Lords Sitting of 15 January 2004

Preamble
The House met at eleven of the clock: The CHAIR MAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of St Albans.

Universities: Medical Services
Lord Butler of Brockwell Lord Butler of Brockwell asked Her Majesty's Government:
How they propose to ensure that changes in National Health Service funding do not adversely affect provision of medical services in universities.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the new contract for general medical services has been negotiated between the NHS Confederation and the General Practitioners Committee of the BMA. It will provide practices on most campuses, with the same method of funding and earning opportunities that will be available to all general medical services practices. A minimum practice income guarantee for basic general medical services will be available to prevent financial instability.
Lord Butler of Brockwell: My Lords, I am grateful to the Minister for that Answer. Is he aware that the proposed capitation rates for young people do not make adequate allowance for the special needs of university students, many of whom are living away from home for the first time and who, as a matter of fact, make greater demands on their GPs than is the norm for their age group? In particular, the capitation rates make inadequate provision for the Government's other admirable initiatives on health, mental health, sex education and the prevention of drug abuse. Will the Minister please give an undertaking that the capitation rates are adjusted to make adequate allowance for the needs of university students?
Lord Warner: My Lords, the new formula for general practice remuneration has been designed to address historic inequalities in funding primary care. The contract, and the basis of the contract, was voted on by GPs themselves. Some 79 per cent of the GPs who voted accepted the new contract basis, and that was based on a 70 per cent turnout. So we are not at this point in the business of introducing new changes into the format of the contract. It will, however, be kept under review.
Under the new arrangements, primary care trusts have been given a duty to ensure that they can enter into specialist contracts—in areas of high student population, for example. If there was a particular need for sexual health, mental health or substance abuse services, the PCT would make specialist contract arrangements for those services.
Baroness Gardner of Parkes: My Lords, I declare an interest as a patient of the Imperial College health centre. I asked a Question on this subject on 8 May last year and the Answer I was given concerned the minimum practice income guarantee. I have now looked into the matter further, and it turns out that this will be based on statistics data gathered for three quarters of a year. This will include the summer months, when the academic practices are quieter and GPs and their staff tend to go on leave to fit in with the efficiency of the practice. More seriously, there will be an adverse effect on patient number records: students who leave will come off the list in July and replacement students will not return to augment the list until November. This will create a very artificial situation. In addition, capitation will be greatly reduced by all those months.
Noble Lords: Question!
Baroness Gardner of Parkes: My Lords, the Minister talks about opportunities for earning money from services such as sexual health. Westminster primary care trust has already said that it cannot possibly do that as it will not have enough funds, so that option is not available. Will the Minister tell me what specific measures he will take to deal with this unique situation and to see that the strange situation of capitation is taken into consideration in the present negotiations?
Lord Warner: My Lords, I think I have made it clear that we are not revisiting the basis of this contract, which has been negotiated over 18 months between the NHS Confederation and the BMA's General Practitioners Committee. I can see that the noble Baroness is concerned about this, but her Question was quite long, so I hope I may be allowed a couple of sentences to reply. The new contract is meant to rebalance remuneration so that those GPs with the highest workloads and the highest prevalence of: illness in their practices are suitably remunerated. As I said, the system will be kept under review. It is down to PCTs to contract for specialist services. It is worth reminding the noble Baroness that PCTs now have at their disposal 75 per cent of NHS expenditure for commissioning particular services.
Baroness Warwick of Undercliffe: My Lords, may I, in declaring an interest as chief executive of Universities UK, reinforce the concern expressed by the noble Lord, Lord Butler of Brockwell? I appreciate that the situation will be kept under review, but it is worth remembering that the turnover rates among students on campus in GP practices is 25 per cent to 30 per cent, whereas the average for most areas is 10 to 15 per cent. I hope that this can be taken into account, because there is real concern that this will have an impact on the staffing of medical centres.
Lord Warner: My Lords, the system will be kept under review by an independent UK-based group of experts. But there is no getting away from the fact that we have revamped this contract so that doctors who have the

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heaviest workloads with the highest prevalence of illness are reimbursed accordingly. With the full co-operation of the profession, we are remedying historical anomalies.
Baroness Sharp of Guildford: My Lords, will the Minister give us assurances on the mental health issues? Many PCTs already find it quite difficult to meet the demands in their areas for support for mental health problems. Students under stress often raise new problems. Can we be assured that they will be given the long-term support that they need?
Lord Warner: My Lords, it is down to the PCTs at the local level to assess the medical needs of their communities and enter into the contracts that meet those needs. That will include mental health. As I said, there is now a duty on PCTs to do that work and ensure that doctors and services are appropriately geared up for those particular service needs.
Lord Butler of Brockwell: My Lords, is the Minister aware that it is not an adequate answer to say that the great majority of GPs have supported the contract, because this is a specialist need in special circumstances? I should like to underline the point made by the noble Baroness, Lady Gardner of Parkes, that it is also a cop-out to say that the primary care trusts will provide for this. They simply do not have the money to do so.
Lord Warner: My Lords, I gently say to the noble Lord that the Government are increasing NHS expenditure by 7 per cent in real terms over a five-year period. That is an unprecedented historical high. It is simply not true that there are not the resources in the NHS to buy the services that are needed. As I have said on several occasions, it is down to the people at the local level to meet the service needs of their particular area with the resources available. The contract was negotiated with the profession over 18 months. It takes account of the needs of doctors who work in university areas, and the profession has overwhelmingly supported this contract.
Lord McColl of Dulwich: My Lords, is the Minister aware that there is a lot of concern about this question? He said that the contract is continuously under review—as is everything else. Will he give us a time span—and review it again in six months?
Lord Warner: My Lords, we have already agreed with the profession to carry out a review in October after six months' experience of the new contract.

Olympic Games 2012: London Bid
11.15 a.m.
Lord Moynihan Lord Moynihan asked Her Majesty's Government:
What further developments they propose in support of London's bid to host the Olympic and Paralympic Games in 2012.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the first stage of the bid—the applicant questionnaire—was delivered to the International Olympic Committee to meet today's deadline of 15 January. The Government will continue to work closely with all others involved to develop the outline proposals in the questionnaire.
Lord Moynihan: My Lords, a year ago there was unanimous support in a debate in this Chamber urging the Government to support a London Olympic bid in 2012. Will the Minister convey congratulations from these Benches and, I am sure, from across the House, to the bid committee on their success in meeting this week's IOC deadline with professionalism, commitment and dedication? Will the Government match that commitment today by announcing that the direction of the tax take on the proposed Olympic lottery game will go to the London Olympics and will not, as proposed, be pocketed by the Chancellor for other purposes? Will the Government also announce the launch of an Olympic sports lottery game this summer at the time of the Athens games to maximise revenue both for our able-bodied and disabled sporting organisations, which is permitted by the International Olympic Committee?
Lord McIntosh of Haringey: My Lords, I am most grateful to the noble Lord, Lord Moynihan, for his opening comments. I will indeed convey those congratulations. Indeed, I hope that he will have an opportunity to do that himself when he is present with others at the launch of the application.
On his further points, he will know that it was decided that there should be a Treasury take of 12 per cent on the National Lottery under his government, in 1994. It was intended to be revenue neutral—to compensate the Exchequer for the loss of revenue from other taxable activities from which lottery money had been diverted.
On the point about the start of the specific Olympic lottery, he will know that the International Olympic Committee does not permit a lottery of this kind for the benefit of the bid to be started before a candidate has been chosen.
Lord Addington: My Lords, will the Minister assure us on behalf of the Government that the whole of Whitehall—indeed, the whole of the London government structure—is fully co-ordinated and involved in preparing for this bid? Furthermore, will he assure us that he will study the process as it proceeds so that we can build a model for future cross-government and local government co-operation that could be used for any future bids for games or cultural events? That would ensure that we would have another substantial gain from the process of bidding for the Olympics.
Lord McIntosh of Haringey: My Lords, I can certainly give the assurance that there has been a cross-Whitehall group to provide advice and assistance to London 2012.

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However, I can go further—there have been a series of meetings between senior representatives of the Government, the Mayor of London, the British Olympic Association and London 2012. This has been an example of good co-operation. Developing a model for the future is certainly an interesting idea. However, it is our intention to win this application and not to have to enter another Olympic application for several years after 2012.
Lord Moynihan: My Lords, I return to the Answer that the Minister kindly gave me, and ask him to reconsider both answers. First, with a hypothecated game, which requires separate primary legislation, as the legislation is going through another place and will come to this House, would he not agree that it is perfectly possible to ensure that the tax take goes directly to the games? Indeed, our Benches would support that if an amendment to the Bill were tabled. We believe that it is essential, and that the public who bought tickets would wish that to be the case.
Secondly, we will be calling for a game to be launched this summer, at the time of the Athens games, under the legislation that the Government are bringing to Parliament. Does the Minister accept that, as long as the game is not exclusively for the purposes of the London 2012 hid but is for Olympic sports and disabled sporting organisations, it can be launched at the time of the Athens Olympics this summer with the full backing of the IOC?
Lord McIntosh of Haringey: My Lords, I am tempted to give the same answers to the same questions. On the issue of the Treasury take, it ought to be said that it would be a difficult precedent to sustain if we were to say that one section of the good causes that benefit from the lottery should be affected by the 12 per cent Treasury take and other parts should not. There would be a good deal of indignation on that score.
The same answer applies to the noble Lord's second question. I believe that he is saying that we might start to collect money for Olympic-related purposes, and I agree with him that the International Olympic Committee would probably accept that interpretation. However, what would happen if we did not win, for example? What would be the reaction of those who expect to benefit from the other good causes, which have a good deal of support in this House and in the country?

Medical Schools: Professorial Vacancies
11.21 a.m.
Lord Roberts of Conwy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as president of the University of Wales College of Medicine.
The Question was as follows:
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To ask Her Majesty's Government how many professorial appointments are currently vacant in United Kingdom medical schools.
Lord Warner: My Lords, the Government do not collect the information that the noble Lord has requested. However, we are aware that the Council of Heads of Medical Schools is undertaking a UK-wide survey of the number of posts and vacancies, which will be published soon.
Lord Roberts of Conwy: My Lords, I am sure that the Minister will know the outcome of that survey, which shows 84 vacancies among professorships in medical schools in the UK. He will also be aware of the recent report in the Times that medical schools are short of some 80 professors. That is the equivalent of one in 10 of the professorships in the 24 British medical schools. The percentage of vacancies among senior lecturers and so on is even higher. What is the explanation for that? How do the Government account for those vacancies, and what will be the effect on the training of medical students who have increased by substantial numbers since 1998?
Lord Warner: My Lords, I do not have officially the information that the noble Lord has cited. The council carrying out the survey is an independent body, and it is for the council to put the information in the public arena. I understand that the figure that he has cited has some familiarity to me, but it is not the formal figure that the council has put in the public arena.
It is worth reminding the noble Lord that, as he said, the medical school student intake has risen from just over 5,000 in 1997–98 to more than 6, 700 in 2002–03. The money for that has come from the Higher Education Funding Council. When institutions have bid for that money to increase their student intake, they have all given assurances that they can recruit the staff necessary to carry out their obligations.
Lord Turnberg: My Lords, is not the problem a reflection of the fact that clinical academic medicine is no longer such an attractive proposition, and that for many it is becoming very unattractive? Is it not also the case that the report from the Academy of Medical Sciences, of which I happen to be vice-president, will go some way to remedying some of those problems, if the proposals are taken up?
Lord Warner: My Lords, my noble friend is quite right. There have been some long-standing problems with regard to clinical medicine but, under this Government, the National Clinician Scientist Award Scheme was introduced in response to the Saville report to tackle disincentives in this area. Sixty-five awards have been made on a five-year personal basis to stimulate recruitment in this area.
Baroness Sharp of Guildford: My Lords, how will the new fee arrangements proposed by the Government affect medical students? Given that clinical medicine is no longer such an attractive profession and that the

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report in the Times indicated that the problem arises because clinical academics are moving into work for the NHS, surely the problem will be exacerbated if students have accumulated a very large debt over the many years that they have to train.
Lord Warner: My Lords, the Government's position on the future of higher education is set out in the White Paper and will be pursued through the Higher Education Bill. Department of Health Ministers have made it clear that they will, if necessary, take measures to ensure that any increase in the level of tuition fees will not have an adverse impact on the supply, retention, diversity or quality of students undertaking medical training.
Lord McColl of Dulwich: My Lords, the Government gave an assurance that they would ensure parity between clinical academics and NHS consultant posts. How far have they got with that?
Lord Warner: My Lords, I understand that there is parity. It is worth bearing in mind that the BMA announced, on 12 January, that an overall majority of clinical academics voted for the new contract for consultants.
Lord Mackie of Benshie: My Lords, will the Minister tell us how much a professor of medicine gets paid? Could he tell us how much the Government supply to individuals to bring them up and to make them take the appointment?
Lord Warner: My Lords, those are matters for individual universities. I shall make some inquiries about the average figure and write to the noble Lord.

