
"Subject to paragraph (2), the compensation sum shall be 2 per cent".
Is that the maximum, or will it be levied at 2 per cent? For example, Hertfordshire County Council charges nothing, while Guildford Borough Council at present judges anything between £500 and £1,500, depending on council tax band, which is usually much less than 2 per cent. Will they be allowed to continue to charge less than 2 per cent, or is 2 per cent the requisite sum?
The consultation document published in July 2001 states that where authorities,
"wish to grant an easement for less than the price set out in the regulations, it will be open to them to consider whether. in accordance with the relevant provisions of Part VII of the Local Government Act 1972, they wish the seek the Secretary of State's consent for a disposal at less than the best consideration reasonably obtainable. In such a case, specific consent would only be required if the undervalue exceeded that permitted by paragraph 6 of the Local Government Act 1972 General Disposal Consent 1998".
Does that still apply? Is that what is proposed?
With those three reservations—on which I hope that the Minister will enlighten us—we welcome the regulations.
The Earl of Onslow: My Lords, I do not think that the Horsell Common Preservation Society has ever received such a high profile. I declare an interest. I am president of the society. It does not mean that [have to do anything, but it was set up by my grandfather for the benefit of the public around Woking.
Such problems have arisen with many commons in areas of considerable habitation—many houses. The proportions of 2 per cent and 0.25 per cent are completely reasonable. I know that the Government absolutely hate my telling them how well they have done; they get embarrassed and crawl—well, I have been told that that is the case.
I emphasise the question asked by the noble Baroness, Lady Sharp: is 2 per cent the maximum? Do people have to charge the maximum or do they have discretion, as would be reasonable? Above all, I support what was said by my noble friend Lord Trefgarne about industrial access.
It is all fine and large an old-fashioned and long-established right being tidied up, which is the case for domestic, private houses The Government seem to have got that about right, if in a slightly complicated and obtuse way. Having said that, it is another matter to allow a commercial company to have an enormous increase in its assets at what could be either public or private cost. As we have heard, Guildford Borough

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Council and Hertfordshire County Council own a lot of common land. Why should they give an extra subsidy to commercial concerns to increase their value by a sleight of hand?
I know that we cannot amend secondary legislation. We must say either "yea" or "nay", which is a clumsy thing. However, I shall trust to the wisdom, common sense and ability to listen of the Minister. He should pay attention to what the noble Baroness, Lady Sharp of Guildford, my noble friend Lord Trefgarne and I have said. I hope that he will think that we have been sensible and reasonable: I think that we have. Our point needs substantial consideration.
Lord Faulkner of Worcester: My Lords, I am also happy to support the Motion, but I shall ask my noble friend the Minister one question. I apologise if I appear naïve in asking it. I read the supporting documents, and I am looking for an assertion that the compensation that will be paid is a once-and-for-all payment that will go with the property to which it applies and will not be re-applied to subsequent owners when they sell. I am sure that that is the case, but I should be grateful for such an assurance.
I shall indulge in a small personal anecdote. Last year, I sold a house on a common adjacent to the Malvern Hills. The common was owned by the Malvern Hills Conservators, and there was a frontage of about six metres between my garage and the road. When I came to sell, I discovered that, because of the legislation, a payment was required. When I bought the house, my surveyor, my lawyer and everyone else who advised me were unaware that compensation would have to be paid. Certainly, they did not alert me to that possibility. It never occurred to me that I was doing anything illegal by taking my car out of my garage and putting it on the road. It was necessary to reach an agreement, in great haste, with the conservators on a payment, so that I could go ahead with the sale of the property.
It strikes me that I am not alone in facing that difficulty. There are hundreds of houses around the Malvern Hills that abut onto common land, and the owners have not the faintest idea that they are acting illegally by driving in and out of their driveway across the common land. I hope that one of the effects of passing the regulations will be that DEFRA and its regional offices will undertake a publicity campaign to make people aware that they will have to deal with compensation. It may be that the landowners—in this case, the conservators—will not go out of their way to get it, but people will have a nasty shock when they come to sell their house.
Baroness Byford: My Lords, I also thank the Minister for bringing the regulations before us. Our discussions today will be slightly briefer than the discussions we had about the relevant part of the Countryside and Rights of Way Bill, on which we spent many hours. As noble Lords have suggested, that Bill had huge repercussions for some people,
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repercussions of which they were totally ignorant. People were not aware that they were not obeying the law within the law.
I have one or two questions for the Minister. On these Benches, we thank the Minister for the fact that the Government listened to that debate. As the Minister will know, we raised the issue in Committee, on Report and at Third Reading. The Minister agreed that, in some cases, the charges were too high and that, in some cases, they were too low. One of the problems was that the costs needed to be at a certain level to cover the cost of administering the registration of the easements. We thank the Government for listening.
The Government originally proposed a figure of 4 per cent. The level is now 2 per cent. Other noble Lords asked whether it was 2 per cent maximum or up to 2 per cent. I looked through the Countryside and Rights of Way Act 2000, and, as far as I could see, that is not defined as such. It is, I think, just 2 per cent, not up to 2 per cent. I seek a little clarification because, unless people actually seek easements, they do not have to get one. It is only in cases in which a party wants to instigate the process that there must be a response from either the owner of the land or the parish council. That is the scenario that has come up today. Can the Minister confirm that I am right in my understanding, which is that if people do not seek an easement, they need not go through the process? If they do, the relevant figure represents a maximum and not an "up to" figure. Having considered the matter, I understand that there is a certain leeway for councils and individuals in deciding whether to enact the full amount. I presume that the 2 per cent figure is a maximum, and I should be grateful for clarification.
I am grateful to noble Lords and to those in another place who spoke during the passage of the Countryside and Rights of Way Bill. Subsequently, however, I have had correspondence from Sally-Jane Raes of Chorleywood, who was concerned about the higher level of compensation. She felt that the legislation should read "up to 2 per cent". We cannot alter the regulations, but the Minister should clarify that.
I do not know whether Sally-Jane Raes has written to the Minister. In her letter to me, she mentioned several other things. One was the situation of those—perhaps themselves elderly—who live in older properties. Many such people are what I describe as property-rich but cash-poor. Have the Government considered making an easement on their behalf? Another point that she raised was that the market value of a house should be set at 1993 levels, not 2002 levels; that would make a huge difference. The interpretation of the law changed in 1993 in the Court of Appeal judgment. What is the Government's view of that? The final point that she raised was that car parking, as such, was not covered by the Act. I think that I am right in saying that we did not debate that issue. Have the Government considered whether there should, under the terms of easement, be specific allocations for parking, in cases in which a lack of space on the driveway means that cars are parked on the common, not the driveway?

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In another place, my honourable friend Mr Sayeed highlighted the fact that the Law of Property Act 1925 was never intended to stop people driving over the common to their home—not, I note, their business. It was intended to stop members of the public driving on a common while others were on the common for air and exercise. It is true that, between 1925 and 1993, no one was prevented from driving to his or her house across the common. However, the court has now denied that presumption of free access.
My honourable friend also asked how the regulations would deal with a case in which a house was sold but the former owner did not take up a request to buy the rights of access—perhaps he did not drive or did not want the rights. What position is the new owner in? That issue was raised in the other place. Will the Minister enlarge on it today?
My honourable friend Sir Paul Beresford also raised concerns in another place. He raised the issue of whether common land might be held by more than one person. If the common land were in private ownership, it might have been subdivided, and rights of access could go across more than one owner's land. What would be the position in such a case?
My noble friend Lord Trefgarne asked about the position of businesses. Again, I looked back through our deliberations, and I found that it had slipped through the net. We did not address that issue. I asked whether the legislation applied just to a house or to the fields or farm behind it. That has implications too. In Committee and at other stages of the Bill's passage, we decided that it referred only to the property. My noble friend has raised an important issue. We dealt only with domestic property, not business property. No doubt, the Minister will clarify that.
I have also had a long correspondence with Sir Sydney Chapman with regard to a letter that he received from William Pumfrey. I hope that the Minister has a copy of that letter; I understood that he was writ ten to about the matter. As it is a long and full letter, I do not want to go through it in detail. The Minister indicates that he does not have a copy so it may be helpful to the House if I cover a couple of the points raised.
Mr Pumfrey raises an interesting point. Considering the law as it previously stood, he does not see why the property should be dealt with differently and considers that Section 68 should apply to all. He makes a lengthy legal argument. Perhaps it will be more helpful if I pass the letter to the Minister after the debate. I want to indicate the fact that he has raised queries about the regulations.
As noble Lords have said, the difficulty we faced in Committee and in taking the CROW Bill through the House related to the fact that the easement and arrangements fell between parish councils and individual owners. It was the responsibility of parish councils to try to get the best possible value for all their parishioners and therefore some parishes decided to charge a high rate. We welcome the fact that the Government have imposed a maximum of 2 per cent.
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They are sensible arrangements but raise issues not only for individuals and their properties but also for parish councils in the longer term.
Finally, Regulation 15 relates to the creation of the easement and begins:
"Upon payment of the compensation sum either".
I wonder whether it should read,
"upon receipt of the payment",
because a payment can be made but not received. I do not know whether it is normal legal practice within drafting orders. The Minister can perhaps clarify the matter. I support the points raised by my noble friend Lord Trefgarne.
8 p.m.
The Earl of Onslow: My Lords, I am sorry to intervene again, but my noble friend Lady Byford has put into my mind a new and important query. It relates to the access to agricultural land over common land. Let us assume that access to a farm is over common land and that we reasonably say that 2 per cent goes to the farmhouse. As the farm is a business, if the Minister accepts the force of the argument put forward by my noble friend Lord Trefgarne and supported by myself, how do we separate out the difference of access over the land to a private house and access over the same land to a farm or a business? I hope that the Minister will forgive me for intervening a second time. It is an important point arising from what my noble friend Lady Byford said.
Lord Whitty: My Lords, some interesting and complex points have been raised. Perhaps I may first deal with the issue of commercial versus domestic properties. The recollection of the noble Baroness, Lady Byford, and other noble Lords is correct; we were talking largely in terms of households or houses. Nevertheless, the argument that there has been an established practice of access morally and legally must equally apply to legal commercial activity. The example raised by the noble Lord, Lord Trefgarne, was of covert extension of the premises into a business activity for which planning permission had not been obtained. However, where there is established use, logically it does not matter what the premises were previously used for. Therefore, commercial use—I shall turn to agricultural use in a moment—establishes the same dilemma as regards the compensation to be given to the landowner and the rights to be given to the property.
In the commercial case, the valuation of the premises would reflect their commercial value. If there is a change of use, the situation changes. If one is moving from a residential to a commercial activity, the previous arrangement falls and the valuation is then based on commercial use. If the commercial activity is non-legal—if there is no permission for it—the landowner has a case that the valuation should reflect the commercial activity. The noble Lord. Lord Trefgarne, raised an important point but in most circumstances—except in a change of use or an

