HL Deb 01 July 2002 vol 637 cc41-73

5.6 p.m.

Consideration of amendments on Report resumed.

Clause 3 [Judicial Appointments Commission]:

Lord Glentoran

moved 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My Lords, I am sorry, I thought that Amendments Nos. 3 and 4 had to be withdrawn before the noble Lord could move Amendment No. 5.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 "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.

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 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 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 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 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 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 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 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 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 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 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
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]
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.
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]
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.
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 Mostyn

moved 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.

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 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 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.

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 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.

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 Rogan

moved 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 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 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 Drumglass

moved 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 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 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 Rogan

moved 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.

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 Asthal

moved 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: 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 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.

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 Glentoran

moved 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 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 Drumglass

moved 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 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 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.