Guantanamo Bay: British Detainees
11.27 a.m.
Lord Lester of Herne Hill: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare a professional interest as co-counsel acting pro bono for 175 Members of both our Houses in an amicus role before the American Supreme Court.
The Question was as follows:
To ask Her Majesty's Government what position they intend to adopt in the pending proceedings before the Supreme Court of the United States by British citizens detained in Guantanamo Bay to protect their basic civil rights.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the pending proceedings in the United States Supreme Court concern the jurisdiction of the United States civil courts in relation to Guantanamo detainees, not their rights to a fair trial. The question of their civil rights that arises relates to their right to be heard before an American civil court. The Government do not wish to
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prejudice discussions between ourselves and the United States in relation to the British detainees in Guantanamo Bay. We are keeping the matter under review.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for her reply. I understand exactly what she has said, but does she agree that it is in the public interest of the inhabitants of both our nations if the due process of law is applied by the United States courts to fill what our English Court of Appeal has described as the "legal black hole" that now exists in relation to the detainees in Guantanamo? Does she also agree that the concept of the due process of law is deep-rooted in our Anglo-American legal heritage, and that it is very important in terms of the wider interests of diplomacy that we demonstrate to the wider world that we apply that process on both sides of the Atlantic, even to suspected terrorists or people designated as enemy combatants?
Baroness Symons of Vernham Dean: My Lords, the Government always espouse the importance of the rule of law, no matter which country we are talking about. As we have previously discussed in your Lordships' House, one major difficulty about the Guantanamo Bay detainees has been the question of their status. We discussed this on 15 October, and the noble Lord, Lord Howell of Guildford, said that it was a difficult situation that needed to be resolved. The question now before the United States Supreme Court is a matter of United States constitutional law. The Supreme Court of the United States must decide by due process what is right on this question of jurisdiction.
Lord Howell of Guildford: My Lords, if, as is rumoured, some of these detainees who are British nationals are returned to this country, the Minister will agree, like all of us, that they could not conceivably be held without charges. Has the Minister heard the suggestion in some legal circles that some of these detainees, by taking up arms against this country as British nationals, could be charged with the ancient crime of treason? Treason can be committed on foreign soil, as all precedents in the law courts here prove. Either way, will she assure us that the appropriate authorities are finding out now, in anticipation of this move, what the alleged crimes of these British nationals are, and are preparing the ground before these individuals arrive back here and, as a result of no charges, are immediately released? That would raise serious questions for terrorism and public security.
Baroness Symons of Vernham Dean: My Lords, I have heard a number of suggestions about what might be done. Some of those suggestions are fanciful; others are serious. The noble Lord is right to draw our attention to the issue of security. There are important issues concerning the fair trial, if it was to take place, of any of the Guantanamo Bay detainees. There are also important issues about security. In discussing this question, it is wrong for us to focus entirely on one of

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those sets of issues and to ignore the important issues that the noble Lord has raised. I am grateful to him for doing that.
I expect that he will be anticipating the answer that the question of any charges is clearly not an issue for Her Majesty's Government. I am sure that the appropriate authorities will look at a whole range of issues, but that is not a question that is for me or for any of my colleagues as Ministers to decide. In this country we have the appropriate separation of powers.
Lord Hylton: My Lords, negotiations have been going on for months between Her Majesty's Ministers and the American authorities. Will the Minister say whether the Government have yet succeeded in obtaining evidence against the British citizens and former residents, which might enable them to be charged with crimes? Have the Government obtained the intelligence from the American authorities that would enable proper precautions to be taken in this country when these people are returned to this country, which 1 hope will be soon?
Baroness Symons of Vernham Dean: My Lords, the individuals involved have been detained for a long time—about two years. The two-year point passed just a few days ago. However, we have not been in negotiations for those two years; we have been in negotiations since the designations were made over Mr Abassi and Mr Begg earlier this year. I want to stress to the noble Lord that at no point have those negotiations been about the evidence. They have been about trying to secure a fair trial. The question of evidence is not a matter that would be appropriate for the Government to be negotiating on. As the noble Lord would expect, I am not able to discuss matters of intelligence from the Dispatch Box. I remind him that my right honourable friend the Prime Minister, when asked in an interview with Sir David Frost on 11 January 2003 about the length of time that it has taken, said that he hoped that one way or another the issue would be resolved in the next few weeks.
Lord Goodhart: My Lords, I must declare that I am one of the 175 Members of both Houses on whose behalf my noble friend Lord Lester of Herne Hill is acting. Is the Minister aware that the USA has applied its environmental protection laws to the base at Guantanamo Bay, with the result that the rights of endangered species of lizard are protected by American law, while the rights of prisoners, so far, are not? More importantly perhaps, what is the Government's view on the extent to which the circumstances at Guantanamo Bay comply with American obligations under international law, particularly under the International Covenant on Civil and Political Rights, to which the USA is a party?
Baroness Symons of Vernham Dean: My Lords, the noble Lord goes to the heart of the issue. I understand why he raised the fact that the United States has applied environmental law, and I take his point about the juxtaposition of lizards on the one hand and human beings on the other. This goes to the heart of
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the issue that is going before the Supreme Court. The question that the noble Lord asked about the application of American law elsewhere, in relation to Guantanamo Bay, is the question of jurisdiction and where the legal writ runs. I am not an extremely able and clever lawyer like the noble Lord. But even I can see that the point in the noble Lord's question is highly prejudicial to the overall point that is now going before the Supreme Court and which the noble Lord and many able parliamentarians will be a party to arguing before the Supreme Court.
Lord Monson: My Lords, will the Minister confirm a claim made in yesterday's Financial Times by a director of Amnesty International that many of the Guantanamo Bay detainees were not captured in Afghanistan, but were seized in countries as far apart as Bosnia-Herzegovina, the Gambia and Pakistan, and therefore are not, strictly speaking, enemy combatants. If that is so, do any of the British detainees fall into that category?
Baroness Symons of Vernham Dean: My Lords, that goes back to the whole question of what we mean by an "unlawful combatant". An "unlawful combatant" need not necessarily be someone captured on the field of combat, it may be someone in a supporting role. I do not wish to get into this difficult question, which has not been resolved, about the definition of what we mean by "unlawful combatant". The noble Lord is right; a number of individuals have been detained in a variety of circumstances and some have claimed that the ways in which they were detained were unlawful, and some have claimed that the ways in which they were detained meant that they were mistreated. I am aware of a range of issues that are claimed by those who are detained in Guantanamo Bay.

Patents Bill [H.L.]
Lord Davies of Oldham: My Lords, on behalf of my noble friend Lord Sainsbury of Turville, I beg to introduce a Bill to amend the law relating to patents. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time. —(Lord Davies of Oldham.)
On Question, Bill read a first time, and ordered to be printed.

Justice (Northern Ireland) Bill [H.L.]
11.38 a.m.
The Lord President of the Council (Baroness Amos): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee. —(Baroness Amos.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Transfer to Secretary of State of functions relating to Judicial Appointments Commission]:
Lord Kingsland Lord Kingsland moved Amendment No.1:
Page 1, line 5, leave out "Secretary of State" and insert "Lord Chancellor"
The noble Lord said: I understand that the expression "Secretary of State" in Clause 1 is intended to mean Secretary of State for Constitutional Affairs. I should be most grateful if the Minister would confirm that when he replies. We have no objection to the Secretary of State for Constitutional Affairs having these new responsibilities set out in Clause 1, as long as the Secretary of State for Constitutional Affairs is also the Lord Chancellor. The Lord Chancellor is constitutionally the member of the Cabinet responsible for the selection of the judiciary. He is also the head of the judiciary.
However, we are aware from various statements in your Lordships' House and from observations made in the press that there is an intention to remove the Lord Chancellor from his current constitutional responsibilities and replace him by the Secretary of State for Constitutional Affairs.
That is only an intention; we do not know whether it will come about. Even if it does, we do not know what will be the scope of the constitutional responsibilities of the new Secretary of State for Constitutional Affairs with respect to the selection of judges. In those circumstances, we believe that our amendment to replace "Secretary of State for Constitutional Affairs" by "Lord Chancellor" in Clause 1 is appropriate.
I have one other question to ask the Minister on this clause. The Explanatory Notes to the Bill state that the intention for the change in Clause 1 is to establish a Judicial Appointments Commission. Yet if your Lordships glance at the scope of the amendments to the 2002 Act in Schedule 1 to the Bill, you will see that they extend not only to Section 3(2)(b) of the 2002 Act, but also to Sections 5(3), 5(4), 5(6) and 5(7). That suggests that the Bill's scope is intended to apply not only to the appointment of the Judicial Appointments Commission but to the operation of the process of selecting judges in Northern Ireland once it is set up. I beg to move.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): As the noble Lord, Lord Kingsland, signalled, I am accepting these amendments. As noble Lords know, we have indicated our intention to legislate in relation to the office of the Lord Chancellor and a Bill will be introduced before long. Meanwhile, we can see both the tact and the purity of continuing to refer to the Lord Chancellor while he is still in that position. It also has the slight advantage, from my perspective, that I do not need to argue different positions in Parliament on almost sequential days. So I am happy to accept the amendment.
As to the interesting and difficult question raised by the noble Lord, Lord Kingsland, the short answer is that, quite clearly, the Bill itself takes precedence over
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the Explanatory Notes. However, I should like to reflect in a little more detail on whether I have done sufficient justice to the depth of the question in that respect.
Lord Kingsland: I am most grateful to the Minister for accepting the amendment and look forward to the consequences on Report of his further reflections.
On Question, amendment agreed to.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
11.45 a.m.
Lord Maginnis of Drumglass: I very much welcome the Government's decision to accept the amendments tabled in the name of the noble Lords, Lord Glentoran and Lord Kingsland. I was unable to speak on Second Reading due to illness, but I should like to make a few short points at this stage.
I wonder whether it is possible to think of another example where a democratic government—with all the facilities that implies, and with such extensive and expert advice as they have at their disposal—have had the capacity to make such complete and utter blunders as this Government have done with two important pieces of social legislation. In my short experience in your Lordships' House I have seen a new Northern Ireland Police Bill brought back for revision within a three-year period, and I now find a new justice Bill returning within less than two years. That is bad enough, but in both cases such incompetence has followed a comprehensive review in the areas under consideration.
Worse is to come. It appears that such is the perversity of the Government that both revisions are bound only to compound the difficulties and mistakes. We already see the inadequacies of our policing legislation where crime in Northern Ireland is having an increasingly negative effect on our society. As I said, I realise that this is not a Second Reading debate. However, I think that I should make these general points now rather than doing so repeatedly throughout our consideration in Committee. I apologise and ask for your Lordships' leave.
In 2002, I cautioned against the idea of vesting in the First Minister and Deputy First Minister in Northern Ireland any authority which until then had been within the bailiwick of the Lord Chancellor. I explained why it should not happen, I emphasised why it would fail, and I was right—we have failure. I am a layman in this area, but the noble and learned Lord, Lord Hutton is not. Today he is entrusted with a matter of national and international import. Yet, on Second Reading of the 2002 Act, he cautioned:
"Under the changes set out in the Bill, the First Minister and Deputy First Minister, at the present time a unionist and a nationalist, who are two very active politicians, will have a very important part to play in appointments. They will also appoint the lay members of the Judicial Appointments Commission. There is