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unlawful use—the valuation of the property would yield a higher return to the landowner if it were commercially used.
As regards the agricultural dimension, it would be unusual if the only access were at the same point as the access to the farmhouse. In any case, a valuation would relate to the total area for which access was being sought. That could be a house, a commercial property or land. The application must clearly describe the premises which are served by the access and they would be valued accordingly. If there were other access to the farmland, one would expect the application not to include it because that would raise the price. In rare circumstances where the only access was to the farmhouse and the land, the logic of the situation would be that the compensation would be based on the valuation of the totality of the premises to be covered by that access. However, that situation would be rare and special provisions may need to apply. It is probably unlikely to arise.
I repeat that if there is increased commercial activity, or if there is changed commercial activity or a change of use of any kind, the provision for the valuation based on previous commercial use or domestic use is no longer valid. In that situation, and only in that situation, will a new owner, for example, have to face up to a second sum of compensation. In normal circumstances where a valuation has been made and the compensation paid, a new owner would not be faced with further compensation. The easement would stand, as it would in common law, for the future unless there were a change of use.The noble Baroness, Lady Sharp, asked whether 2 per cent was the maximum or the set fee; in other words, whether one could negotiate up to the maximum. Under the regulations, 2 per cent is the prescribed amount. We are talking about a situation which must be dealt with by regulation and 2 per cent is the figure. Of course, that does not preclude landowners and those who require access reaching a settlement of less than 2 per cent outside the regulations. That would apply to local authorities as much as it would apply to private landowners. Therefore, people can reach a lower figure, but not via Section 68 of the Act or via these regulations.
The noble Baroness, Lady Sharp, asked about the situation in which ownership of the common land is not known. That is difficult conceptually because the situation could not arise if the owner were not known; if the person requesting access raised the issue, no one would apply for the compensation or would require it.
The Earl of Onslow: My Lords, I speak from personal experience. With regard to small plots of common land, it can be incredibly difficult to discover who is the lord of the manor and to whom moneys should be paid. As a consequence, if the land covers an area on which a mortgage is to be raised, then the mortgagor will ask, "Have you got an easement?". I must respond by saying, "No, because I do not know whom I should pay". "Right, you cannot have a mortgage". This is an important point.
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I do not know how it is to be dealt with, but such circumstances can arise. I have been involved in exactly that kind of case at home.
Lord Whitty: My Lords, I see the problem. I suppose that there is an obligation on those seeking access to try to find out who is the owner, but if that is not possible and no owner comes forward to claim compensation, then it is conceivable that such compensation might be required at a later stage. However, at the time of any change of ownership, the situation would remain as it stands at that point; namely, that no easement would be required and no easement would be granted. Given that, it would be difficult for a mortgagor to make a stipulation.
Provided that the normal searches had been carried out and that efforts were made to trace the owner and to check whether that owner was likely to require compensation, then the position is clear.
The issue with regard to common land forms part of a significantly wider matter. During the course of our debates on the Bill I recall that my noble friend Lord Williams of Elvel, who is not in his place this evening, raised the issue at some length and has returned to it subsequently. It needs to be addressed as part of a much wider problem. There are unregistered areas of common land, in particular on town and village greens, where the provisions might otherwise make it a criminal offence to assert access. Furthermore, there are certain obscurities with regard to the legal position in those situations. Regrettably it is not always possible to offer a clear legal view since many cases go back into the mists of time.
However, the Government have indicated that they are considering the matter as part of an administrative review of legislation generally on common land. We hope shortly to announce an initiative in the area. However, I regret that I cannot give a full answer tonight.
Baroness Sharp of Guildford: My Lords, I shall be brief. There is a continuing problem with regard to non-ownership and village greens because of the issue of mortgages. I think that the Minister should bear it in mind.
8.15 p.m.
Lord Whitty: My Lords, I accept the point made by the noble Baroness. That is why the matter will form part of our consideration on a wider review of common land. Not only in this area are there potential legal problems with regard to the unclear situation of the legal owners. Regrettably it applies in a number of areas around the country, and will probably apply in areas about which we do not yet know. As I have said, the problem will be addressed as part of a consideration of the wider context.
The noble Baroness, Lady Byford, asked a series of questions. She queried why property values were to be set at current levels; namely, at the point at which someone files an application rather than freezing values at any given point, such as in 1993. It is

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reasonable that at the point at which compensation is paid, that compensation should reflect market values at the time. That is why we have stipulated the current value rather than fixing it at the point at which the law was clarified.
The noble Baroness asked about payment by instalments. Nothing in the regulations would prevent an agreement from being made which allowed the payments to be made in instalments, if that was agreeable. However, the 2 per cent is the prescribed rate.
The noble Baroness also asked about car parking. The matter was not touched on when we debated the primary legislation. It might be covered by the easement, but it would have to be proposed as a part of the application at the time. I think it would also have to be an established practice and position about which no one would argue. For that reason, I think that the number of circumstances under which this procedure would cover car parking arrangements would be relatively limited.
The noble Baroness also referred to a letter which I regret I have not seen personally, although I appreciate that it is with the department. As a result of that letter, the noble Baroness asked why there is a differential between the various ages of property. The answer is that the law changed in 1925 and 1930. Indeed, one could argue that before 1925 no criminal offence would have been involved and that any payment would not be logical. My noble friend Lord Williams of Elvel—I hope that he will not mind my referring to his words in his absence—has made the point quite forcefully. On balance, we reached the conclusion that there was a residual possibility of a human rights issue for the landowner and therefore we have prescribed the minimal 0.25 per cent rate. However, the reason for the differentiation is that the law changed during that period, in particular in 1930.
Baroness Byford: My Lords, I thank the Minister for allowing me to intervene. The whole thrust of Mr Pumfrey's letter turns on the fact that, because the law changed, it has implications. Previously they may have been acting legally, but that was no longer the case once the law changed. That is the ground on which Mr Pumfrey's argument is based.
I appreciate that the matter is technical and legalistic. However, if the Minister is happy to receive a copy of the letter, then I shall ensure that it is sent.
Lord Whitty: My Lords, I am grateful to the noble Baroness. I shall certainly respond.
She also raised a question of whether this should be regarded as a receipt rather than a payment. It states in Regulation 13 that, on payment:
"The land owner shall …provide the applicant with a written receipt".
That then provides evidence of payment. The two are inter-related. I think that the noble Baroness will find that it is normal to refer to "payment" rather than to "receipt" in regulations of this kind.
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My noble friend Lord Faulkner raised the issue of publicity. As the regulations come into effect we shall consider the need for publicity both for those seeking access and for the landowners involved.
I believe that I have now dealt with most of the questions that were put to me.
Lord Trefgarne: My Lords, before the noble Lord sits down, could he clarify the position with regard to what happens when a house owner has secured an easement, perhaps through the provision of these regulations, and then secures a dramatic change of use for those premises from simple residential purposes to light industrial use? The value of that property will then be hugely enhanced. Presumably, however, the owner would not have to pay anything more. Would that be the case?
Lord Whitty: My Lords, on any change of use the landowner would have the right to return to indicate that the valuation of the property in its legal change of use should be reflected in the easement. Therefore the difference should be paid by the new owner or the owner who had acquired planning permission for wider purposes. Indeed, even if the property had already been valued for commercial purposes, but those purposes were then significantly extended, the reflection would also apply.
The Earl of Onslow: My Lords, I am sorry to interrupt yet again but I have picked up a point from what the noble Lord said. If a man who has a large garden and a farm at the back through which people pass suddenly gets permission for change of use for housing or an industrial estate, the value of his land goes through the roof. Normally if you have a ransom strip you immediately go on holiday and open a Swiss bank account because it becomes very valuable indeed—I believe that the courts have found it to be up to a third of the value of the property.
If someone gets an enormous increase in value, it seems rather unfair on the local authority—let us say Guildford Borough Council—or the Malvern Hills Conservatives or even a private owner of common land that they should not get some of that enormously enhanced value. The 2 per cent on existing rights for houses seems absolutely reasonable and no one will argue about that, but to limit it to 2 per cent of the increased value of a whacking great commercial gain strikes me as a little unfair. It is of no benefit to the Government and it could be construed as a disadvantage to local authorities—some of which own large chunks of common land and look after it for the benefit of the community—that they should not be able to benefit from it. Perhaps the Minister will look at the issue again, think about it, and then come back to us.
Lord Whitty: My Lords, procedurally I cannot come back to the House. Clearly the noble Earl has raised an issue. Although of course we are talking about a situation where access has been established in the previous use and not about ransom strips in the

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normal sense, if there is a huge increase in the value of the land as a result of planning permission change and industrial development, 2 per cent of the increase seems a reasonable return. However, there may be situations where that is not apposite. We shall have to see how matters work out. I am certainly happy to learn from instances such as the one referred to by the noble Earl.
On Question, Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.21 to 8.30 p.m.]

Justice (Northern Ireland) Bill
Consideration of amendments on Report resumed on Clause 7.
[Amendments Nos. 40 to 43 not moved.]
Clause 8 [Tribunals for considering removal]:
Lord Maginnis of Drumglassmoved Amendment No. 44:
Page 6, line 23, leave out "First Minister and deputy First Minister, acting jointly" and insert "Lord Chancellor"
The noble Lord said: My Lords, this amendment and Amendments Nos. 45 and 46 are in many ways the reciprocal of Amendments Nos. 39 to 41. I beg to move.
Baroness Scotland of Asthal: My Lords, Amendment No. 44 removes the powers of the First Minister and Deputy First Minister to convene a tribunal to consider the removal of the Lord Chief Justice and places this power in the hands of the Lord Chancellor. Amendments Nos. 45 and 46 remove the First Minister's and Deputy First Minister's role in convening tribunals to consider the removal of any other judicial post holder. They instead provide for either the Lord Chief Justice or the Lord Chancellor to convene these tribunals.
The review recommends (at paragraph 6.136) that,
"removal from office of a judge or lay magistrate should only be possible on the basis of the 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".
By removing the role envisaged for the First Minister and Deputy First Minister in 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 processes.
From other amendments tabled to Clauses 4 and 5 both in Grand Committee and by colleagues in another place, it is clear that the noble Lords are again wary of the role to be played by the First Minister and
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Deputy First Minister in the appointment and removal process. It is clear that many 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.
The Government have faithfully reflected the review in this area. There are also safeguards in that the Prime Minister must be consulted before a tribunal to consider the removal of the Lord Chief Justice and other Lords Justices can be convened, and that the Lord Chief Justice must be consulted in regard to other removals.
We must have faith in the new institutions and give every opportunity for devolution to work. I urge noble Lords to examine these issues in the round and to see that they contribute something of significance, and therefore to withdraw the amendments.
Lord Maginnis of Drumglass: My Lords, I have listened to what the Minister has said. I shall not repeat the caveat that I have applied. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 45 and 46 not moved.]
Clause 9 [Lay magistrates]:
Lord Maginnis of Drumglassmoved Amendment No. 47:
Page 8, line 8, leave out paragraph (d).
The noble Lord said: My Lords, I may have been wrong in the drafting of this amendment, which seeks to remove paragraph (d) in subsection 5. I made some assumption that the following two lines applied to subsection 5(d). Perhaps I may leave matters to those who have tabled Amendment No. 48, which is grouped with this one. I am generous enough to admit that it is a better amendment than mine.
I turn to Amendments Nos. 49 and 50, grouped with this one. I do not need to argue for Amendment No. 49. It is the repeat of a previous amendment in terms of the wording. Amendment No. 50 seeks to add a new subsection:
"The Lord Chancellor must remove a lay magistrate from office if he has been convicted of a criminal offence".
I have little to add, other than to say that the amendment makes patently good sense. Again, I believe that if the Government are not determined to sever—or at least to weaken—the link between Northern Ireland and the rest of the United Kingdom, they will accept the amendment.
I noted the alacrity with which the Lord Privy Seal sought to avoid my question about whether there is some external arrangement relating to the appointment of High Court judges and other senior personnel. He dodged it like a centre three-quarter by applying the question simply to an amendment that was under discussion at that time. It is a serious question; it is a general question; and one that I might appropriately put again in terms of Amendment No. 50, I beg to move.
Lord Glentoran: My Lords, I am slightly surprised at the weight that is given to the Lord Chancellor in