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bound to be some concern that political considerations will come into play in making appointments". —[Official Report, 3/5/02; col.970.]
Bearing in mind the observation of the noble and learned Lord, Lord Hutton, I ask the Minister whether political appointees will not in turn be bound to make political appointments themselves. Any clause removing reference to the First Minister and Deputy First Minister should do so on the basis that, as the review advised, no commission should be set up prior to the devolution of criminal justice. The recent election has shown how more people are becoming disappointed with the way in which the Belfast agreement is being distorted by government. Let us not add further to that concern.
If devolution of criminal justice could not happen, for reasons beyond their control, when David Trimble and Seamus Mallon were in office, is it any more likely to happen when Ian Paisley and Gerry Adams are, in theory if not in fact, vested with the responsibility?
The noble and learned Lord, Lord Hutton, pointed out almost two years ago that the review had found 77 per cent of the population expressing confidence in the fairness of judges and magistrates. Was that not a thoroughly satisfactory position? Why tinker further with what works? When this question was posed previously in respect of Messrs Trimble and Mallon we were informed that the Government were not planning for failure. Well, why are they now planning for certain failure?
I had intended to support the amendments tabled by the noble Lord, Lord Glentoran. Now, in accepting the concession that has been made, I reiterate an earlier point. It has not escaped me that although "Secretary of State" could in fact refer to the Secretary of State for Constitutional Affairs, many of us believed that it could have been intended to refer to the Secretary of State for Northern Ireland. That point is different from the one made by the noble Lord, Lord Kingsland. "Secretary of State" is interchangeable, so let us cut out any duplicity and go unequivocally for "Lord Chancellor". I was about to say that I support the amendment. However, since a concession has been made, I shall not press the issue.
Clause 1, as amended, agreed to.
Schedule 1 [Transfer to Secretary of State of functions relating to Northern Ireland Judicial Appointments Commission]:
Lord Kingsland Lord Kingsland moved Amendments Nos.2 to 22:
Page 11, line 6, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 8, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 11, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 13, leave out first ""Secretary of State"" and insert ""Lord Chancellor""
Page 11 line 13, leave out second "Secretary of State"" and insert "Lord Chancellor""
Page 11, line 17, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 21, leave out first ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 21, leave out second "Secretary of State"" and insert "Lord Chancellor""
Page 11, line 24, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 31, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 33, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 35, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 11, line 37, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 2, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 4, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 14, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 16, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 20, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 22, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 26, leave out ""Secretary of State"" and insert ""Lord Chancellor""
Page 12, line 29, leave out ""Secretary of State"" and insert ""Lord Chancellor""
On Question, amendments agreed to.
Schedule 1, as amended, agreed to.
Clause 2 [Membership of the Commission]:
Lord Glentoran Lord Glentoran moved Amendment No.23:
Page 1, line 8, at end insert—
"( ) In section 3 of the 2002 Act (makeup of the Commission)—

(a)in subsection (5)(a), for "five" substitute "six", and

(b)in subsection (5)(c), for "five" substitute "four". "

The noble Lord said: The amendment returns to one of the old arguments that we debated in the 2002 Bill, now the Justice (Northern Ireland) Act 2002. Where the Government and ourselves are completely at odds over the Bill and some of the provisions it attempts to make is that we wish to keep the judicial processes in Northern Ireland depoliticised. It appears to me that Her Majesty's Government are determined to politicise them. That makes no sense.
As I mentioned at Second Reading, the Bill as drafted is totally irrelevant. One of the objectives that all parties should have is to maintain the peace process. As has been said on a number of occasions previously, by the Prime Minister and others, and my honourable friend David Lidington and myself, we have to restore the confidence of the Unionist electorate. The Bill does nothing to achieve that. That is well understood. It was well argued by me at Second Reading. I snake no apology for repeating the argument today because it is vital to our discussions in Committee and throughout the Bill.
As regards the amendments, although there is a case for a significant lay element in appointments of the judiciary to help transparency—we accept that—it is

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vital that judiciary should be seen to be in the majority. The risk of politicisation is not merely overt: it can be insidious. Only the judges are in a position to decide who should be chosen on merit. The balance at present is tipped strongly the wrong way and should be corrected. The fact that the Lord Chief Justice and five judges could be outvoted on this commission can make no sense if one has the objective of maintaining that the judicial system be depoliticised and clear of political influences. I beg to move.
Lord Maginnis of Drumglass: I support the amendment. With the Committee's leave, I wish to speak to my Amendment No.25. The two amendments are interrelated and could well have been grouped. I hope to save the Committee's time.
As initially with Clause 1, I regret that I am unable to support Clause 2. It is poorly thought out in terms of its practicality and its consequences. There are many areas in Northern Ireland where decisions which are reflective of the community are both desirable and essential. But there are also specialist areas where, unfortunately, it is not practicable. I shall return to that point in a moment.
An essential point I must make is that the commission will be tasked, quite nonsensically, with the appointment of every judicial office save that of four judges. The only exceptions are the Lord Chief Justice and the three Lords Justices of Appeal. Unbelievably, the 17 High Court judges are not treated as senior judicial figures within the terms of this legislation but are simply lumped together with 30 or so other categories which are listed in Schedule 1. What element of society that is permitted to be part of the lay element—and which precludes those who have ever held judicial office or have been barristers or solicitors—is able to make an informed judgment as to who may be best suited to be a High Court judge?
By virtue of my 18 years in another place and over two years in your Lordships' House I might be considered to be reasonably informed about social and community matters. However, it would be presumptuous to suggest that I would have any tangible assets that would qualify me to appoint High Court judges. I understand why Amendment No.23 seeks to go some way towards ensuring that professionals, as distinct from amateurs, form a significantly larger part of the commission.
My amendment seeks to deal in part with that requirement at new subsection (8)(b) of the 2002 Act that lay membership of the commission will be reflective of the community. I shall deal with that in some detail when we debate Clause 3.
At this stage I want to deal with the matter of competency—something that is not ensured within the Bill. When the Minister spoke at Second Reading she said:
"Merit has been and will continue to be the overriding principle for judicial appointments". —[0fficial Report, 16/12/03; col.1092.]
In the light of new subsection (8)(b) I cannot be wrong in assuming that this is not to be the primary criterion for those who will make the judicial appointments. Surely that is inconsistent.
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I do not say that my amendment is better but I believe that it is more practical and realistic. We cannot expect people who are not appointed on merit to understand and implement the meritocratic system when it comes to the appointment of judicial persons.
Lord Mayhew of Twysden: I support the amendment. I reserve, with sympathy, my position on the amendment spoken to by the noble Lord, Lord Maginnis. I say "with sympathy" because I fully understand, and was influenced by, the way in which he supported it. However, I want to hear what the noble Baroness will say in reply. I think that she faces a difficult task in this part of the Bill.
As we have been reminded, the Government insist, correctly, that merit shall be the overriding and dominant criterion for the appointment to the judiciary. That must be right. However, I believe that most people will have difficulty in seeing by what means lay members of an appointments commission can measure judicial merit. I suggest that judicial merit has to be assessed by reference to an informed knowledge and understanding of the record of a particular candidate. By that I do not mean the record in terms of political convenience to one politician or another but in terms of serving the rule of law in a manner that we expect of our judiciary; that is, impartially, without fear or favour and bringing high qualities of character and intellect to bear. For the life of me I see great difficulty, if I were a lay member, in assessing those qualities or, indeed, any of them. I can, however, see dangers of a public perception that lay members will be expected to bring political considerations to bear.
I very much hope that the noble Baroness will answer the question raised by the noble Lord, Lord Maginnis, on why High Court judges are included in this measure and not exempt from it, as are the Lord Chief Justice and Lords Justices of Appeal under the terms of the Bill. When I say "exempt" from it, I mean that they are excluded from what we are talking about at the moment. It seems to me that that distinction is important as the High Court judge will hear applications for judicial review regarding abuse of executive power. That is an immensely important development in our law brought about virtually exclusively by the judiciary and not by Parliament for reasons that we can well understand. All politicians expect, or at least hope, to be in government themselves and do not want to have tiresome judges looking at the way in which they have taken a decision. It is the High Court judge in Northern Ireland, as in England and Wales, to whom application is made for judicial review and who will decide those matters of great political importance, as they sometimes are. Therefore, I hope that the noble Baroness will explain why the High Court judge is to be subject to this method of appointment whereas the even more senior judges are not.
Finally, the whole question of lay participation in an appointments commission is a very difficult one indeed if one is seeking to justify these reforms by reference to the need to improve public confidence in the judiciary. If we had the misfortune to have to undergo surgery, I do not think that we would be

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particularly confident in our surgeon in the knowledge that he had been chosen by a majority of lay people rather than by a majority of his fellow professionals. One can make the same point, perhaps even more vividly, when talking about the selection of airline pilots or the engineers who ensure that the maintenance is properly carried out. Therefore, there is considerable difficulty regarding the concept of the participation of lay people. I believe that that difficulty is confounded and made much worse by the proposal regarding equal numbers. For that reason I support the amendment moved by my noble friend.
Noon
Lord Filkin: As the noble Lord, Lord Maginnis, referred to his Amendment No.25, with the leave of the Committee I shall speak to both at once, if the opposition Benches are comfortable with that.
Lord Glentoran: Before the noble Lord does so, perhaps I may also speak to Amendment No.25. I wish to make two brief points on Amendment No.25. I agree with the noble Lord, Lord Maginnis, that this would be, and could be, a useful amendment if the Minister cannot see his way to giving way on Amendment No.23. It is a rather small safeguard but it is something in the form of a safeguard which would perhaps help public confidence in the way that my noble and learned friend Lord Mayhew pointed out. The clause as it stands gives neither public confidence nor clarification in any shape or form and will certainly not support the merit principle. At this stage of the Bill I seek some form of amendment from the Government to put those problems right.
Lord Filkin: I turn first to the points raised by the noble Lord, Lord Glentoran. He spoke of the importance of depoliticising judicial appointments. The Government could not agree more. As the noble Lord will be well aware, that has been at the heart of the proposals on which we have consulted with regard to England and Wales. I do not wish to stray into that further.
The establishment of a Judicial Appointments Commission for Northern Ireland is part of such a process. At present judicial appointments in Northern Ireland are made by a politician—the Lord Chancellor. He does a particularly good job regarding that process. Nevertheless, those appointments are made by a politician through a process that, while I do not think for a second anyone necessarily says is corrupt or flawed, is opaque. It is not transparent and it is not apparent how that process is carried out. That goes to the heart of why—touching on one of the questions that have been raised—we think that it is right to bring the Justice (Northern Ireland) Bill to the House at this time. We see that there is a need, justification and merit in establishing a Judicial Appointments Commission for Northern Ireland in advance of whenever devolution may be restored as it has fundamentally important benefits to deliver. I say no more now but shall touch on that later, if need be.
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I turn to the question that the noble Lord raised regarding the argument that the judiciary should be in a majority on such a body. As I am sure the Committee will recall, the arithmetic of the commission, as established by the 2002 Act, provides for six judicial members, one of whom is a lay magistrate, and two professional lawyers—a barrister and a solicitor. So, effectively, out of a total membership of 13, including the chairman, it has eight judicial professional members and five lay ones. That does not exactly meet the preference that the noble Lord expressed—he would have preferred a majority of the judiciary—nevertheless eight out of the 13 members of the commission will be deeply seasoned in the law, legal processes and legal systems. Therefore, there will be no lack of depth of understanding of the importance of the judicial process and the skills that might be required to fulfil office as a judge in Northern Ireland.
The further argument was made by the noble Lord, Lord Maginnis, and others that the lay members have no function at all, or they should have a function only if they are expert in some way in legal processes. I believe that that short changes the role of the commission. If one casts one's mind back to the functions of the commission, one sees that they certainly include making recommendations or decisions on judicial appointments. However, they go wider than that. Over a period of time—perhaps we shall discuss this later—the members of the commission consider how they can try to widen the diversity within the judiciary subject—as it always must be—to the fundamental prior test of merit. They also try to ensure that in all parts of our society, certainly not least in Northern Ireland, the public have confidence in the judiciary. That is crucial. I shall not for a second argue that the members of the judiciary in Northern Ireland are seen as anything other than talented, incorruptible and brave in terms of how they have coped during the past 20 or 30 years. However, they are not necessarily always regarded as being in touch with, or understanding, ordinary society, as is the case in England and Wales. That is one of the reasons for appointing lay members to the Judicial Appointments Commission.
Anyone who has sat on a board or a committee knows that it is very difficult to compartmentalise individual members of a board vis-á-vis certain functions. In certain decisions it is undoubtedly the case that certain people on a board have a particular weight because of the depth of their knowledge, their experience and their ability to marshal arguments and evidence. On some decisions one would expect, without in any way implying that one should fetter it through legislation, the judicial members, the lawyers, to be very powerful indeed in their expression of the importance of certain criteria and whether certain candidates meet those criteria.
In other areas the lay members could be expected to have a powerful contribution to make. So 1 do not think that there is a need to specify or limit that in legislation. If anything, the arithmetical balance, as expressed in the 2002 Act leans powerfully towards—how shall I put it?—professional lawyers or the

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judiciary. I make no issue of that, whatever. But it is necessary to move forward now on making that change, because there are important issues to address in terms of confidence, diversity and not necessarily waiting until devolution has been restored. In other words, the Government have a position on the merit of judicial appointment commissions across the United Kingdom, notwithstanding where we are on devolution.
The short answer to why we allow the Judicial Appointments Commission to appoint high court judges is that we were minded, as we indicated in the 2002 Act, to accept recommendation 81 of the review body. We felt that had merit. I will shortly be reminded if it is the case that I have probably not necessarily given satisfaction in my general comments, but have sought to address most of the specific issues that can be answered now. For those reasons it is right to establish the Judicial Appointments Commission now. Its balance is as right as it can be and there is no need to limit the specific roles of membership; given my points about balance and about how commissions, committees or boards work in practice, whereby certain members have particular influence on certain issues, as is right and proper. For those reasons I hope that I have at least given pause for thought to the committee on the two amendments.
Lord Mayhew of Twysden: Returning almost to the beginning of the Minister's remarks, I wish that I was a shorthand writer, because I would not be groping for the noun he used when he said that the judiciary—and he paid it a graceful and well-deserved compliment—was not always seen as being in touch with ordinary, I think he said, "people", although it might have been "life'", "society" or "standards". I cannot remember. But the sense was that a significant proportion of people in Northern Ireland did not find the judiciary in touch. Where is the evidence for that? Northern Ireland is a community of around 1.6 million, extending over six counties; and the judges have been educated almost entirely in maintained schools there, not private schools. They live cheek-jowl with the people whose cases come before them. I would be surprised if there were any significant evidence to support that statement. Could the Minister help?
12.15 p.m.
Lord Filkin: I am pleased that the noble and learned Lord, Lord Mayhew, recognised that I have great respect and some, if limited, direct experience of, the judiciary in Northern Ireland in my current role as the Courts Minister. We are talking about perception, not necessarily always about reality. My evidence came from the Criminal Justice Review of March 2000, when in a survey of Northern Ireland's population.66 per cent thought that the judges were out of touch with ordinary people's thought. There is no great shock there; one would obtain similar figures if the same question were asked in England and Wales. It does not automatically mean that it is true. I am just making the point that there is an issue of confidence.
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When reasons for such views were explored, people thought that judges came from a particular social class—they may have been wrong—and were therefore seen as isolated from the community and unable to understand ordinary lives. We shall return to those issues in other Bills.
There may not always be proof and substance in all those allegations. The argument over why it matters is that judges have to make difficult decisions at times; and the media and the popular press are perhaps over eager to criticise them, saying that they made wrong judgments in difficult cases. Therefore, it is a worry for society if too large a gulf opens between the public's perception of judges, who might be caricatured as being out of touch with reality, and the judgments. If those are put together there is a slight risk that the confidence of the public, particularly in the criminal justice system, is weakened. I shall not make too much of that. All I would say is that the Judicial Appointments Commission is one contribution towards ensuring that the process of selecting judges is, and over a period of time the composition of the judiciary is seen to become, more reflective of society—particularly regarding gender, where the differences are greatest, both in England and Wales and Northern Ireland.
Lord Maginnis of Drumglass: I am quite astonished at the suggestion from the Minister that somehow in the Bill we are talking about make-believe and not about reality. I think he used the term "talking about perceptions". In other words, we are talking about make-believe rather than reality. I have lived for well in excess of 60 years in Northern Ireland. Whatever may be the perception of the judiciary in other parts of the United Kingdom, in Northern Ireland we are a small parochial community. The judges come from no particular stratum of society. In fact, society in Northern Ireland is not stratified in the way that it is, perhaps, in England. So there is not a particular question of detachment from the judiciary. It is a pity that we are looking at what can only be interpreted by people like myself as a levelling down. Instead of enhancing the confidence of the community in the way in which the judiciary is appointed, we are seeking to call into question something that should not be and are therefore undermining the confidence of our community.
The reality over 30 difficult years of dealing on a daily basis—on an hourly basis—with terrorism is that throughout that period the judiciary was seen to be evenhanded to the point of what some might have claimed to be liberalism, under the circumstances. I am not at all convinced by the comments that I have heard. I am certainly not convinced by the argument that the Lord Chancellor is a political figure. I accept that he is someone with special status in judicial matters. We do ourselves no service by somehow decrying something that had 77 per cent acceptance from the community in Northern Ireland. That was an amazing initial finding for Northern Ireland because so often people almost want to have a reason to differ with what is seen as the establishment, the administration, or one tradition or

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another. The figure of 77 per cent was mentioned, yet we are seeking to tweak it and to level down. That is not in the best interests of justice, nor is it in the best interests of the people I know in Northern Ireland.
We shall not have a degree of latitude from the Government on this matter and I give notice at this stage that I shall find it difficult not to oppose the Question that the clause shall stand part.
Lord Glentoran: I thank the Minister for his response. He said that 66 per cent of the population had expressed the view that judges were out of touch. I suggest to him—and he half made the point—that if a survey showed that 44 per cent of the English population felt that judges were totally in touch, he would be a happy man and so would the Lord Chancellor. That is not an unrealistic figure for a community of this kind.
The noble Lord made the argument for transparency, but I never suggested that there was none. At the outset of my brief remarks, I clearly accepted that a lay membership to the commission, if we must have one, would help transparency. However, the Government's number one objective, and ours, is the merit principle, but the Minister did not make a sound argument for that. Indeed, my noble and learned friend Lord Mayhew tore to pieces his argument in relation to maintaining the merit principle. As I have said and as was said to me by a certain person who shall remain nameless, commissions will make political decisions and end up appointing the wrong person or people.
I shall not divide the Committee today. It is useful to explore these arguments. Although I doubt it, I hope that the Government will look again at Amendments Nos.23 and 25 and see how we can strengthen the merit argument in the Bill. The noble Lord, Lord Maginnis, made it clear that, as it stands, it will not encourage or give confidence to the population in Northern Ireland. This is a political Bill—certainly the first part of it—it is not a justice Bill and it will play no part in restoring the confidence of the Unionist population.
In relation to the quality and merit of the current judiciary, it has done a wonderful job for more than 30 years. I believe that the majority of High Court judges come from the Roman Catholic persuasion. That is not to say that they are nationalists or republicans because they would not own up to being either, which is the strength of it.
To suggest that the Lord Chancellor, when appointing judges, is a politician makes a mockery of the whole state of affairs. We all know and understand that the Lord Chancellor has three clear-cut roles which have existed for a long time; legislative, Cabinet and judicial. Until today—I hope that the noble and learned Lord, Lord Falconer, is continuing in this vein he has steadfastly maintained the wearing of those three separate and clear hats. At this stage, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Glentoran Lord Glentoran moved Amendment No.24:
Page 2, line 3, leave out "Secretary of State" and insert "Lord Chancellor"
On Question, amendment agreed to.
[Amendment No.25 not moved.]
Lord Glentoran Lord Glentoran moved Amendment No. 26:
Page 2, line 10. leave out subsection (2).
The noble Lord said: The amendment refers to the subsection which limits the period for which a judge can serve on the Judicial Appointments Commission to a maximum of 10 years. In the 2002 Act, the period which judges may serve is not limited but that of the lay members is.
I am not happy about that for a number of reasons. Many High Court judges in Northern Ireland sit on the Bench for sometimes 20 years and more. That is true of high fliers whose ability to serve on the JAC is of the greatest importance. Secondly, there are only eight High Court judges in Northern Ireland, plus three Lord Justices and the Lord Chief Justice. That makes a total of 12. Given that some of them serve for more than 20 years, if we begin to restrict the period for which the senior judges may serve on the JAC, we will, from a practical point of view, be at risk of running into trouble.
I do not see why it is necessary to limit the period to 10 years. I have heard of no such argument and I shall be interested to hear what the Minister has to say. I can see the argument for lay members because there is a large pool of people to be called upon, a large part of the Province, different groupings and so forth. I can see that turning that membership around over time has considerable benefit. However, if there are only eight High Court judges, I can see no benefit in the change.
I am concerned by another matter. As I read the Bill, the Lord Chief Justice, who is to chair the Joint Advisory Commission, appears to be caught by the provision. If so, he may have already served I0 years, or a substantial part of it, even before his appointment to that post. Are we going to have the Lord Chief Justice barred from chairing the commission because he has already served his 10 years? There appear to be a number of issues of practical and administrative concern, if nothing else. I beg to move.
Lord Filkin: I shall not speak at excessive length. There are three points. The first is the argument of equivalence. That did not seem to us to be a good reason for not having a commonality between judicial and lay members in terms of eligibility to serve on the commission.
The second argument—I am groping for the best adjective to use—is about variety or turnaround. A judge being able to serve a five-year term and then another five-year term, either abutting each other or with a gap between them, gives him the opportunity to make a powerful contribution to the Judicial Appointments Commission. Experience shows that there is benefit in such bodies having some refreshment

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and turnaround. One does not want them to become completely fossilised around one set of members to the exclusion of others.
The third argument is that while the noble Lord, Lord Glentoran, is right, as often, the pool is not limitless, but other people would be able to contribute on a JAC and therefore there is benefit in having some turnaround.
My final point—noble Lords may tease me about it, as it goes slightly against some of the other points that I have just made—is that, on promotion to another tier of the judiciary, a person can have another opportunity to enter the judicial appointments commission, at least conceptually. Whether they would want to do so, I do not know, and whether it would seem appropriate or not, I do not know. But at least that may be a slight comfort to the noble Lord, Lord Glentoran.
12.30 p.m.
Lord Glentoran: Before the noble Lord leaves that point, can he clarify the situation involving the Lord Chief Justice?
Lord Filkin: He is not subject to the time limit; he is there ex officio.
Lord Glentoran: If the Lord Chief Justice is ex officio, does he have a vote on the commission?
Lord Filkin: Yes.
Lord Glentoran: I thank the noble Lord for his answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord Maginnis of Drumglass: Taking an example from the noble Lord, Lord Glentoran, at this stage I shall not continue to oppose the Question whether Clause 2 shall stand part. As I have already made clear, I am less than happy with the response from the Government Front Bench. I hope that, in not opposing the Question whether Clause 2 shall stand part, the Government will reconsider whether there can be a compromise in terms of Amendment No.23. The Government could take that amendment away and perhaps tweak it a little so that there is some change, if not a change to the full extent proposed by the noble Lord, Lord Glentoran. On that basis, I shall not oppose the Question whether Clause 2 shall stand part.
Clause 2, as amended, agreed to.
Clause 3 [Duty of Commission to secure judiciary reflective of the community]:
The Deputy Chairman of Committees (Baroness Fookes): If Amendment No.27 is agreed to, I cannot then call Amendments Nos.28 or 29 by reason of preemption.
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 27:
Page 2, leave out lines 26 to 35.
The noble Lord said: When I spoke on Clause 2, I indicated my concern about the term "reflective of the community". In Clause 3 we have a reiteration of the principle that appointments should be—must be—made solely on the basis of merit. That particular qualification or condition is then watered down by being made subject to being "reflective of the community".
Such is the situation in Northern Ireland that the judiciary is not reflective of the community in one area—that of gender. So the judicial element cannot meet the requirement of subsections (9) and 3(10). If that is the case, I shall give your Lordships an example of how ridiculous this can become. If the judicial element cannot be reflective of the community, neither can the lay element, because the commission as a whole will then be looked at to see how it can be made reflective of the community. Virtually all the judicial element is male. To match that, all the lay element will have to be female. That is not reflective of the community.
Perhaps I may give an example of how this has created a problem for me in terms of district police partnerships. I am chairman elect of a district police partnership and we found ourselves—a number of councillors of every persuasion—sitting round a table and selecting the lay members. We were in total agreement—nationalist and Unionist, Protestant and Catholic—because in my council we work as a team, irrespective of politics or religion. The noble and learned Lord, Lord Mayhew, will bear me out on that matter. Having reached a decision on which we were all agreed, the police board decided that because Sinn Fein within the council was not participating in the district police partnerships and, therefore, under the d'Hondt system, Unionists had a majority among the elected members, then, among the non-elected members, seven out of eight should be Roman Catholic.
The noble and learned Lord, Lord Mayhew, knows my area particularly well. If you take an area such as that covered by Dungannon and South Tyrone borough council, you will find that seven Catholics and one Protestant is hardly reflective of the community, but that is what is being presented to the people out there. They know who their councillors are. They know that their councillors get on with the business. They know we do what we have to do. The same can be applied to the judiciary in this specific case: people getting on and doing what they have to do, irrespective of colour, class or creed. They will not understand if I concur with the direction by the police board—and I have not done so—and I believe that if the police board was right the Secretary of State for Northern Ireland would have overruled me during the past year when I have refused to form the district police partnership in Dungannon and South Tyrone.
I recount that situation to your Lordships because it is important in terms of the judiciary that we do not find that, instead of something that is representative