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dealing with lay magistrates. In relation to Amendment No. 50 dealing with the removal of lay magistrates by the Lord Chancellor, I should like to think that there would be no difference in criteria as between Northern Ireland and England and Wales. I do not know the answer, but the noble and learned Lord the Attorney-General has now joined us and I am sure that he will be able to enlighten us if the noble Baroness does know, as I am sure she does. I do not know what the Scots do up in the wild Celtic regions, but I should like to think that in this respect the Northern Ireland judiciary will operate through the Lord Chancellor, if that is the way in which the system is to be set up, and that there will be no difference in the way in which lay magistrates are removed from office for similar or identical reasons.
My amendment relates to the Lord Chancellor having a free hand. The noble Baroness said in Committee that if somebody lived 100 yards over the defined border, a decision would be needed on whether they can act. I am not sure whether that is relevant. On the issue of people convicted of a prescribed offence, once again we are trying, in a very difficult climate, to put together a criminal justice system that the whole population can believe in and trust. I warned the Grand Committee that I would go on about this. Whatever happens, we have to attempt not to play politics or to get involved in quid pro quos somewhere way down in the seamy underlying issues of the Bill. We have to be up front and make it clear that there are no overrides such as,
"unless the Lord Chancellor otherwise determines in the case of a particular person".
That is not necessary. It is untidy. In my life as a soldier or in industry, if I produced a document detailing a well thought-out and logically argued case I would not then say at the bottom, "But if I think something different then we'll do something different". I am sure that the same applies to the noble Baroness and to the noble and learned Lord the Attorney-General, yet that happens throughout the Bill. This is another case in which a set of conditions has been seriously prescribed—referring to lay magistrates in this case—right down to subsection (5)(a), (b), (c) and (d), followed by,
"unless the Lord Chancellor otherwise determines".
Lord Tebbit: My Lords, it seems extraordinary that the Government should seek a discretion of the kind that the amendment of my noble friend Lord Glentoran would rule out.
Like a number of other noble Lords, I served for two years as Chancellor of the Duchy of Lancaster. In that capacity, I had responsibility for the appointment and discipline of the lay magistracy in the county palatine of Lancaster. It was a difficult time, during the disturbances around the question of the community charge. In areas around Liverpool in particular, a number of elected councillors had refused to pay their lawful taxes and had been so convicted.
It never occurred to me—nor did it even occur to their supporters—that the consequence of that should be that they would be dismissed from the Bench. The
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reasoning was clear. It would be impossible for them, having been convicted of an offence, then to be on the Bench trying somebody else for a similar offence.
I hope that the noble Baroness will tell us what sort of reasons would move the Lord Chancellor to determine that a criminal offence should not disqualify a person from sitting as a magistrate.
Looking at the other amendments in the group, I again find myself in great sympathy with the line taken by the Ulster Unionists, for exactly the same reason. A magistrate cannot run with the hare and hunt with the hounds. It is as simple as that. Unless we uphold that principle, we shall once again create a different standard for the administration of justice in two parts of the kingdom. The more the Government talk about the peace process, the normalisation of affairs in Northern Ireland and the end of the emergency, the more frequently we find them legislating to make permanent a different standard of justice in the two parts of the kingdom. Unless Ministers are fundamentally stupid, which I do not believe to be the case, there is only one conceivable reason why they should do that: because they do not regard Northern Ireland as a part of the United Kingdom like the other parts of the kingdom. That is the ethos behind the Bill. That is why I object to it most strongly.
8.45 p.m.
Baroness Scotland of Asthal: My Lords,I shall deal first with the comment made last by the noble Lord, Lord Tebbit. I understand that this is an area that excites passion and that there are strong feelings on it. However, it is wrong to say that Her Majesty's Government do not see Northern Ireland as a fundamental part of the United Kingdom. It is. However, it is a part of the United Kingdom that has been troubled these past 30 years. Noble Lords in all parts of the House, together with those in Northern Ireland, now have to seek to chart a new path. We need courage to do that. We also need to be temperate and brave in looking at what is best and which road we should all travel on. We are not helped in that difficult task if the bona fides of what we are trying to do together are not properly understood.
We are looking to craft a way forward that will enable us, with safety and with proper safeguards and conditions, to place Northern Ireland in a position in which its people would wish to be within this United Kingdom. The Bill does nothing to detract from that purpose.
Lord Tebbit: My Lords, I am grateful to the noble Baroness for that. Can she assure me that the policy of her party—I hope that she can speak for her party on this occasion—is no longer to seek the union of Ireland by consent, as it has long been?
Baroness Scotland of Asthal: My Lords, the noble Lord knows well that every Minister who speaks from this Dispatch Box does so on behalf of Her Majesty's Government. The Government's policy is clear. If we needed any further clarity, we find it in the Good Friday agreement and in the review, which was

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undertaken with great skill and fortitude by the members who were charged with this difficult task. Notwithstanding the passions and the difficulties, we are not assisted in helping to craft this new path by expressions that seek to undermine the bona fides of that effort.
One of the points that was clear in Grand Committee—and I think that we all took comfort from it—was agreement on the fact that we all want the same things. We may have expressed our objectives in different ways, but our aim—what we all seek to achieve—was identical. I notice that the noble Lord, Lord Tebbit, is shaking his head. I hope that he will not do so when I say that it was hoped that we would be able to secure a good and secure way forward which would enable devolution and to create conditions which would enable the system of justice in Northern Ireland to continue on the safe path down which it had started. There cannot be any disagreement about that.
Let us turn to this group of amendments. These amendments were tabled initially in Committee and address the important issue of qualifications for lay magistrates. I welcome the opportunity to repeat the reasons why they should be resisted. Amendment No. 47 removes from the list of disqualification provisions for lay magistrates, which can be waived by the Lord Chancellor, the paragraph stating 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 the new office of lay magistrate. The Bill will allow the Lord Chancellor to prescribe, within parameters, the circumstances in which a person would not be eligible for appointment as a lay magistrate. Amendment No. 48 seeks to remove the Lord Chancellor's discretion in applying these qualifications. The Lord Chancellor has this discretion in making justice of the peace appointments in England and Wales.
If this amendment were accepted, the Lord Chancellor would not, for example, be able to appoint candidates who departed in even the smallest way from the eligibility criteria. This would exclude, for example, a candidate who lived just five miles beyond the prescribed distance. The Government believe that such flexibility is essential, and therefore ask that this amendment be withdrawn.
Amendment No. 49 provides that a person convicted of a criminal offence will be disqualified without the caveat that it may be waived by the Lord Chancellor. Amendment No. 50 requires the Lord Chancellor to remove a lay magistrate if he is convicted of a criminal offence. The effect of the provisions would be, first, to remove any discretion the Lord Chancellor has to prescribe offences which might merit disqualification, so that even minor driving offences would be caught; and, secondly, to remove any discretion to set aside convictions in deciding to appoint such an individual as a lay magistrate. It might therefore be said that those knowingly or unknowingly driving with a defective headlight, for example, should
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not sit as magistrates. Although I shall not do so, one could cite other such examples. There are minor issues which the Lord Chancellor is quite properly entitled to disregard.
Lord Tebbit: My Lords, the noble Baroness may correct me, and she almost certainly will, but would that not be an offence under the Road Traffic Acts which did not qualify as a criminal offence?
Baroness Scotland of Asthal: My Lords, that is precisely right. However, the prescription which the amendment provides covers any conviction that occurs in a criminal court such as a magistrates' court. Those caught with a defective headlight are summoned to the magistrates' court, dealt with for the offence and perhaps fined. So all such minor infringements are caught by the amendments.
Lord Glentoran: My Lords, what is the difference between the Lord Chancellor's powers to remove magistrates in England and Wales and those which are proposed in the Bill for removing magistrates in Northern Ireland?
Baroness Scotland of Asthal: My Lords, as I understand it, the Lord Chancellor's powers are not materially different from those which prevail in England and Wales; they are exactly the same. It is only parity; we are not doing anything unusual. I understand the suspicion which some feel that somehow, through sleight of hand, something else may be happening. I can only reassure your Lordships that that is not the case.
I also understand, if I may put it colloquially, where noble Lords are coming from. However, the Bill has struck a balance, and we believe that it is the right balance. Lay magistrates play a relatively modest, if important, role in the justice system. We think that it would be regrettable if there were no flexibility to disregard relatively minor criminal convictions if the case for appointing an individual were otherwise overwhelming. We are not making it something that "shall happen"; it merely gives the Lord Chancellor a discretion to say that, in an appropriate case, it may happen.
As the Leader of the Opposition has noted in another place, just because a person has a past, that does not mean that he or she cannot play a role in the future. If I may respectfully say so, that sentiment has been very graphically displayed today in the very generous comments of the noble Lords, Lord Tebbit and Lord Alton, about those who have turned over a totally new leaf after a very troubled past. We support that sentiment. We disagree with these amendments which seek to remove that possibility.
Lord Maginnis of Drumglass: My Lords, I have listened to the Minister's reply, but again I am not convinced. The point made by the noble Lord, Lord Tebbit, about motoring offences seemed to contradict the Minister's point. Especially in these circumstances, I regret to say that I am not a legal mind. I hope that