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and based on a meritocracy, we have something which is tweaked, fiddled and cheated over in order to get something that has little meaning and little relevance to the ordinary person on the street—the consumer. I beg to move.
Lord Monson: In rising to support the amendment, may I enlarge upon what the noble Lord, Lord Maginnis, said about gender? If you are determined to have a judiciary that is reflective of the community, then clearly you must work towards a state of affairs in which 50 or probably 51 per cent of the judiciary are women. Accordingly, all judicial vacancies over the next few years must be filled exclusively by women in order to attain that end. I also wonder how age would be affected. Would you have to have judges ranging in age evenly from 18 to 80? I would be interested to hear what the Minister has to say on that matter.
Lord Fitt: I feel compelled to support some of the reservations that have just been mentioned by the noble Lord, Lord Maginnis. Your Lordships will be aware that over many years I have had reservations about the appointment of judges in Northern Ireland. It would be entirely dishonest to say that there was not a very high political element in the appointment of judges in Northern Ireland. I have repeated in your Lordships' House and in Committee the details of a particular case in which I was involved, although I do not want to go into that again.
However, what do I think of the commission? It was said by the noble Lord, Lord Maginnis, that the commission would have to be reflective of the community in Northern Ireland. That is an impossibility. In view of the changed political circumstances in Northern Ireland since the most recent Assembly elections, it would be necessary for Sinn Fein and the DUP to have persons appointed to the commission, and all kinds of objections would be raised.
I believe it is significant that the Minister said that the Government want to get this legislation through in advance of devolution being restored to the Assembly. But that would be a very dangerous attitude to take because people in Northern Ireland, and in particular Sinn Fein and the SDLP, have repeatedly put forward their ideas for reforming the police, the judiciary and the criminal justice system. Those are the three main elements which they have put forward in all their submissions.
In view of the changed political circumstances, I ask the Minister whether it is advisable to rush this Bill on to the statute book. If there is to be devolution and if, as I predict, Sinn Fein and the DUP will want to be represented, they will say that this legislation was rushed through this House while they had the support of people in Northern Ireland who elected them and that they are more reflective of the community in Northern Ireland than are Members of your Lordships' House. I believe it is hard to disagree with that argument.
I turn to the appointment of the lay members of the commission. Anyone from Northern Ireland will recognise that every person in Northern Ireland has a
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political opinion, whether they are nationalists or Unionists. No one in Northern Ireland is picked for any position on the grounds that he has no political opinions. When the members of the commission are appointed, they will have political opinions. Indeed, that will be the reason for their appointment because they represent nationalists or Unionists. Therefore, there will be a continuation of discrimination on one side or the other.
I believe that over the past 10 or 20 years—in fact, since direct rule in 1972—dramatic changes have taken place in the appointment of judges. Prior to that, a certain section of the community—namely, the Catholics and nationalists—had no high opinion on the appointment of judges. As I said, I have illustrated a particular case time and again in your Lordships' House.
Until the recent changes, the Lord Chancellor had responsibility for appointing judges in Northern Ireland. There was one case—I do not want to go into it now in detail—in which the Government of Northern Ireland made a recommendation to the Lord Chancellor. That amounted to political interference with the Lord Chancellor taking a role in the appointment of judges. Therefore, one cannot say that the commission will be set up with the lay members having no political opinions.
The noble and learned Lord, Lord Mayhew, said that Northern Ireland judges were well known and that they lived cheek by jowl with the community in which they served. That is totally untrue. One should talk to any of the policemen in Northern Ireland who drive the judges around in cars and stand with them when they go to social functions. Although this may sometimes be exaggerated, it is said that judges in Northern Ireland dare not go into a supermarket on their own without the support of a policeman. They could not walk the streets in certain areas of Belfast, particularly in nationalist areas but, in some cases, Unionist areas as well. They are not living cheek by jowl with the community in which they serve on the judiciary. So it would he dishonest to say that the judges know the people with whom they deal and on whom they will pass decisions one way or another.
Therefore, the Government are not faced with an easy task. I agree with the noble Lord, Lord Maginnis, when he said that it is an absolute impossibility to appoint members to the commission who are totally neutral and yet reflective of the community. That is the reality of Northern Ireland. Does the Minister believe that he has held adequate discussions with the political representatives in Northern Ireland? Does he not feel that it would be injudicious to push through this legislation in advance of devolution being restored to the Northern Ireland Assembly? Once the Assembly is elected, it will want to express opinions on the criminal justice Bill. Therefore, it may be right for the Minister to hold back before discussions are held with the newly elected political parties, which have thought about such political change in Northern Ireland since the Assembly elections.
12.45 p.m.
Lord Filkin: This has been an important and interesting debate. Perhaps I may start by returning to the essential elements of Clause 3. The first limb of it—subsection (8)—contains the absolutely crucial wording:
"The selection of a person to be appointed, or recommended for appointment, to a listed judicial office… must be made solely on the basis of merit".
In response to an earlier discussion that we had, I am genuinely racking my brains to think how on earth one could make that clearer or stronger. However, it seems to me that that point must be met. It cannot be compromised; it cannot be balanced; it must be met. Merit is and must always be the test.
Lord Maginnis of Drumglass: With respect, will the Minister look at the next two words? However clear that is, it is "subject to". Those words cannot be ignored, and I should be disappointed if the Minister were to ignore them as though that were not the case.
Lord Filkin: I shall defer to the noble Lord if I am wrong, but I understand "subject to" to mean that what follows must take a subsidiary position to what has just been stated.
The next limb of Clause 3 states that,
"the Commission must engage in a programme of action designed to secure, so far as it is reasonably practicable to do so. that appointments to listed judicial offices are such that those holding such offices are reflective of the community".
The final part of the clause states that,
"the Commission must, so far as it is reasonably practicable to do so, secure that a range of persons reflective of the community…is available for consideration by the Commission".
It seems to me that the draftsmanship and the policy behind that is right because it is saying that the appointment of our judiciary on merit must never be compromised. However, it is also saying that, while that is paramount, if one can still seek to address some of the issues that are apparent in terms of the diversity of the judiciary, it is desirable as a position of policy to try to do so.
I turn to why I and the Government believe that that matters. We touched on this issue in a debate in September on a Motion tabled by the noble Lord, Lord Lester of Herne Hill. It was suggested then that there were three essential arguments why diversity matters. If one does not take the position that women are more stupid than men—which I do not believe anyone in this House is likely to—one has to ask the question why it is there are so few women in the judiciary. In Northern Ireland 87 per cent of the judiciary are men. Therefore if it is a fact—and it is not dissimilar in England and Wales—one is led to question what it is about the system that leads to that result. That is not to say that people making these appointments are sexist or biased. I have no view or knowledge to that effect. However, something leads to a judiciary with that kind of composition.
Why does it matter? It matters on three grounds. First, let us go back to the point of confidence. If one believes women have as much brain-power and
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character as men, we are likely to be missing talent as a consequence of the process that leads to these results. So the first argument is one of talent.
The second one is fairness. If there are such talented women and the system is not consciously designed to disadvantage them, it must mean that there is something about the process that leads to talented women not being able to get into positions when they would like to do so. The third one is the point of confidence. I shall not repeat what I said on that.
Those are the arguments about why diversity matters, but diversity has to be seen within the context of not compromising merit. One may say that it is impossible to do it; that diversity cannot be addressed without compromising merit. That has not been my experience and I do not believe it has been the experience in British public policy over the past 20 years when a range of private and public sector organisations have tried to uphold the principle of appointing the best person for a role or a job and also to question why the system seemed to lead to either bias in terms of gender or ethnicity.
While nobody claims perfection, there has been an enormous amount of learnt experience about how one sometimes has to look at the nature of processes and adjust them to ensure that people have an opportunity to compete on a fair basis and then be judged on merit. In essence, that is what the Judicial Appointments Commission is being asked to do—in part, to make decisions or recommendations; in part to get information about what is happening in the system, but in part also to explore impediments that lead to these results. It is not being asked to go around pointing fingers and saying that Ministers or the senior judiciary are biased; it will try to see if there is something in the nature of the system that leads to these results. If that is the case, then we need to stimulate a debate in society about what can be done to change it. That would be a debate as much within the Bar Council or the Law Society, as it would be within the processes that lead to immediate decisions. So that element of the work is much more longer term, but it will bring in a process over time that is more likely to lead to the opportunity for talented people to come forward and then, if they meet the merit test, to be appointed. I hope that answers the important question raised by the noble Lord, Lord Monson. We are not saying "the next X per cent", it can only be on merit and it is governed by "so far as is practicable".
The noble Lord, Lord Fitt, in his Second Reading speech made some interesting historical references to what happened in the past. He was arguing that it would not be good to do this now and we should leave it until devolution took place—I apologise to him if I do his arguments an injustice. We cannot wait because these issues of diversity, of transparency, matter and there is every reason for starting that process now, rather than finding reasons for putting it off. I have no idea when devolution will happen. I hope it will happen sooner rather than later if the tests that need to be in place for it to happen can be met. It might be sooner or it might be later. Either way, if the Judicial Appointments Commission, through doing its work, starts to lay the ground for deepening confidence,

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increasing transparency and leading over time to more diversity, I would have thought that the Assembly would welcome that.
I apologise to the Committee if I have talked at too great length, but I have outlined the argumentation as to why we think that there is no risk in this. The legislation is properly balanced and is tightly conditional, subject to the supremacy of merit and so it should be.
Lord Monson: The Minister has, as always, put his case extremely well. However, let me put another question to him. If merit is the only criterion which counts, why should there be a compulsory retirement age for judges? If a judge is as competent, alert and on the ball in their seventies as they were 20 years earlier, why should they be forced to retire?
Lord Filkin: Well, this is rash but not knowing the answer, I shall venture one or two reasons. Recognising, as I increasingly do, the benefits that age brings to wisdom, the judges already have a pretty high retirement age. Secondly, we are all at risk, as time goes by, of succumbing to the diseases of age. Therefore the risk of losing one's acuity does increase as one ages, particularly when one gets beyond 75. Thirdly, there is the argument that at times organisations do need space to allow people with talent to come through. So off the cuff, those would be my reflections.
Lord Mayhew of Twysden: I should have responded to the implied invitation of noble Lord, Lord Maginnis, that I should confirm what he had to say about the way in which the council he has sat on for a very long time operates regardless of political or community differences. I very willingly do so. I also wish to ask the Minister whether he could explain the significance of the difference between "being reflective of" and "being representative of"? There has been a change to "reflective" from "representative". I am not sure what the intended significance of that may be.
Lastly, I should like to reply to the noble Lord, Lord Fitt who invited me to recant from my assertion that the judges knew their people because they had been at school with them and lived cheek by jowl. I do not think I have to recant from that solely because there are areas in which judges cannot proceed without protection officers. Perhaps that may be said to be throughout Northern Ireland. I do not believe that having lived in that community, man and boy, and having served as a solicitor or at the Bar before they became judges, they somehow become cocooned and a kind of amnesia falls so that they are unable to determine how people think and how they behave, simply by virtue of appointment to the Bench. I do not believe that I am called upon to recant from that. Of course they have difficulties but those are imposed upon them by what is still called the Emergency after 30 years.
Lastly, I hope the Minister will not endorse what the noble Lord, Lord Fitt, says about widespread political influence in the appointment of judges under the present system. I have only had experience of two Lord
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Chancellors and am absolutely satisfied that the judges appointed at that time in Northern Ireland were appointed by reference to merit. It so happened—and it was a felicitous happening—that the High Court judges did and I believe still do contain a majority of those who come from the Catholic side of the community. That was regarded as fortuitous and it certainly was not the product of intention.
1 p.m.
Lord Filkin: On the use of "reflective" rather than "representative", there are probably two reasons. First, if I recollect, we received some good arguments and advice on the matter and often, if not always, our ears are open to such arguments. The second argument, which is not just semantics, is that the word "representative" bears a slight risk that people will think that one is there to represent the community or that one is a delegate. That is exactly the reverse of what we would expect to be the case. The word "reflective", a softer term, avoids any risk in that respect, which is why we have been keen to use it.
On the second point raised by the noble and learned Lord on political influence, I can speak with direct, firsthand experience of my relatively limited time in the Department for Constitutional Affairs. I am absolutely clear from that experience that both officials and the Lord Chancellor when operating in the mode of judicial appointment could not be more punctilious about the process, and issues of political affiliation or community affiliation would not be part of their consideration. They would make judgments on merit, as I am sure was the case when the noble and learned Lord, Lord Mayhew, had strong interest in such issues.
Lord Maginnis of Drumglass: In over 20 years in the Palace of Westminster I have often felt that what one has to say as someone who comes from a small community or a small geographical area of the United Kingdom is not given the same degree of importance as that said by someone who comes from a larger geographical area. In this respect, I am disappointed that the noble Lord, Lord Filkin, has not taken up a single, solitary point that I made when I introduced the amendment. I know that that was not deliberate.
I listened to his general, clever, reasonable response and it was quite convincing. But sadly I do not live in a totally reasonably environment; I live in an environment where there is still an underlying suspicion, where there are differences between different religious traditions and differences between political parties. I was pleased that the noble and learned Lord, Lord Mayhew, endorsed what I said about my district council area. The reason I told that story was because I wanted it understood that what we had achieved as elected representatives was undermined by well intentioned, but quite foolish, legislation pertaining to the independent element of district police partnerships. We are being driven back towards an entrenchment of religious or political considerations. The noble Lord, Lord Fitt, has very forcefully indicated that that is the case.
The situation is changing in Northern Ireland and I tend to agree more with the noble and learned Lord, Lord Mayhew, about judges' ability to live cheek by

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jowl. Yes, of course, they have been under threat from terrorists. The fact that they have police guards—the noble and learned Lord said that they go to the supermarkets, to rugby clubs, to soccer clubs and wherever else with their police guards—indicates that they come from within our society and that they move back and forward within all aspects of that society. Moreover—this is the more up-to-date position—the chief constable is now in the process of trying to remove such guards from judges because he believes that our society is becoming more tolerant.
There are important issues that I believe need to be taken into consideration. I shall conclude with the point that I made earlier. In the district police partnership in Dungannon the independent element is being forced to be proxy for the absent Sinn Fein councillors. That is the reality. What does the system do to find proxies for absent Sinn Fein councillors? It says that if you are a Catholic you will do. None of my Catholic friends is a Sinn Fein supporter. A huge majority within the Catholic tradition disapproves of everything that Sinn Fein and the IRA stood for. Hence, that particular situation is discouraging and it is dismantling what we have attempted to achieve.
I would like the noble Lord, Lord Filkin, to contemplate that and to contemplate whether, by putting in this unnecessary qualification "Subject to", he will improve by one jot, one iota, the situation that we should have, in which judges are appointed and the commission's attention is very firmly drawn to the fact that they should be appointed solely on the basis of merit. With no qualifications and no political compromise, let us see whether Northern Ireland can be allowed to work without continuously being dragged back to religion and politics on a day-to-day basis.
The Deputy Chairman of Committees: Does the noble Lord seek to withdraw the amendment or to press it?
Lord Maginnis of Drumglass: I beg leave to withdraw the amendment at this stage. I take my lead from what other noble Lords have done so far.
Amendment, by leave, withdrawn.
Lord Kingsland Lord Kingsland moved Amendment No. 28:
Page 2, line 26, after "a" insert "continuing"
The noble Lord said: Amendment No.28 is grouped with Amendment No.29. They both concern, as did the previous amendment, Clause 3 which is entitled:
"Duty of Commission to secure judiciary reflective of the community".
The amendments are intended to probe further the definition of "reflective" and of the expression "continuing programme". I apologise if anything that I say is repetitious of what has been said in the previous debate.
I thank the Minister for the opportunity of talking to his civil servants before the Committee stage of the Bill. One topic that we discussed was the definition of "reflective". I am pleased to see that all four of the
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noble Lord's civil servants in the Box are ladies. It may be said that the department has overachieved in terms of the definition.
On that occasion we discussed the department's view of the definition. Helpfully, my attention was drawn to the Justice (Northern Ireland) Act 2002, Schedule 2, paragraph 5, sub-paragraph (3). It concerns the annual report that the commission must make following its establishment. Sub-paragraph (3) states:
"The information to be included about any persons in an annual report must include information about their gender, age, ethnic origins and community background and the part of Northern Ireland (if any) with which they regard themselves as being most closely associated".
As the discussion continued with the Minister's advisers, it was clear to me that their view about the principal purpose of the word "reflective" was to put gender, age and ethnic origins as the three primary factors in determining the issues which should be considered by the Judicial Appointments Commission. I shall be most grateful if the Minister, in responding to my observations, will either confirm or develop that point in the context of paragraph 5(3).
I turn to Clause 3 of the Bill. The Minister has already made it clear that the expression,
"solely on the basis of merit",
contained in Clause 3 means just what it says. Amendments Nos.28 and 29 are intended to re-emphasise that by making certain changes to subsections (9) and (10). It would be helpful to me, if not to other Members of the Committee, if I could quote those two subsections before making my observations. Subsection (9) states that, subject to the obligation to make appointments solely on the basis of merit,
"the Commission must engage in a programme of action designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland".
Subsection (10) states,
"As part of that programme of action 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".
Clearly in the early stages of the commission's life it will be less easy to satisfy the,
"as far as reasonably practicable",
criteria in subsection (10) than after a successful continuing programme of action. So the logic of my amendment to subsection (10) really lies in the requirements of subsection (11).
Amendment No.29 seeks to emphasise that the programme undertaken by the commission should be open-ended, a continuing programme; it should not have a life of only two, three, four or even five years. If I am right in assuming that gender, age and ethnic origin are the key ingredients of "reflective", then clearly we shall need an open-ended programme.
I can deal with Amendment No.29 briefly. It concerns the importance of laying these matters before your Lordships and another House every year for an appropriate debate. I beg to move.
Lord Filkin: The noble Lord, Lord Kingsland, is absolutely correct that gender, ethnicity and age are extremely important. They do not necessarily all have exactly the same importance. If one is looking at the variance between what we think we have at present—we do not really know—and what the society is, the differential is greater on some than others. The gender issue is the clearest example. At one level, as far as we understand and it is perhaps easiest to spot, there are no ethnic minority members of the judiciary in Northern Ireland. On the other hand the proportion of the population from ethnic minority backgrounds in Northern Ireland is also very low. Hence my two points about the gap.
For reasons of experience there will always be a limit as to how far one can go with age. Nevertheless, it seems to us that that is an important criterion, as it seemed to this Chamber when it passed the 2002 Act. It is important to keep track of it, partly because it touches on a later point of the noble Lord, Lord Kingsland; that if one is not bringing in appropriate people at the beginning of the process, one will not have appropriate people to choose from later on.
In terms of a continuing programme, while I do not accept the noble Lord's amendment, I certainly agree with his argument. He is fundamentally right that this sort of process of change does not happen overnight. My experience is that it is a 10, 15 or even 20-year programme of change. That is another reason for starting now rather than putting it off. It is not something that one can fix within two or three years. Therefore I totally agree with the noble Lord that the process should be continuing.
I am being slightly churlish about not accepting the amendment but give the commitment that the process must be continuing. The statutory duty exists and it will continue until such time, if ever, Parliament rescinds it. So the nature of the legislation ensures that it is continuing. I was a little churlish about not accepting the amendment because we have not really started yet and there is not much of a programme at present to continue. We perhaps therefore need a different term from "continuing".
1.15 p.m.
Lord Kingsland: I am grateful for the Minister's explanation, which is extremely helpful. The crucial issue that I wanted to emphasise is that we cannot have the third paragraph without the second paragraph. If we want to produce a range of candidates for a specific job, which is what appears from the text of the Bill, we have to have a programme of the sort suggested and it has to be long-term, otherwise we will never reach subparagraph (3). That is the crucial point that I wanted to emphasise.
Lord Filkin: I totally agree. It is through those processes that one avoids there being a conflict with "merit". But that takes time; it is a long process.
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I talked about three specific criteria. I should not forget community background. The noble and learned Lord, Lord Mayhew, has spoken to us. As far as one can judge—we do not have accurate statistics on this—the judiciary is not grossly disproportionate in its community backgrounds. Nevertheless, it is right and proper, for obvious reasons in Northern Ireland, to keep that under review and to try to ensure that there is nothing in the process that leads us in the wrong direction rather than in a better direction.
What is not relevant and what will not he monitored will be political views and political affiliations in any respect whatever. I am in the unhappy position of totally agreeing with the noble Lord, Lord Kingsland, and yet resisting his amendment.
Lord Kingsland: Desolated as I am by the final message of the Minister, I shall not press my amendment. I shall reflect on what to do on Report, but beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.29 not moved.]
Clause 3 agreed to.
Baroness Farrington of Ribbleton: I beg to move that the House be now resumed. In moving this Motion I suggest that the Committee Stage begin again at the agreed time of 2.30 p.m.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.

Sudan
1.19 p.m.
Baroness Coxrose to ask Her Majesty's Government what is their policy on recent developments in Sudan
The noble Baroness said: My Lords, I am most grateful to all noble Lords contributing to this debate, at a time that is so critical for the people of Sudan.
Since the National Islamic Front (NIF) Islamist regime took power by military coup in 1989 and declared military jihad against all who oppose it, the toll of human suffering, with 2 million dead and 5 million displaced, exceeds the combined toll of Rwanda, Somalia and former Yugoslavia. There is now a ray of hope with the peace talks, which need strong encouragement and urgent measures to resolve outstanding problems.
I shall focus primarily on the continuing violence and violations of human rights in Darfur and the unresolved status of the "marginalised areas". I wish first to refer to another concern: the imposition of Sharia law in the north and Khartoum in particular. If Khartoum remains the capital of Sudan, it must reflect the beliefs, traditions and culture of all Sudanese people. Many are deeply opposed to Sharia, which violates principles of the Universal Declaration of Human Rights (UDHR) such as equality before the law and freedom to choose and to change religion. Moreover, the NIF is implementing