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the noble Lord, Lord Glentoran, will press his Amendment No. 48. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 50 not moved.]
9 p.m.
Schedule 4 [Functions of justices of the peace]:
Lord Maginnis of Drumglassmoved Amendment No. 51:
Page 86, leave out line 36.
The noble Lord said: My Lords, in Grand Committee we had an interesting debate on the issue of binding over to keep the peace and binding over to be of good behaviour. On that occasion I was totally overwhelmed by the Minister's citation to me of a 600-year-old law which I believe was the Justices of the Peace Act 1361. Even I do not remember that.
It was to some extent the fact that we were going back so far to justify something that appeared to me on the surface to be an infringement of human rights; that is, the binding over to be of good behaviour, that persuaded me to look at the measure more carefully. I was also moved by the fact that in the opening minutes of the Committee stage the noble Lord, Lord Smith of Clifton, berated the Government for the lack of awareness of human rights in the Bill. I thought that perhaps I could motivate those who sit adjacent to the noble Lord to some excitement over the issue on this occasion.
I discovered—I hope that I have interpreted it correctly—that binding over to keep the peace dates back to yesteryear and that, as the noble Baroness reassured me, it is often made subject to a condition, for example, that the person bound over to keep the peace shall not possess, use or carry a firearm. That measure pertains to the Firearms Act 1968. I discovered that formerly there was power to bind over a person to be of good behaviour in cases where that person's behaviour did not amount to a breach of the peace but was found to be contra bonos mores, which has been described as conduct which is,
"wrong rather than right in the judgment of the majority of contemporary citizens".
That may be a contravention of Article 10(2) of the European Convention on Human Rights.
I draw the noble Baroness's attention to the judgment in Hashman and Harrup v UK (2000) 30 EHRR 241. I do not know what those figures mean, but the noble Baroness will. In that case, the European Court of Human Rights said that,
"the nature of requirements imposed on a person bound over to be of good behaviour was insufficiently precise to qualify as a `restriction … prescribed by law' under the ECHR, Article 10(2), so that binding over the applicants to be of good behaviour had been a breach of their rights under that Article".
Further investigation suggests that the power to bind over to be of good behaviour is not 600 or so years old but dates back only to the Justices of the Peace Act 1968. It is therefore for the Government to
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decide whether new legislation—particularly the new legislation we are discussing—should incorporate within it that vague and ill-defined binding over to he of good behaviour. If the conditions applying to that are wrong rather than right in the judgment of the majority of contemporary citizens, and if that is the basis on which the bound over to be of good behaviour element is included, one has to ask whether we are talking about contemporary citizens in terms of a specific area, or an area that would encapsulate the entire area of Northern Ireland, or whether it would extend beyond that into the United Kingdom as a whole. That judgment of contemporary citizens must be exceedingly hard to define.
I am certain that the learned noble Baroness will understand that over 30 years elements within Northern Ireland have become particularly litigious and will find any weakness or contradiction in the law and use it as a route to a metaphorical goldmine. On that basis, I appeal to the Government to look carefully at whether they are prepared to go to the wire on this particular issue, or whether a binding over to keep the peace which can be qualified by other legislation is the way forward. I beg to move.
Lord Smith of Clifton: My Lords, I am impressed by the diligence with which the noble Lord, Lord Maginnis, has researched into the legal archives. Although I agree with him that human rights are of vital importance and should be a crucial leitmotif throughout the Bill, without notice I do not have recourse to expert advice in order to form a judgment on what the noble Lord said. I look forward to hearing the learned noble Baroness enlighten me.
Baroness Scotland of Asthal: My Lords, I am most happy to do so. The noble Lord, Lord Maginnis., accurately referred to the case of Hashman and Harrup., but I want to put the matter in context. I explained the situation in Committee but I am more than happy to help again.
As noble Lords know, the amendment deals with the question of whether someone should be bound over to keep the peace and to be of good behaviour. In brief, Amendment No. 102 seeks to amend new Section 103A of the Judicature (Northern Ireland) Act 1978, to remove the power given to courts of record to bind over to be of good behaviour, but not to change the power to bind over to keep the peace. The noble Lord's memory was right: I said, and I say again, that this power has been available since the Justices of the Peace Act 1361. The effect of the amendment, therefore, would be to remove a power that has existed for centuries.
The purpose of new Section 103A is simply to put beyond doubt the fact that courts of record exercising a criminal jurisdiction will retain any power to bind over persons before them, which they currently

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possess. It is expected that a court, when making such an order, would be careful to specify what is required of a person,
"to be of good behaviour",
in any particular case before it. The difficulty, as I understand it, with the Hashman and Harrup case was that there was a general assertion to be of good behaviour but no specification of how that good behaviour should manifest itself. The proposal is that when courts bind a person over to keep the peace and to be of good behaviour, they go on to specify, "In that, you are to refrain from or fail to do A, B, C and D". That will be the proper basis on which the exercise of that judicial function will be made. Then we confidently expect that any judicial officer so doing would be ECHR compliant.
Lord Maginnis of Drumglass: My Lords, I am not convinced that this is not a very liberal interpretation of the law. I detect that the Minister is slightly amused by my layman's assertion. Within the duality of this provision, binding over to keep the peace is adequate. It will, because it can be qualified, serve the purpose. Binding over to be of good behaviour is vague in terms of its qualification and geography, to the extent that I wish to press the amendment to a vote.
The Deputy Speaker (Lord Ampthill): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think the Not-Contents have it.
On Question, amendment negatived.
Clause 19 [Judicial oath or affirmation]:
Lord Glentoranmoved Amendment No. 52:
Page 13, leave out lines 28 to 39 and insert "take the oath of allegiance and the judicial oath or make the appropriate affirmation"
The noble Lord said: My Lords, the amendment goes back to the thorny problem of the oath of allegiance. I am back on my harpsichord, as it were. We should let sleeping dogs lie. We should stay in line with the agreement.
Why do the Government have to push the politics too far in this technically legal Bill? It is clear in the Northern Ireland agreement that various matters do not need to be—and, indeed, cannot be—changed. Northern Ireland is, despite the Good Friday agreement—within that agreement and outwith it—an integral part of the United Kingdom. That argument can be used in relation to a number of issues raised in the second half of the Bill. But the one part of the democracy of Northern Ireland which has to be independent is the judiciary. Criminal justice is part and parcel of a "totally independent system". By that we mean a system which is totally divorced from and independent of party politics and national politics of any kind.
Therefore, why should those in the judiciary carrying out their daily work in Northern Ireland operate under any conditions different from those
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which pertain in England and Wales? The answer is that there is absolutely no need. There is no need as regards politics. There is no need as regard the Good Friday agreement. Unless there are some funny, hidden ideas of which I know nothing, there is no obvious need. As the noble Baroness, Lady Scotland, knows only too well, the power and independence, and all that goes with that—the majesty of an independent judiciary—has to stem from a power somewhere within our realm. That power is our sovereign. No logical objective rhyme or reason has been given in Committee, or in any debate that I have heard in this House, as to why this part of the judicial system needs to change.
Judging by earlier remarks in debate, the situation could arise with judges sitting together in an appeal court who have operated under a different system. It breaks the unanimity of the British judicial system. Why do our Government wish to do so? I fail to understand. I beg to move.
9.15 p.m.
Lord Rogan: My Lords, I support the noble Lord. In doing so, perhaps I may speak also to Amendments Nos. 53 and 54.
The affirmation will be taken by the most senior office holders in Northern Ireland. There is a distinction between "upholding" and "according to". "Upholding" is a more positive assertion of interest than simply "according to". Although I may not take the issue to a vote, I suggest that the amendments tabled have validity. Those with responsibility for the administration of justice must uphold the continued independence of the judiciary.
Lord Mayhew of Twysden: My Lords, at this time of night, perhaps one may be forgiven for allowing one's mind to turn towards the words of the Magnificat which are relevant to the amendments referred to by the noble Lord, Lord Rogan:
"Lord, now lettest thou thy servant depart in peace according to thy word".
"Upholding" is not exactly right. 1 part company with him there.
Earl Ferrers: My Lords, if I may interrupt my noble friend, I believe that he was quoting the Nunc Dimittis and not the Magnificat.
Lord Mayhew of Twysden: My Lords, that is absolutely right. The Magnificat would not have met the point. It is because of the lateness of the hour to which I have already alluded.
I support the amendment moved by my noble friend Lord Glentoran and supported by the noble Lord, Lord Rogan, for this reason. A good deal of symbolism is involved with the oath of allegiance. We have all noted previously that Northern Ireland has a good deal of symbolism. Some can be abused but some are very important. I believe it to be important that the oath of allegiance should continue to be taken in Northern Ireland for the point recently made by my

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noble friend Lord Glentoran. It is important that there should be no unnecessary departure from what is common to the remainder of the United Kingdom.
As we all recognise, there are circumstances in Northern Ireland that are separate from those that obtain in the rest of the United Kingdom. Therefore, to change the oath in the way provided by the Bill may not perhaps matter if it was not going to cause affront. However, I am afraid that it will cause affront to people who actually represent about two-thirds of the population of Northern Ireland, and who uphold the Union with the United Kingdom.
One looks, therefore, to see whether there is any principle behind the proposal. I cannot see what principle there can be; indeed, principle points in the opposite direction because, forseeably, you will have a court sitting with a judge who has taken one oath while the other judge may have taken another. That is not just untidy; it is undesirable for rather obvious reasons. So what about expedience? Where does the expedience lie? One should perhaps consider the report of the review body. As I said in Grand Committee, the review body argued this case extraordinarily faintly. Indeed, if any noble Lord has the document to hand, the relevant paragraphs are 6.125 and 6.142. It is very much a case of, "Well, it's possible … but on the one hand … and, on the other … it could be an obstacle to people taking the oath".
I have never heard of anyone who has been inhibited from accepting judicial office because of the oath, but perhaps the Minister will be able to enlighten us in this respect. It seems to me to be a wholly disproportionate affront to those who represent the Unionist persuasion in Northern Ireland, which, as I said, is the great majority. It is not an irrational affront. By acceding to this rather tentatively argued case in the review report, the Government would, by implication, be accepting that there was something rather shaming—something that could be criticized—in the oath as it is at present administered. That would be a very grave wrong; it is a wholly rational objection that I believe Unionists take to this proposal. I hope that noble Lords will agree that the downside is wholly disproportionate to whatever advantage there may be to this proposal.
I have one further point to raise. I believe that the Minister may be able to deal with it because the noble and learned Lord the Attorney-General is sitting next to her on the Front Benches. It is not suggested that there should be some alleviation of the requirement to take the oath for Northern Ireland judges who are appointed at the Court of Appeal. As we have been reminded today, those who sit in the Court of Appeal become Privy Counsellors. When you become a Privy Counsellor, perhaps the noble Baroness will confirm that you take an oath of allegiance and then go on to take another rather blood-curdling oath about secrecy and what will happen if you do not observe it. It is not suggested that the Northern Ireland judges should be relieved of that obligation. I wonder why.
Lord Hylton: My Lords, I understand that the form of oath required of police constables and, I believe, of Queen's Counsel in Northern Ireland has already been
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modified. Therefore, there seem to be good precedents for also modifying the oath that applies to judges and other judicial officials.
Lord Tebbit: My Lords, while I sat here in the Chamber listening to this short debate the following thought came to my mind. I wonder what our American friends would make of it if a proposition were brought forward that judges in, say, Hawaii took a different oath from that taken by judges in California, or in New York State. Perhaps I may bring the idea a little closer to home. What would he thought if judges in, for example, the Basque Country took a different oath from that taken by judges in Madrid? What conclusions might come into the minds of Basque people, whether they were in favour of the activities of ETA, or peaceable citizens?
Let us take the matter a little further. If the oath put forward by Her Majesty's Government is so good, and if it is an oath that is suitable for the people of Northern Ireland, why do the Government not seek to introduce it in the remainder of the kingdom? By such a method they could ensure that all judges took the same oath. I can only assume that they see profound reasons why such an oath should not be introduced here and why the present oath taken by judges in England should not be changed in the way that they propose to change the oath in Northern Ireland.
I am sure that the noble Baroness believes that my own experiences have led me to a particularly jaundiced view of Northern Ireland legislation. I assure her that what leads me to a jaundiced view of the legislation is that it continues and exacerbates the situation in which there are two standards of law, two standards of justice, two standards by which we judge criminals within one kingdom. To my mind that is not acceptable. Nor is it acceptable to me that judges in one part of the kingdom should take one oath and in another part of the kingdom a different oath.
The Minister will probably quote Scotland to me, but she will recollect that a different history applies there—a history of how the two kingdoms were united. There is also the manner in which Scotland has been allowed, within the kingdom, to maintain its own systems of law ever since the union of the two kingdoms. This provision does not merely allow something that exists to continue, but it introduces a new difference, a new division, a new schism, to which I object most profoundly.
Lord Monson: My Lords, I agree with the Government and the noble and learned Lord, Lord Mayhew, about Amendments Nos. 53 and 54. I do not see how one can easily uphold a usage. I believe that the phrase "according to" is adequately firm and unequivocal. However, the important amendment in this group is Amendment No. 52. I wholeheartedly agree with the noble Lord, Lord Glentoran, and those who support him from various parts of the House. I do not want to prolong the debate at this time—although it is not particularly late—or to repeat points that have been made in Grand Committee.

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However, I remind noble Lords that no concessions at all have been made to the sensitivities and sentiments of Unionists south of the border. So be it. There is nothing that we can do about that, but sauce for the goose is sauce for the gander. Why should we lean over backwards to pander to the sentiments of hard-line republicans who, as public opinion poll after public opinion poll have demonstrated, comprise no more than 12 or 12.5 per cent of the population of Northern Ireland?
Lord Tebbit: My Lords, there is a simple answer to that. The republicans in this kingdom have guns and bombs and they are willing to use them. The Unionists in the Republic of Ireland do not have guns and bombs and they do not wish to use them.
Lord Monson: My Lords, the noble Lord has made an excellent point.
Lord Kilclooney: My Lords, the point has been made that because the oath for members of the Police Service of Northern Ireland and QCs has been changed that is a good precedent to follow. I have never heard such a foolish argument in my life. There is no definition of how it was a good precedent. It has been a most unfortunate precedent. It has helped to bring about the demise of the Belfast agreement. I am afraid that the Government do not realise the damage that this Bill continues to do to the Belfast agreement. I warn them yet again that the Belfast agreement is in great danger of collapse. This Bill and this particular provision form a further nail in its coffin.
9.30 p.m.
Baroness Park of Monmouth: My Lords, at the risk of repeating what I said in Committee, perhaps I can say briefly that I feel very strongly that, since in any case there are a number of references in this Bill, rightly, to the Crown, it is extremely difficult to understand why, in the major issue of the oath, we wish to behave as though the sovereign did not exist. In the Belfast agreement, as has been said, we are committed to allowing the majority to decide their fate; so long as they choose to stay in the United Kingdom they are entitled to have the same relationship with the sovereign as the rest of us.
On the police oath, I believe I am right in saying—though I shall have to check—that the police oath for Wales still swears allegiance to Her Majesty. Therefore that is not necessarily a precedent. But the important point is that, in relation to the Belfast agreement, the people have a right to stay within the United Kingdom, with all that that implies, including allegiance to the Crown, for as long as they wish.
Baroness Scotland of Asthal: My Lords, of course this short debate provokes similar passions to those it evoked in Committee, and indeed many of the points made then have been made again this evening. I shall
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try not to go over everything I said in Committee. I am sure noble Lords will have the benefit of reading it if they so choose.
Let me say straight away to the noble Lord, Lord Tebbit, that judicial and police matters are fully devolved in the Basque country; it is one of the ways they sought to resolve some of their difficulties. I regret to tell the noble Lord, therefore, that in terms of lighting upon that as an example of similarity, it was perhaps an unhappy choice. In the Basque country they have done exactly what we are seeking to do in relation to Northern Ireland.
Lord Tebbit: My Lords, I am grateful to the Minister for giving way. Perhaps she can tell us whether it solved the problems of the Basque country.
Baroness Scotland of Asthal: My Lords, if I may respectfully say so, that is not a terribly helpful approach to take and I know that that was not the noble Lord's intent. But that must be his difficulty and not mine.
The issue here must be taken extremely seriously. We are trying to chart a new way. Many noble Lords are anxious to keep to the old way, but we hope that the new way will be a little better. The noble and learned Lord, Lord Mayhew, is right in saying that we are not changing the Privy Council oath. That perhaps underlines the difference we were speaking of earlier—the difference between those who become Privy Counsellors and those who do not.
But one must examine the oath carefully. The oath in Clause 19 replicates exactly the wording recommended by the review. In recommending this oath the review group recognised the need to take account of the independence of the judiciary as well as Northern Ireland's wider constitutional status. Noble Lords will be aware that the review body examined the implications of this recommendation in considerable detail, and the Government fully support its findings.
I hear what the noble and learned Lord, Lord Mayhew, says in relation to the section which deals specifically with this recommendation. But one must look at it in the round. I took a little trouble, after the comments made by the noble and learned Lord, to look again at the report. The noble and learned Lord may find it helpful to cast an eye on the introduction to the report which deals with the modus operandi adopted by the review, particularly in relation to the matters taken into account. If the noble and learned Lord looks at paragraphs 1.5 through to 1.31, it will be seen that, in coming to its recommendations, the review body took a holistic approach to the information it culled from various sources. Its investigation into this area was extensive. Its firm recommendation—and we see no reason to gainsay it—was that the oath that has been devised and put into the clause would be the most appropriate.
In Committee, we dwelt for some considerable time on the importance of the word "realm", which I believe noble Lords accepted encapsulates the reality of this

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kingdom; namely, a United Kingdom of England, Wales, Scotland and Northern Ireland. The word "realm" can only he given that definition.
So the oath is a more modern oath. It does not specifically mention Her Majesty, but it still encapsulates by the way it is phrased the reality that this is a kingdom. The clause brings it much more into the modern day age.
I turn to Amendments Nos. 53 and 54. I agree with the comment made by a number of noble Lords that "according to law" is the more accurate phrase. Indeed, "according to law" is the phrase adopted in the current oath of allegiance and the judicial oath. We see no reason to change it. Therefore, for all those reasons, hut more particularly for the reasons I gave at great length in Committee, I invite the noble Lord to withdraw the amendment.
Lord Glentoran: My Lords, I thank the noble Baroness for that reply and I thank all noble Lords who have supported the amendment. I believe that once again the intellectual argument in relation to the oath has been won by this side of the House. I was not in any way debating whether the oath in the Bill was any better than any other oath. What I wished to debate, and the purpose of my amendment, was to maintain the status quo. I have said a number of times throughout the passage of the Bill that it has gone overboard politically when it is a technical judicial Bill. It seeks to change the environment in the judicial affairs of Northern Ireland. That is wrong.
I have said again and again that my colleagues on this side of the House and I are doing our best to advise the Government on the best way to maintain the peace agreement which they set up so successfully, but which, perhaps in hindsight, was set up in rather too short a space of time and with insufficient small print clearly defined. However, they set it up. It was a great achievement. It was welcomed and it was supported. It is no longer welcomed or supported by a large majority of the population. The Government must take that on board. Not only must they take it on board, but they must realise, and I wish they would understand, that day-by-day they are destroying the peace agreement which they set up in my province. This is yet another way of doing it. It is yet another little nail into the coffin of that peace agreement.
I just wish I could get through to someone in Government and get them to believe that what we are saying from this side of the House is in relation to sensitivities, not in relation to great dramatic changes in what the Government wish to do. We are totally behind the Bill in what it seeks to do. What we are upset about are the political nuances which are getting under the skin, upsetting and continuing to destroy the confidence of people who need the reverse done to them.
Those noble Lords who know me, know that I speak sincerely. I believe totally in what I am saying. I cannot accept the Government's rejection and I wish to test the opinion of the House.
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9.39 p.m.
On Question, Whether the said amendment (No. 52) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 98.

Division No. 3

CONTENTS

Attlee,E.

Maginnis of Drumglass, L.

Blatch, B.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Mayhewof Twysden, L.

Burnham, L.

Miller of Hendon,B.

Byford.B.

Molyneaux of Killead, L.

Cope of Berkeley, L. [Teller]

Monson, L.

Dixon-Smith, L.

Northbrook, L.

Ferrers, E.

O'Cathain, B.

Park of Monrnouth, B.

Glentoran, L.

Patten, L.

Greenway, L.

Renton, L.

Henley, L.

Rogan, L.

Kilclooney, L.

Seccombe, B. [Teller]

Kingsland, L.

Shrewsbury, E.

Laird, L.

Stewartby, L.

Lyell, L.

Tebbit, L.

MacGregor of Pulham Market, L

Vivian, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Grenfell, L.

Addington, L.

Grocott, L. [Teller]

Alton of Liverpool, L.

Hamwee, B.

Amos, B.

Hardy of Wath,L.

Andrews, B.

Harris of Haringey, L.

Archer of Sandwell, L.

Harris of Richmond, B.

Bach, L.

Hilton of Eggardon, B.

Barker, B.

Hogg of Cumbernauld, L.

Bassam of Brighton, L.

Hollis of Heigham, B.

Berkeley, L.

Howells of St. Davids, B.

Blackstone, B.

Hoyle, L.

Borrie, L.

Hughes of Woodside, L.