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harsh Sharia punishments, such as sentencing Intisar Bakri Abdulgader, a 16 year-old Christian girl, to flogging with 100 lashes for adultery, while the man who forced her into this situation remains entirely free from any penalty. This sentence would violate the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
I turn to the continuing conflict in Darfur, where the situation is so grave that senior UN officials have warned of an impending human catastrophe: Jan Egeland, UN Under-Secretary-General for Humanitarian Affairs declared that the humanitarian crisis in Darfur is probably the,
"worst in the world today".
All the evidence demonstrates that the destruction of the primarily African Muslim peoples, through deliberate attacks on civilians by Khartoum-backed Arab militias and deliberate denial of urgently needed humanitarian relief amounts to "ethnic cleansing". That phrase was used explicitly by the UN Resident and Humanitarian Coordinator for Sudan, Mukesh Kapila, in a BBC radio interview on 18 December.
Although he was making the point that the many reports of ethnic cleansing cannot presently be confirmed because of Khartoum's denial of access to humanitarian relief and international observers, other UN officials and Sudan analysts have been explicitly speaking of the "systematic" denial of humanitarian relief, as well as the "systematic" nature of militia attacks on non-combatant civilians with the "organised" destruction of the Fur, Masseleit, and the Zaghawa tribal groups.
Also, a Channel 4 news report on 6 January alleged "ethnic cleansing", showing the first images taken inside Darfur, of ghost village after burnt ghost village, destroyed hospitals and mosques and blackened skeletons of burnt civilians. Old men, women and children, without food or possessions, stood stranded in the desert and testified to horrific and systematic attacks across the region. Pictures of Sudanese Government Antonov bombers flying overhead proved that those perpetrating the attacks are not merely northern tribes with a vendetta but the NIF Government.
The scale of that catastrophe is enormous: MSF estimates that there are about 750, 000 displaced people in Darfur; and that in December 30, 000 had fled into Chad, with another 3, 000 fleeing last week. The NIF claims that,
"the [Sudanese] Government is firm on fully shouldering its responsibilities of protecting the lives and the property of citizens, and relief workers in Darfur",
describes its substantial relief programmes. But all the evidence from NGOs, refugee testimonies and these first media reports belies its claim. Access by international NGOs is severely limited and their activities are very restricted. And there were reports of yet more aerial bombardment of civilians by the NIF
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as recently as Monday of this week. Consideration should be given perhaps to indicting the NIF for crimes against humanity.
The United States Holocaust Memorial Museum's Committee on Conscience concluded that Darfur has given new urgency to the committee's long-standing "genocide warning" for Sudan, which was previously focused on southern Sudan and the Nuba Mountains. The committee indicated that its,
"warning was based on the following actions of the [military government] of Sudan: a divide-to-destroy strategy of pitting ethnic groups against each other, with enormous loss of civilian life; the use of mass starvation as a weapon of destruction: toleration of the enslavement of women and children by government-allied militias; the incessant bombing of hospitals, clinics, schools and other civilian and humanitarian targets; disruption and destabilization of the communities of those who flee the war zones to other parts of Sudan; and widespread persecution on account of race, ethnicity and religion".
It concluded that,
"taken individually, each of these actions is a disaster for the victims. Taken together, they threaten the physical destruction of entire groups".
The International Crisis Group's most recent report declares that Khartoum-backed Arab militias in Darfur are attacking,
"unprotected villages with no apparent link to the rebels other than their ethnic profile";
and Amnesty International has warned that,
"the situation in Darfur is at risk of rapidly degenerating into a full-scale civil war where ethnicity is manipulated".
The conclusion is that there is compelling evidence that the Khartoum Government is "largely responsible" for the human rights and humanitarian crisis in Darfur. It is intolerable that the international community continues to allow what all evidence suggests is genocide. Therefore, the EU's recent call for a cease-fire, for the protection of civilians and for unimpeded humanitarian access is welcome.
However, urgent international action is also essential. Khartoum's claim of "national sovereignty" must not be allowed to conceal the desperate plight of hundreds of thousands of innocent civilians or hinder access to them. One can only surmise that the failure of the international community to ensure humanitarian intervention derives from an unwillingness to disturb diplomatic initiatives involved with the peace talks. But that is a dangerous misunderstanding because, unless the international community shows its concern for the people of Darfur, and the peoples of the designated marginalised regions of Nuba Mountains, Abyei Province and Blue Nile, as well as other marginalised peoples, such as the Beia people of eastern Sudan, peace will be very partial and ultimately unsustainable.
All these people have suffered at the hands of the regime in Khartoum—brutality, discrimination and a lack of representation and of a share of the national wealth. At present, they may reasonably conclude that the international vision of peace is focused only on Khartoum and the south. Unless all the people of Sudan have cause to believe that their interests—indeed their physical and cultural survival—are enshrined in any peace agreements, those agreements may not produce a lasting peace. The incentive to resort to armed

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insurrection could prove irresistible. And, if Khartoum sees that the international community is willing to ignore the massive humanitarian crisis in Darfur and to condone its denial of access to humanitarian aid, it may conclude that it can remain obdurate and achieve outcomes on its terms.
The United States, the other countries in the troika—Norway and the UK—as well as Inter-Governmental Authority on Development (IGAD) countries, must look comprehensively at Sudan's problems if the goal is to secure a just and lasting peace.
Perhaps I may therefore conclude by asking the Minister whether Her Majesty's Government will urge: the NIF regime to open all parts of Sudan, especially the conflict-wracked regions of Darfur, to international humanitarian and human rights organisations; urge all involved in the peace talks to ensure that the wishes of all those living in the marginalised areas are taken fully into account in any decisions concerning their future status; ensure that any funds for reconstruction are conditional on full and transparent implementation of all aspects of the agreement; use their influence to ensure the protection of fundamental human rights, according to the UDHR and other international conventions, for all citizens of Sudan; and, finally, with regard to Darfur, work alongside other EU member states to facilitate the passing of a United Nations Security Council resolution calling for a comprehensive ceasefire, the convening of peace talks that include the presence of high-level international observers, an end to attacks on civilians, immediate and unimpeded humanitarian access, and the positioning of international monitors.
The people of Sudan believe that Britain is uniquely placed to help. They do not forget our historic relationship, which bequeathed many benefits but also a legacy of bitter conflicts, for which we carry an historic responsibility.
I look forward to hearing from the Minister how Her Majesty's Government will fulfil that responsibility at this critical juncture, helping Africa's largest nation to move forward from carnage and catastrophe to peace, justice and prosperity. The opportunity for this sea change has not been so propitious for decades; it is an opportunity that must not be lost.
1.30 p.m.
Lord Clarke of Hampstead: My Lords, it is indeed a pleasure to follow the noble Baroness, Lady Cox, and to thank her for the opportunity to discuss recent events in Sudan. I pay tribute to her for her untiring efforts on behalf of the people of Sudan and, as the House well knows, in many other parts of the world.
There are many issues that are matters of concern to all who want to see positive moves by the Sudanese authorities that could lead towards a less repressive set of policies being implemented by the Government of that country. This debate, short as it is, will, I am sure, note that there have been some encouraging breakthroughs in the peace talks that have taken place in Naivasha. At the same time, events in the country itself indicate that the Government of Sudan continue
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with their policies of repression and the abuse of human rights. In fact, comment has been made that the peace talks are being used by the Sudanese Government as a means of avoiding the necessity of fighting a war on more than one front.
Human rights are still being abused; people living in northern Sudan continue to have their basic human rights violated. The right to a free press is still a long way from the people of Sudan. It had been the hope of' many that press freedom would be a reality, following a decree by President al-Bashir last August. He had decreed that state censorship of newspapers should be lifted. That hope was soon dashed. Censorship, together with regular suspension of the right of some newspapers to publish, continues. Within days of the president's decree, the daily Al Alwan was suspended on 2 September. Originally banned until 24 September, a further ban was imposed two days later. It was eventually lifted on 16 October.
Similar censorship and banning of other newspapers has taken place. The Khartoum Monitor, an English-language daily, was suspended on 13 September, in direct defiance of an Appeal Court ruling that had quashed an earlier cancellation of that paper's licence. It was allowed to reappear later in October.
Five and a half weeks later, the paper was suspended again, the seventh time in two years. The allegations against the Khartoum Monitor were that it promoted slavery, worked against the peace process and worked against the Government. Other papers, including Al Azimah, have had suspensions and bans imposed on them by the Government.
Not only newspapers are affected by interference; the allegations that are so often made against the press have also been made against the independent television channel Al-Jazeera. It has been alleged that in December, representatives of the Sudanese national security forces visited its offices and informed staff of the Government's displeasure at some of its programmes. Later in the month, on 17 December, security operatives raided the agency's Khartoum offices and arrested Salih Adam Belo, a journalist, and his cameraman, Hamid Tirab. The security people also confiscated their equipment. Mr Belo was accused of transmitting programmes that were,
"stuffed with false information and poor, biased analyses, with pictures and scenes selected to serve its ends".
The National Security Authority, which arrested Mr Belo, has the power to detain people without charge or trial for up to nine months. The evidence cited against Mr Belo included accusations that he had transmitted programmes reporting on tuberculosis, landmine victims and events in the western Darfur region. Mr Belo was released from Kober prison on 24 December. He continues to undergo interrogation.
On 1 January, the security authorities are reported to have said to the Government in Khartoum that they wanted the licence that allows Al-Jazeera to have an office in the country revoked. Mr Belo is one of many courageous journalists who tried to collect and publish the facts about what is happening in their country.

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There have been protests both locally and internationally. The German news agency, DPA, reported that Sudanese journalists organised a sit-in at the offices of Al Ayam and the Khartoum Monitor. They were protesting about the banning of newspapers. More than 30 journalists representing 17 newspapers have signed a statement that by taking the action they did, they hope to,
"guarantee rights of expression and to enhance freedoms".
They called for the lifting of the bans and for fair trials for the two papers.
There is insufficient time to mention other facts about this repression and the denial of people's rights to read or see what is happening in their country. I would, however, like to refer to one other area of concern—the treatment of human rights defenders and trade unionists. The harassment of trade unionists and human rights defenders has also continued. On 21 December last year, the NSA arrested nine members of the General Trade Union Council at a peaceful meeting in a house at Shambat, Khartoum north. The men were interrogated about the activities of their organisation. They were released seven and a half hours later and ordered to report to the agency's offices the following morning at 11 o'clock. The following day, the men were not questioned but held until 6 p.m., and again ordered to report back the following day.
On 28 December, the NSA arrested Dr Madawi Ibrahim Adam, a human rights activist and consultant engineer at Lambda Engineering Company. He is also chairperson of the Sudan Social Development Organisation, a registered non-governmental organisation. Dr Adam was arrested at his home in Omdurman; security force operatives are said to have searched the house, seized documents and damaged the building. One of the documents seized was a tender for a project to develop water stations in southern Sudan.
Within Sudan, there are others, and other organisations, who want to express their concern about the treatment meted out to representatives of NGOs. Students and the Sudan Organisation Against Torture continue to highlight many of the abuses that are taking place.
I conclude by asking my noble friend the Minister to press our Government to let the Sudanese authorities know of the concern that many outside of Sudan have for the people of that country, who are looking forward to the day when free speech and the defence of basic human rights become a reality in Sudan.
1.36 p.m.
The Earl of Sandwich: My Lords, the prospect of a genuine peace agreement in Sudan is obviously tremendous news. I apologise to the noble Baroness, Lady Cox, for being late for her speech. She has pursued this issue for longer than I can remember, and she must feel some satisfaction. Congratulations are due to all the negotiators, but it is also time to recognise the commitment of this Government and the valuable work put in by our FCO envoys and their staff who helped put the talks back on track last
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summer—not, for once, overshadowed by the United States, whose pressure behind the scenes has also contributed. But it is not over yet.
The wealth-sharing agreement signed last week was another milestone, given the bitterness of the oil war in Upper Nile and the resulting internal divisions in the south. Oil revenues now amount to more than two-thirds of Sudan's export earnings, and a 50:50 split, supervised by a national commission of experts, will give the south a huge psychological advantage as well as an economic leap forward. However, we are not there yet. This is only the first stage and there are still substantive issues to resolve, not least control over oil in Abyei in Kordofan and the other disputed regions. Agreements in lakeside hotels in Kenya seem very far removed from the frontline in western Sudan. The Foreign Minister has suggested having a final signature in Africa—contrary to what Senator Danforth is proposing—which seems more appropriate than Washington.
In Darfur, the collapse of talks sponsored by the Chad President last month has brought further conflict. Two previous ceasefires have failed. According to Amnesty International, more than 200 people, mostly women and children, were reportedly killed this month, when scores of villages around Zalingei in west Darfur were again attacked by Government armed forces and Janjawid militias, including armed rebels from Chad. According to refugee accounts, the marauders came on horses and camels. Homes were burnt, livestock and possessions were looted and many children were abducted. Some 7, 000 have been displaced in the latest raids, some crossing the Chad border and most now needing food and medical attention.
Since last April, more than 700, 000 people have fled their homes, mostly to other towns in Darfur, while more than 90, 000 have crossed the border to Chad. Our own DfID is supporting relief work through the NGOs. UN aid workers intend to move 15, 000 refugees away from the frontier to protect them from cross-border attacks by Sudanese militia and aircraft. The picture is extremely complicated because the dominant ethnic group, the Zaghawa, straddle both sides of the border and have allegiance to different political parties.
The UN estimates that 3, 000 have died in this conflict alone. Human rights agencies like Justice Africa and Anti-Slavery International fear a return to the pattern of civil war in Bahr el-Ghazal in which government-sponsored militia have carried out murderous raids and abductions over many years. As an ASI council member, I do hope the Government of Sudan recognise the strength of feeling on abductions, given all the detailed work done by their own committees with the Dinka people with the support of UNICEF and Save the Children.
As the noble Lord, Lord Clarke, has already said, activists in Darfur and elsewhere, human rights workers and journalists are still being held in detention without charge and many have reported the use of torture. An unelected government that continue to deny their citizens free speech and commit well