Brennan, L.

Hunt of Chesterton, L.

Brett, L.

Hylton,L.

Brooke of Alverthorpe, L.

Jones, L.

Brookman, L.

Lea of Crondall, L.

Burlison, L.

Lester of Herne Hill, L.

Campbell-Savours, L.

Lipsey, L.

Chandos, V.

Lofthouse of Pontefract, L.

Clark of Windermere, L.

Macdonald of Tradeston, L.

Crawley, B.

McIntosh of Haringey, L. [Teller]

David, B.

Davies of Coity, L.

McIntosh of Hudnall, B.

Davies of Oldham, L.

MacKenzie of Culkein, L.

Desai,L.

Mackenzie of Framwellgate, L

Dixon, L.

Maddock, B.

Donoughue, L.

Massey of Darwen, B.

Dormand of Easington, L.

Mitchell, L.

Dubs,L.

Morgan, L.

Elder, L.

Pendry, L.

Evans of Parkside, L.

Pitkeathley, B.

Evans of Temple Guiting, L.

Ramsay of Cartvale,B.

Farrington of Ribbleton, B.

Rennard, L.

Faulkner of Worcester, L.

Rogers of Riverside, L.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Roper, L.

Gilbert, L.

Russell, E.

Golding, B.

Sainsbury of Turville, L.

Goldsmith, L.

Scotland of Asthal, B.

Goodhart, L.

Sharp of Guildford,B.

Gordon of Strathblane, L.

Shutt of Greetland.L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Smith of Clifton, L.

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Smith of Leigh, L.

Whitty,L.

Stone of Blackheath, L.

Wilkins, B.

Symons of Vernham Dean, B.

Williams of Crosby, B.

Taylor of Blackburn, L.

Williams of Mostyn, L. (Lord Privy Seal)

Thornton, B.

Tomlinson, L.

Williamson of Horton, L.

Wakefield, Bp.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.50 p.m.
[Amendments Nos. 53 and 54 not moved.]
Schedule 7 [Functions of Advocate General]:
Lord Lairdmoved Amendment No. 55:
Page 95, line 20, leave out "Public" and insert "Crown"
The noble Lord said: My Lords, I do not want to take up too much time today because much of the argument has already been rehearsed and time is moving on. In moving Amendment No. 55, I want to speak also to Amendments Nos. 57, 59, 62 and 70. The effect of the amendment is to move the word "Public" and insert the word "Crown" in the concept of the prosecutor's service for Northern Ireland. It will then be the "Crown Prosecution Service" for Northern Ireland.
This may seem to be another occasion on which the Unionists are trying to produce more British symbols and to enhance those which exist. That returns us to the point made with great passion by the noble Lord, Lord Glentoran, in relation to an earlier amendment, that the situation in Northern Ireland is not very good. It is extremely poor and fragile.
I greatly fear for the Belfast agreement. It is a difficult situation for those of us who from the Unionist perspective have put a great deal of political stock, time, emotion and effort into working the Belfast agreement. We now find ourselves on extremely difficult territory. We are on crumbling territory; a quicksand which is likely to suck us in to our detriment. Large sections of the Bill do not come into effect until after the Assembly elections next year. I share the concern of noble Lords that the result of the Assembly elections will be such that the Bill will never be brought into force in Northern Ireland.
It is not merely a case of asking for the word "Crown" to take the place of the word "Public" in order to be in line with the rest of the kingdom. It returns to the basic point and to the difficulties we have in Northern Ireland in trying to keep together a community that has been under threat. It has undergone extreme difficulties and believes that its way of life, the basis by which it calculates its day-to-day activities and its values have been taken from it.
The use of the word "Public" is yet another example of that and it has produced a difficult situation. The Government, in trying to create a situation in which public prosecutors are separate from the police service, have produced two sets of initials which are almost identical. To members of the public, the public prosecution service and the Police Service of Northern Ireland will seem to be the same organisation. That is
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how ludicrous the situation is. In my view, and in the view of most people in Northern Ireland, the change is being made simply to appease the Irish republicans and because, as the noble Lord, Lord Tebbit, said, they are armed to the teeth and we are not.
That is a fact of life and it is very sad and difficult. I say to noble Lords that when as a result of this Bill and other actions the Belfast agreement tumbles down, please do not come around and say that you were not warned. Please do not come around and ask what we can do about it. We have done a lot to save the situation but we cannot work miracles. I beg to move.
The Attorney-General (Lord Goldsmith): My Lords, the purpose of this amendment is to name the new prosecution service the "Crown prosecution service for Northern Ireland" rather than the "public prosecution service". We discussed the matter in Grand Committee. In response to the noble Lord, Lord Laird, I wish to make three points.
First, there never has been a Crown prosecution service in Northern Ireland. This is not a case of changing the name of something that already exists. Indeed, there has not been a service of the kind intended under the provisions of the Bill. At the moment the Director of Public Prosecutions runs a much smaller office than the new public prosecution service will be. As noble Lords know, under the Director of Public Prosecutions, the new prosecution service will take over the conduct of and be responsible for all prosecutions in Northern Ireland. So this is not a case of changing the status quo; it is a question of giving a name to a new organisation.
Secondly, why has that name been chosen? It is the name proposed by the review. It was widely welcomed during the consultations following the publication of the review report and the draft legislation. I understand that only one party had any difficulty with the name. As I pointed out in Grand Committee, the name states exactly what the service will be: it will be a public prosecution service. The name emphasises that it will be a neutral prosecution service for the public and in the interests of the whole public. It is an entirely appropriate name, not least because the head of the service will be the Director of Public Prosecutions, and thus a public prosecution service makes sense.
Thirdly, I refer to the confusion that has been suggested by the noble Lord, Lord Laird. I beg fundamentally to disagree. I suggest that no one in Northern Ireland will be the slightest bit confused. The police will be called the "police", while the prosecution service will be called either the "public prosecution service" or, if an acronym is preferred, it will be the "PPS", like the CPS in England and Wales. That will not under any circumstances be confused with the police service. Therefore I do not believe that there is any good reason for changing the name because of the risk of confusion.

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While I respect and understand the sentiments expressed by the noble Lord, this is not an occasion for any concern about the name. I invite him to withdraw his amendment.
Baroness Park of Monmouth: My Lords, before the noble and learned Lord sits down, perhaps I may direct him to Schedule 8 to the Bill, on line 21 of page 99. He will notice that the office referred to is:
"Her Majesty's Chief Inspector of the Crown Prosecution Service".
Is that a slip?
Lord Goldsmith: My Lords, I am happy to answer the question put by the noble Baroness, although I do not think that it arises out of anything that I have said. It is a reference to the Crown Prosecution Service which exists in England and Wales and therefore it relates to that and not to anything else. I hope that that helps the noble Baroness.
Lord Laird: My Lords, I am most grateful to the noble and learned Lord the Attorney-General for setting out his reasons for not accepting the amendment. I must say that there was nothing surprising in what he said, but the debate has allowed me the opportunity to make my points. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goldsmithmoved Amendment No. 56:
Page 96, leave out lines 35 to 43 and insert—
"32 In section 9(1) of the Official Secrets Act 1989 (c. 6) (proceedings for offence under that Act), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland".
33 In Article 8(11) of the Iraq and Kuwait (United Nations Sanctions) Order 1990 (S.I. 1990/1651) (as substituted by the Iraq and Kuwait (United Nations Sanctions) (Second Amendment) Order 1990 (S.I. 1990/2144)) (proceedings for offence under that Order). for "Attorney General for Northern Ireland or" substitute "Advocate General for Northern Ireland or the Attorney General for".
33A In section 31(1) of the Chemical Weapons Act 1996 (c. 6) (proceedings for offence under section 2 or 11 of that Act), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland".
33B In section 117(3)(b) of the Terrorism Act 2000 (c. 11) (proceedings for offence committed for purpose connected with affairs of country other than United Kingdom), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland".
33C In—

(a) section 55 (proceedings for offence under section 47 or 50), and

(b) section 81(1) (proceedings for offence under section 79 or 80),

of the Anti-terrorism, Crime and Security Act 2001 (c. 24), for "Attorney General for Northern Ireland" substitute "Advocate General for Northern Ireland"."
The noble and learned Lord said: My Lords, I beg to move this amendment standing in the name of my noble and learned friend the Lord Privy Seal. It is a technical amendment which adds further offences to
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the list of those in relation to which the Advocate-General for Northern Ireland must give consent before a prosecution can be undertaken.
As your Lordships will recall, after devolution the new local Attorney-General will have no power to consent to prosecutions. The Director of Public Prosecutions will exercise most consent provisions, but a very few—for example, in the fields of national security and international relations—will be exercised by the Advocate General for Northern Ireland. Schedule 7 lists the offences for which the Advocate General's consent will be required. I beg to move.
On Question, amendment agreed to.
Clause 29 [Public Prosecution Service]:
[Amendment No. 57 not moved.]
10 p.m.
Lord Goldsmithmoved Amendment No. 58:
Page 18, line 36, at end insert—
"(8) The Director may set up and maintain such offices, in such places in Northern Ireland, as he considers appropriate for the exercise of his functions."
The noble and learned Lord said: My Lords, the criminal justice review recommended that the Public Prosecution Service should establish local offices from which the bulk of the prosecutorial work in their respective areas would be conducted.
We had originally thought it unnecessary to provide specifically for this in the Bill. However, given that such a power exists in the Prosecution of Offences (Northern Ireland) Order, we have now taken the view that we should replicate this in the Justice (Northern Ireland) Bill for the purposes of clarity. There is an equivalent provision in the Prosecution of Offences Act 1985 in respect of the English and Welsh Crown Prosecution Service. I hope that your Lordships will agree that the amendment is fully consistent with the review and can therefore be accepted. I beg to move.
On Question, amendment agreed to.
Clause 36 [Exercise of functions by and on behalf of Service]:
[Amendment No. 59 not moved.]
Lord Goldsmithmoved Amendment No. 60:
After Clause 37, insert the following new clause—
"EQUALITY AND NON-DISCRIMINATION
(1) Section 75 (duty on public authorities to have regard to need to promote equality of opportunity and good relations between different groups) and section 76 (discrimination by public authorities) of the Northern Ireland Act 1998 (c. 47) are amended as follows.
(2) In subsection (3) of section 75, after paragraph (cc) insert—
"(cd) the Director of Public Prosecutions for Northern Ireland;".
(3) After subsection (4) of that section insert—
"(4A) The references in subsections (1) and (2) and Schedule 9 to the functions of the Director of Public Prosecutions for Northern Ireland do not include any of his functions relating to the prosecution of offences."
(4) In subsection (7) of section 76, after paragraph (e) insert—
"(ea) the Director of Public Prosecutions for Northern Ireland;".

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(5) After that subsection insert—
"(8) This section does not apply to a decision of the Director of Public Prosecutions for Northern Ireland not to institute, or to discontinue, criminal proceedings or, where such a decision has been made, to any act done for the purpose of enabling the decision whether to institute or continue the proceedings to be made or for securing that the proceedings are discontinued.
(9) No injunction may be granted in respect of a contravention of this section by the Director of Public Prosecutions for Northern Ireland unless the court is satisfied that it would not prejudice any decision to institute criminal proceedings or any criminal proceedings.
(10) Where a party to proceedings for a contravention of this section applies for a stay of those proceedings on the ground of prejudice to a decision to institute criminal proceedings, or of prejudice to particular criminal proceedings, the court must grant the stay unless it is satisfied that continuance of the proceedings for the contravention would not result in the prejudice alleged.""
The noble and learned Lord said: My Lords, during Grand Committee, the noble Lord, Lord Desai, drew to our attention the issue of whether the office of the Director of Public Prosecutions should be designated under Section 75 of the Northern Ireland Act. I am grateful to him for raising that point. A similar amendment had been tabled in another place by the honourable Member for Newry and Armagh in respect of designation for both Section 75 and 76 purposes.
As noble Lords will be aware, Section 75 places a statutory duty on bodies to,
"have due regard to the need to promote equality of opportunity",
between groups within the nine categories of people set out in the Northern Ireland Act. It also requires them to,
"have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group".
Section 76 makes it unlawful for a body to discriminate on the grounds of religious belief or political opinion.
In response to the comments of the noble Lord, Lord Desai, I explained that the Government kept the list of bodies subject to designation continuously under review. We thought it right that as many bodies as possible should be subject to such duties but that we needed first to consider the consequences that designation might have on bodies such as the prosecution service.
I drew attention to the fact that a decision to prosecute must be made independently and based on the facts alone, as I am sure all noble Lords will agree. While we supported the idea of designation in principle, we needed to give careful thought to how the independence and integrity of the director and the prosecution process could be maintained.
As I told noble Lords who participated in the debate in a letter last week, I am pleased to say that we have made good progress in looking at that issue. I am grateful to the Director of Public Prosecutions and his colleagues, who have played a significant role in working through these issues. The progress has been such that we are now in a position to use the Bill as a vehicle for designating the Director of Public
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Prosecutions for the purposes of both Sections 75 and 76, rather than waiting to do so through another vehicle.
We have identified certain limited safeguards which will give the protections necessary to ensure the continuing independence of the Director of Public Prosecutions and the even-handedness of the prosecution process. With those safeguards in place, these duties can now be accepted.
So far as concerns Section 76, what we have done is essentially to replicate the exceptions that are made for the English and Welsh Crown Prosecution Service, which is subject to a similar statutory duty in respect of race relations.
There is no exact equivalent to Section 75 for the English and Welsh Crown Prosecution Service, but we have applied the same principle of safeguarding the prosecution process. That is done by seeking in both cases to put the prosecution process into a different category.
For the absence of doubt, I should make it clear that the obligation under Sections 75 and 76 will apply to the Director of Public Prosecutions in relation to the recruitment of public prosecutors. That is an important part of what the amendment is designed to achieve.
In Grand Committee, I said that the normal vehicle for designating bodies under Section 75 was a designation order. But, as I hope noble Lords will agree, the benefit that we have by bringing this forward is that, by using the Bill before us, we are able to include the exceptions to which I have referred, and for the reasons I have identified. That makes it sensible to bring this proposal forward at this stage. I hope that noble Lords will agree that this is a beneficial amendment. I beg to move.
Lord Mayhew of Twysden: My Lords, it seems to me that the exceptions that have been explained to us by the noble and learned Lord the Attorney-General are sensibly drafted. They are certainly necessary, and I am reassured by the fact that apparently Sir Alasdair Fraser, the DPP for Northern Ireland, is entirely content with them. I believe this to be a very satisfactory amendment.
Lord Brooke of Sutton Mandeville: My Lords, I wish my remarks to be treated as being generous and not to be misunderstood. The noble and learned Lord the Attorney-General was not present at another part of the Grand Committee proceedings where I alluded to the slowness with which these issues were addressed in terms of Section 75 at an earlier stage of the period after the Belfast agreement. I am grateful to the noble and learned Lord for the phrase "under continuous review". At that stage, "continuous review" appeared to some of us to be bordering on eternity. On this

109
occasion, eternity has been swept away. It has been done extremely briskly, and I congratulate the Government on having done it.
Lord Desai: My Lords, I thank my noble and learned friend for taking on some issues that I raised in Grand Committee.
Lord Goldsmith: My Lords, I can only thank the noble and learned Lord, Lord Mayhew, and the noble Lords, Lord Brooke and Lord Desai, for welcoming the amendments. I am very glad to have managed to achieve something which appears to produce such favour in the House.
On Question, amendment agreed to.
Clause 45 [Functions of Chief Inspector]:
Lord Glentoranmoved Amendment No. 61:
Page 27, line 2, leave out from "of" to end of line 17 and insert "all organisations in possession of criminal investigatory powers"
The noble Lord said: My Lords, we have come rather late at night to a part of the Bill which I view as especially important. Perhaps progress on it is slightly unclear. If it is, that is probably my fault. I was hoping—perhaps hope against hope—that after Grand Committee the Government might come forward with an amendment to solve the problems. I sensed that the noble and learned Lord the Lord Privy Seal agreed—I apologise if I am wrong—that, to put it politely, the functions of the chief inspector in Clause 45 need a little work. They need tidying up. I sensed that Members on all sides of the House, including the Government, felt that the list was not complete. Perhaps it could not be complete. I had hoped that we might be able to include an all-encompassing clause with examples, as has happened elsewhere in the Bill. Amendment No. 61, which would add,
"all organisation in possession of criminal investigatory powers",
was drawn up after much thought, not just by myself, but by some rather brighter brains down the corridor.
Unless the Government are inclined to table their own version, I would rather reserve the main thrust of the debate and any decisions on the amendment until Third Reading. To some extent this depends on what the Government want to do. I have said that I have no intention of dividing the House tonight, but I wish to be in a position to press the amendment on Third Reading if we cannot reach an accommodation before then.
Unless the noble Baroness or the noble and learned Lord the Lord Privy Seal tell me that it will not be possible, I feel that we can go forward on the issue before Third Reading. I know that there are sensitivities relating to the police ombudsman and others and I know that Mr Des Browne from the other place has done some work behind the scenes. If noble Lords in the Unionist party agree, I would prefer not
110
to press the amendment tonight. If the Government wish to come in, far be it from me to stop them. I beg to move.
The Deputy Speaker (Lord Lyell): My Lords, advise the House that if Amendment No. 61 is agreed to, I shall not be able to call Amendments Nos. 62 to 66 inclusive.
Lord Maginnis of Drumglass: My Lords, I shall be brief at this time of night. I agree with the substance and the sentiment expressed by the noble Lord, Lord Glentoran.
I shall make a similar point to that which the noble Lord made on the Government's slowness in tabling amendments to Clause 45 that they have recognised are necessary. I am particularly, but not exclusively, concerned about the position of the Police Ombudsman for Northern Ireland, who has extremely limited accountability at present. The only alternatives to what the police ombudsman may decide are judicial review or an annual report to the Secretary of State for Northern Ireland. That was not the intention of Dr Maurice Hayes, whose report led to the establishment of the police ombudsman.
I do not want to speak for or appear to put words into the mouth of Dr Hayes, but it appears from some of his comments that he is not a little disquieted by the lack of accountability from the Police Ombudsman for Northern Ireland.
It is essential that the remit of the new chief inspector of criminal justice is as comprehensive as possible in order that he or she can properly fulfil his or her functions. As the noble Lord, Lord Glentoran, intimated, the Parliamentary Under-Secretary of State for Northern Ireland, Des Browne, accepted that point in Committee in another place. Therefore, in my interpretation, the Government have already accepted that the list of organisations which should he inspected by the chief inspector should be as comprehensive as possible. Why is there such tardiness in completing the list?
From correspondence which I have seen, I understand that, before the end of April, an additional 19 organisations including the police ombudsman were consulted about their possible inclusion in the list of organisations in Clause 45. As there has already been proper consultation, and as the Minister in another place has accepted the need for a comprehensive list of organisations, it is now wholly appropriate that the chief inspector's remit should be extended to include that list of defined organisations.
The point is particularly important in so far as, in Committee in another place, the Minister indicated that the role of the chief inspector of criminal justice would be to "cross cut" various organisations in the course of his or her inspection. Therefore. if a given case involved, for example, the Police Service of Northern Ireland, the forensic department and the pathology lab as well as the police ombudsman, the chief inspector should be able to trace the case right through all those organisations. Currently, however,

111
the chief inspector's cross-cutting inspection would be curtailed and the trail would run out when he or she reached the office of the police ombudsman.
Such a position is wholly unreasonable and untenable. It really is beyond my comprehension, as I imagine it is beyond the comprehension of many noble Lords, that the Government have been so tardy in trying to complete the list of organisations that will fall under the remit of the chief inspector of criminal justice.
At this time of night I shall not pursue other issues such as Consignia or the Financial Services Authority. I should hope that all such organisations will be included on the Government's list, which we hear about, of 19 other organisations. However, on the basis of events already occurring daily in Northern Ireland, of all those organisations, none has a greater impact and causes more concern in relation to unaccountability than the office of the police ombudsman.
10.15 p.m.
Lord Williams of Mostyn: My Lords, I am grateful for the approach of the noble Lords, Lord Glentoran and Lord Maginnis. Perhaps I can remind the House that this group of amendments comprises Amendments Nos. 61, 63, 64, 65, 66 and 67. Amendment No. 61 is distinct and I shall deal with it separately if I may. However, Amendments Nos. 63 to 67 inclusive deal with a wish to include specified organisations.
The noble Lord, Lord Maginnis, said that the Government had been tardy. Nothing could be further from the truth. We are in a process of consultation with about 20 bodies, with a view to adding to the list of specified organisations at Clause 45(1). My colleague, Des Browne, wrote to the organisations concerned on 28th February inviting responses by 19th April. We have had a number of meetings and interim correspondence with various of those organisations but many of them wanted more time to consider the issues. My colleague, Des Browne, agreed that the deadline should be extended to the end of June.
We are still having consultation with many of the possible candidates. Further organisations can, of course, be added by order by virtue of Clause 45(6). Because of the suggestion from the former Delegated Powers and Deregulation Committee—to which, I have said on many occasions, we pay careful attention—we have put down a government amendment to Clause 89 making that order-making power subject to affirmative resolution, which constitutes a protection for the interests of this House.
I am sorry to say that Amendment No. 61 is misconceived but I understand from the spirit of the approach of the noble Lord, Lord Glentoran, that essentially it is a questioning if not a probing amendment. The trouble with Amendment No. 61, were it to be carried, is that the chief inspector could inspect only organisations in possession of criminal
112
investigatory powers. However, that would exclude most of the organisations mentioned in subsection (1) of Clause 45. It would exclude, for example, the Compensation' Agency, health and social services boards and health and social services trusts, the Juvenile Justice Board, the Probation Board for Northern Ireland and so forth. The desired outcome would not be achieved by Amendment No. 61.
I believe that I set out the position as regards Amendments Nos. 63 to 67 inclusive. The Government have not been tardy. Organisations have understandably asked for a little more time and my colleague rightly gave it to them. I hope that that explanation is of assistance.
Lord Glentoran: My Lords, I thank the noble and learned Lord the Lord Privy Seal for those comments. He is right to say that Amendment No. 61 is entirely probing, as I said in my opening remarks. However, I hope that the Government will have something significant, solid and prescriptive in the form of an amendment by Third Reading.
Lord Williams of Mostyn: My Lords, I simply want to help the noble Lord as he is always extremely courteous and helpful to me. I do not believe that the consultation will be concluded by Third Reading. I do not want any misunderstanding to creep in.
Lord Glentoran: My Lords, I thank the noble and learned Lord for that comment. Perhaps we could have some further meetings between now and then outside the Chamber. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
The Deputy Speaker: My Lords, I have to advise your Lordships that Amendment No. 63 is identical to Amendment No. 66. Therefore, I shall not be able to call Amendment No. 66.
[Amendments Nos. 63 to 68 not moved.]
Clause 46 [Further provisions about functions]:
[Amendment No. 69 not moved.]
Clause 48 [Reports]:
[Amendment No. 70 not moved.]
Clause 50 [Duties of Commission]:
Lord Roganmoved Amendment No. 71:
Page 30, line 40, leave out paragraph (c) and insert—
"() In performing its duties, the Commission may consult any equivalent national law commission."
The noble Lord said: My Lords, at this late hour I beg your Lordships' indulgence to speak briefly to Amendment No. 71. Your Lordships will be aware that perceptions count for much in Northern Ireland. A perception which I am afraid will gain credence in Northern Ireland is that something strange is going on; in other words, that murky dealings are going on as regards the requirement for the Law Commission to be obliged to consult the Law Reform Commission of the Republic of Ireland.

113
I remind your Lordships that the Bill states:
"In performing its duties the Commission must consult".
What is the special reason why the Law Reform Commission of the Republic of Ireland should be put in the same privileged position as the Scottish Law Commission and the Law Commission? For what reason is the Republic of Ireland placed ahead of any other Commonwealth country and any other member state of the European Union? I again ask the noble and learned Lord the Minister to explain fully why the Government included the Law Reform Commission of the Republic of Ireland as a compulsory consultee. My fear is that there may be a resulting perception—or perhaps misperception—in Northern Ireland. That would be prevented if noble Lords agreed to the amendment. I beg to move.
Lord Maginnis of Drumglass: My Lords, most noble Lords would be surprised if I did not endorse the amendment that was moved by my noble friend Lord Rogan.
Earlier this evening, I asked the noble and learned Lord the Lord Privy Seal a specific question about external influences in Northern Ireland in respect of judicial appointments and other matters pertaining to the judiciary. I have no doubt that the noble and learned Lord understood the nature of my question. With respect, he bypassed it by alluding only to the specific amendment that I had moved.
It is important for us to discover here and now why there has to be a particular and specific reference to the Irish Republic in this context. We have to discover what part the Irish Republic currently plays—directly or indirectly—through government, government agencies, the law commission of the Irish Republic and any other way in the day-to-day work and structure of the judicial process in Northern Ireland. We need to know what the future intentions are. Will that arrangement be increased? If it currently exists—many of us suppose that it does—what are the intentions with regard to regularising it? It is totally and utterly unacceptable that such a situation should, in some opaque fashion, be allowed to occur.
There is a lack of confidence in Northern Ireland at the moment. There is a feeling that the efforts that we made to reach an equitable and fair agreement in the Belfast agreement in April 1998 are being constantly, deliberately and callously eroded to the extent that the whole process is in great danger. I therefore hope that, despite the late hour, the noble and learned Lord will give us a full and detailed answer about the dilemma that is facing us.
Lord Mayhew of Twysden: My Lords, I expect to hear from the noble and learned Lord the Leader of the House that there is a provision in the Good Friday agreement or in some predecessor agreement that explains and justifies the inclusion of the Law Reform Commission of the Republic of Ireland in this little group in Clause 50(4). If there is such a provision, I am sure the noble and learned Lord will identify it. if there is not, I express my support for the amendment. That is
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not out of lack of sympathy for the need in appropriate cases to consult with and to act congenially and consistently with the legal processes in the south, in the Republic. I say "where appropriate" because there will be circumstances where it is not.
Having had some involvement over quite a. long time in the negotiations which reach their culmination in what has been described rightly as the great achievement of this Government in 1998, the Belfast agreement, I have long recognised the need, where appropriate, for consistency with what is happening in the Republic; and for bringing into consultation organisations in the Republic.
However, I have also a vivid recollection of the suspicions and anxieties of which the noble Lord spoke in moving the amendment. If there is no specific provision in any agreement which is responsible for and explains the inclusion of the Republic of Ireland's Law Reform Commission in this group, I anticipate that those suspicions will be fuelled. We can all regret the fact that they exist but, equally, I am sure we agree that there is a duty on all of us not unnecessarily to reinforce them.
10.30 p.m.
Lord Williams of Mostyn: My Lords, the answer to the noble and learned Lord, Lord Mayhew of Twysden, is plain. The document where one finds this recommendation is the review recommendation 245. It is quite plain and unambiguous that that is what should be done and we have accepted that. Whether or not one agrees with every recommendation, the noble and learned Lord's experience of the review is that it was certainly a painstaking and wide consultative exercise carried out with a composition which was widely representative of different views in. Northern Ireland. I believe that its conclusion is right. It strikes me as being particularly appropriate because there is a close historic and legal common tradition in different ways—not altogether a tradition of uniformity but a legal, cultural and historical tradition—which has in the past united the Republic, Northern Ireland, Scotland and England and Wales. Perfectly fairly, the noble Lord, Lord Rogan, asked me why it should not include the Commonwealth or the European Union. My answer is plain. What similarity of legal tradition is there between our legal and judicial system and that of France, Germany, Spain, Italy or Belgium? There is virtually none. They are not accustomed to jury trials. They are accustomed to inquisitorial not accusatorial trials. Their entire tradition, I think I can say about France and Belgium, has been post-Napoleonic. That has not, happily, been our experience.
I suggest to noble Lords that it is necessary to understand that this is not exclusive. There is nothing in the Bill to prevent wider consultation. Indeed, certain state jurisdictions in the United States might be helpful; otherwise the descendants of the Napoleonic code and tradition in the United States would not be suitable. So it is perfectly simple. There is no conspiracy. There is no hidden agenda. The louder I say it, and the clearer and more unambiguously I say it, the better.

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I believe that the noble and learned Lord also asked whether there was interference in any other way in the day-to-day judicial process in Northern Ireland. There is not. If there were any attempt to interfere improperly in any way from any quarter—whether Republic of Ireland, or other—with the judicial process in the Province, I know that the noble and learned Lord would be the first to join me in saying that it would encounter a very prompt bloody nose from the judges. There is no conspiracy. It is perfectly sensible to look at the traditions that we have shared. I have in mind legal traditions that are not entirely uniform; they are sometimes diverse.
The suggestion here is based on recommendation 245, which brought about the requirement in the legislation that these relevant—I stress the word "relevant"—law commissions in countries with a similar common judicial and legal tradition should be consulted. One can find conspiracies everywhere, even a conspiracy of one. But, I am sorry to say, there is no conspiracy—even at this hour of the night.
Lord Maginnis of Drumglass: My Lords, before the Minister sits down, perhaps I may say that I am reassured to a degree by his response. However, under the present arrangement is a High Court appointment bounced off the Irish authorities before it is implemented? Is that what is happening? Is that what this provision in the Bill is intended to perpetuate?
Lord Williams of Mostyn: My Lords, perhaps I may explain the position again. What we are looking at here is the Law Commission, which has nothing at all to do with the appointment of judges. That is a matter for the Judicial Appointments Commission. However, they share one characteristic—namely, a common noun—but they share no other. I do not believe that I can explain the position any more plainly.
The commission that we are discussing is the Law Commission. It is a scholarly body that seeks to reform the law. I appreciate that it must be regarded as an uphill struggle, because many of its reports in the United Kingdom have not been dealt with for the past 20 years. I repeat: this has nothing to do with the appointment of judges. Law commissions consider the substance, the structure, and the process of law. They do so in a detached, dispassionate, academic and scholarly way. They produce their reports, after which a draft Bill is produced. Then, 20 years later, someone does something about it—on a lucky day with a following wind. At this point, your Lordships will understand that I am not, in any circumstance, talking with a word called "taxi" on my mind.
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When we introduce and act upon the forthcoming excellent "red report" from the Leader's group on working practices, which I commend to the House, and after it has received unanimous acceptance on 17th July, there will be opportunity in September for Grand Committees to sit and scrutinise Law Commission Bills. Indeed, only those—I speak directly to the noble Baroness, Lady O'Cathain—who have a pulsating interest in law reform Bills would be expected, let alone required, to attend.
This provision has nothing to do with the appointment of judges. However—a famous word in your Lordships' House—if it did have to do with the appointment of High Court judges, to use the noble Lord's graceful phrase, High Court appointments are not "bounced off" the Irish Government. They are not the business of the Irish Government, any more than it is our business to try to interfere with who the Chief Justice of the Republic of Ireland is, excellent though he may be in every way.
Lord Rogan: My Lords, I believe that the Minister said that this Bill would in no way prevent the Law Commission from consulting any other common law jurisdiction. I have no difficulty with that. However, if that is the case, why specifically put into the Bill the Law Reform Commission of the Republic of Ireland? Why not leave it in the same way as any other common law jurisdiction to which reference could be made?
Lord Williams of Mostyn: My Lords, under the duties of the commission, as specified in the Bill, it is directed—rightly, one would have thought—to consult with relevant proximate law commissions. That is why the Law Reform Commission of the Republic of Ireland is not singled out; it is included with the Law Commission of England and Wales—an excellent body—and the Scottish Law Commission. I repeat that it is not directed to look at Italy, Spain, France, Germany, Belgium or even Luxembourg because, even with the best telescope in the world, it would be difficult to find any benefit in mandatory consultations with them. So we are looking for proximate and relevant jurisdictions; in other words, the voice of reason is speaking however quietly.
Lord Rogan: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at eighteen minutes before eleven o'clock.