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documented human rights violations are not a government who deserve international recognition as a party to the new peace agreement.
President al-Bashir is not yet behaving like a peacemaker. He has extended the emergency for a year and is seeking an internal military solution in Darfur just at a time when he has gained some international respect in peace talks with the south. By talking with different voices Khartoum will soon lose diplomatic credibility if it does not reopen talks with some mediator from outside, other than Chad which is already a party. At the very least, the GoS and the SPLM should jointly agree to find a solution to Darfur outside the IGAD peace process.
Will Her Majesty's Government join in international protests against the latest raids in Darfur this month, including the use of aircraft by the GoS? Will they urge both parties to the final agreement that it should contain a clause committing them to a peaceful resolution of the conflict in Darfur? Does the Minister agree that it would be premature for the parties to sign before that is done?
Colonel Garang says that peace is now irreversible, but many other critical issues are now being discussed such as the joint armed force and the release of POWs with demobilisation much further down the line. The UN is now to take on a monitoring task through the monitoring and protection teams and I assume that the UK will play some part in that.
Power-sharing arrangements under an interim national administration still have to be decided. Once signed, the peace deal is to remain in force during a six-year period when southern Sudan is at last able to enjoy a degree of autonomy. Like many risky diplomatic deals, this one is built on blocks that are not yet all in place. A successful agreement presupposes reconciliation in the south, which is not a foregone conclusion. The enthusiastic public reception given to the SPLA in Khartoum in November showed that it is ready for power, but a key question is the sharing of jobs in the interim administration and whether the SPLM can bring together the multitude of small parties and political factions from the past. In the north, the picture is not much clearer. The Umma and DUP parties are split and Hassan al-Turabi remains a wild card. His Popular National Congress is now drawing people away from the NIF-dominated National Congress.
Finally, the NGOs, especially those with expertise in human rights and democracy, will have an important role in building confidence in the new administration. The new peace agreement must bring with it a stronger legal framework, leading to a new atmosphere of openness and a greater involvement of civil society in national and local government, and in meeting—above all—the urgent reconstruction needs of the country.
1.43 p.m.
Lord Alton of Liverpool: My Lords, my noble friend Lord Sandwich, along with the noble Lord, Lord Clarke of Hampstead. rightly paid tribute to the noble Baroness,
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Lady Cox, for so consistently keeping events in Sudan before your Lordships' House. I am happy to join them in that tribute. I also join my noble friend in paying tribute to the role played by the Minister, the noble Baroness, Lady Symons of Vernham Dean, in constantly and intelligently dealing with the peace process and keeping us informed of what is happening in Sudan. Recently, she will recall the Question from the noble Baroness, Lady Cox, about the situation in Darfur. Along with others, I asked supplementary questions about that and was grateful to the Minister for the reply that she gave on that occasion. I look forward to hearing what she has to say today about the continuing problems in Darfur.
Obviously we all welcome the progress made in the peace talks in Kenya, particularly the agreement on wealth sharing that was signed last week. That agreement has managed to cover a number of crucial areas, including the division of revenues, the management of oil resources, and the reconstruction of some of the areas devastated by the war. I wish to talk especially about the role of oil, in the past and future, in helping to facilitate that process of reconstruction.
The agreement seems to give the ravaged areas of southern Sudan, which I visited just over a year ago, a fair deal. Just as importantly, it gives hope to those people whose lives have been adversely affected by the exploitation of the oil fields. In particular, I welcome the provisions in the agreement that those people who have suffered are entitled to some form of compensation. That the Government of Sudan is required to take action in cases in which the exploitation has caused
"fundamental social and environmental problems",
is also progress.
In parenthesis, I might add that the Auxiliary Bishop of Torit, Bishop Akio Johnson Mutek—who has had nine or 10 attempts made on his life—specifically raised the involvement of British oil companies with me during my visit to Torit. He vividly encapsulated the issue by his remark that,
"every barrel of your oil is half full of our blood".
We in the West bear a significant responsibility for financing a government that has practised genocide against its own people. During the past week I have written to the chairman of trustees of one of our most respected major British charities pointing out that their own complicity in the industry has been concurrent with running a disinvestment campaign. In 2000, the charity first asked shareholders and pension funds to consider disinvesting from oil companies operating in Sudan, because they were fuelling the war. It named British Petroleum, the largest minority shareholder in PetroChina, as an indirect investor.
In 2001, the charity called for an EU ban on investment in these oil companies as the only way to ensure that:
"European business is not financing the war nor exacerbating human rights violations".
On that occasion, the charity named Royal Dutch/Shell as well as BP.

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Today, through the European Coalition on Oil in Sudan, the charity continues to urge,
"shareholders, pension funds and institutional investors to divest from companies active in Sudan's oil extracting industry or trading in Nile Blend Crude, including indirect investors such as BP".
Although the charity has called on others to disinvest, it has failed to do so itself. It talks much about "positive engagement", but it has failed to produce any example of engaging with these companies through its investments. Throughout the whole campaign, the charity has continued to hold shares in both BP and Shell through its own company pension fund. If its own arguments are correct, then it would have to accept that it is complicit in the killing of thousands of Sudanese Christians, animists, and those Muslims who remained in the south.
Despite repeated telephone calls following my letter, I am disappointed to say that I have not had a response from the charity in time for this debate. All of us—especially charities running disinvestment campaigns—need to consider carefully how we use funds. Charities, especially, have a duty to consider the churches and individuals who support them, and should know how their actions will appear to their supporters. On the positive side, oil interests will play a significant part in the shaping of the new Sudan. Those who have investments should, at the very minimum, use their leverage to engage companies in pressing for change.
There remain several outstanding issues on which companies, charities and those who invest in them could act in assisting the peace talks to find a way forward. One of those relates to the proposed system of power sharing, including the rotating presidency, and the quota of ministerial posts that will be given to the SPLA. It is important that the SPLA receives a fair deal here. In particular, it is worth noting that, at present, the NIF Government has numerous parallel systems that govern security and other areas of government, and these may hinder SPLA ministers from exercising any real power.
The relationship between the proposed tiers of government is another area that needs greater clarification and may require further safeguards. There are three tiers proposed for the interim period: national government, the authority governing southern Sudan, and the authorities governing the states and regions. How these different tiers will relate to each other has not yet been properly resolved. Another problematic issue regularly raised by the noble Baroness, Lady Cox, is worth reiterating—the issue of the future arrangements for the three marginalized areas—namely, the Nuba Mountains, the Southern Blue Nile, which is also known as the Funj Region, and Abyei district. That is crucial. Although those areas do not form part of southern Sudan geographically, they share the same ethnicity. People from those areas have fought alongside the south and successive northern governments have consistently underdeveloped them. It is important that, in any final peace deal, the treatment that has taken place in the past is acknowledged and they are treated in the future with
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fairness and justice. Companies with economic muscle should use it to insist that Khartoum takes that question, and the others that I have raised, seriously.
Those outstanding issues, together with past experience, help to explain why many southerners, while welcoming the progress made so far, continue to be very wary about the sincerity of the NIF. As one southern observer called Natalino Losuba Mana, who runs Norwegian People's Aid in the Yei county, says:
"No one is celebrating yet. Well wait to see these promises of peace fulfilled rather than living in hope. We still feel we will make a very good agreement that will never get beyond paper".
To conclude, the Minister has said that Her Majesty's Government are,
"committed to helping the Sudanese parties reach a comprehensive peace agreement". —[Official Report, 6/11/03; col.951.]
I welcome that approach and hope that our debate today will assist her and her advisers as they continue to help the peace talks to move forward.
1.51 p.m.
Lord Avebury: My Lords, I join in the congratulations to the noble Baroness, Lady Cox, which all noble Lords have expressed, not only on returning to the question of Sudan in this House for the nth time, but also for the indefatigable and incredibly brave work that she does in Sudan itself.
A year ago, I said that the Government would have to be generous in reaching a compromise between the SPLA's demand for 60 per cent of the oil revenues and the offer of 10 per cent that was then on the table. As we have heard, they were so prepared, and the final deal of 50–50 between north and south is a fair one, as the noble Earl, Lord Sandwich, acknowledged. The extension to non-oil revenues is sensible too.
The establishment of a dual banking system, with an Islamic no-interest section in the north and a conventional section in the south will be a challenging project, because the Bank of Southern Sudan must be established in a vast territory that has had no banking facilities throughout the war. The common currency, the free movement of capital, and semi-independent fiscal regimes in north and south will create formidable difficulties in the management of the system, and the detailed regulations will need a great deal of input from both Islamic and conventional banking experts in the outside world.
Many issues are still outstanding that must be resolved, including the power sharing referred to by the noble Lord, Lord Alton, and the status of the Nuba Mountains, the Southern Blue Nile and Abyei. I see that the first two of those territories are well on the way to a solution, but the situation in Abyei still poses formidable difficulties as it is home to a largely Dinka population. and a number of SPLA leaders were from that area of the country. However, President al-Bashir was adamant in a nationally televised speech last November that the 1956 boundary between north and south that is the legacy of independence was immutable.

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There are also security arrangements to be made, including the number and composition of the international ceasefire monitoring force, the relocation of belligerent troops, including particularly the repatriation of government of Sudan forces to the north, and the prevention of incursions in the area of the border between north and south. Details remain to be agreed of the referendum implementation mechanism for the vote on the self-determination of the south in five years' time.
Meanwhile, apart from the peace agreement between north and south, there are other problems, as noble Lords have mentioned. Notably, there is the crisis in Darfur where, as the International Crisis Group pointed out a month ago,
"an end to the war in the south could become the catalyst for a new and bloody chapter in Darfur unless negotiations are broadened to include western rebels".
We must face the fact that there is in Darfur an overwhelming humanitarian catastrophe, comparable in scale with what happened in Kosovo prior to the international intervention there. Noble Lords may need to reflect on the difference in treatment between Kosovo and Darfur, in the sense that there has been no call whatever, on behalf of the victims of the conflict, for the international community to go in and help.
As the noble Earl, Lord Sandwich, said, 3,000 have been killed in that conflict from the outbreak in February 2003 to the end of the year. For those who have fled across the border into Chad, I have the figure of 95, 000— and 30, 000 in December alone, according to UNHCR. Hundreds of thousands are estimated to be internally displaced in Darfur itself. Precise estimates are impossible because international humanitarian agencies are kept out, but Amnesty International says that it has received lists of hundreds of civilians killed and villages destroyed, as well as the actual names of children said to have been abducted by government-supported militia.
The picture given by refugees in Chad is the same. They told UNHCR that the militia attacked villages, first shooting people caught in the streets. Starting early in the morning, the militia raid village houses, stealing everything including livestock. One refugee from the village of Garuma was quoted in the UNHCR report as saying that on 2 January 150 militiamen arrived on horses and camels in his village. He fled with his pregnant wife and their five children and hid in the surrounding hills, where his wife gave birth one day after they had escaped. The militia set fire to the scrub around the hill and the family had to take refuge again on another small hillock. The entire population of his village—about 2, 000 people—had gone into the surrounding countryside or moved to the nearby villages or crossed the border into Chad.
When I raised the matter of Darfur in the debate on 6 November, to which the noble Lord, Lord Alton, referred, the Minister acknowledged the problem in Darfur and said that we would continue to press for unfettered access. She did not respond to the suggestion that the African Union should consider the wider implications of the conflict. However, there are now African voices, such as the respected Kenyan newspaper, The Nation, calling for the international community to
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seek ways in which to address the crisis in the region. Chad is a poor country and its eastern region bordering the epicentre of the crisis in western Darfur is semi-arid. It simply cannot cope with a flood of destitute refugees, and Sudan should he told in no uncertain terms that its conduct towards civilians in Darfur is intolerable.
The noble Lord, Lord Clarke, covered amply the serious problems of human rights. I am particularly concerned about the alleged rule of the Sharia that requires 100 lashes to be imposed on unmarried women who become pregnant after being raped. That includes two cases that have been taken up by our ambassador in Khartoum of teenage girls whose appeals against sentence are still awaited. As I wrote to Chris Mullin in November, we have to say plainly that such penalties are unacceptable. He replied a month ago that we would press for a response to the representations already made about those cases. It would not be sufficient for the girls' appeals to be granted on some technicality; it is the law of zina itself that is contrary to natural justice and should be repealed. I hope that we will not be deterred by false considerations of cultural sensitivity from saying so to the Sudanese Government.
There are also the numerous cases, to which the noble Lord, Lord Clarke, referred, of detention without trial, execution and attacks on freedom of the press. The Sudanese Foreign Minister, Mustapha Osman Ismail, says that he wants a final peace agreement with the south to be signed in Africa and not in Washington, as President Bush has suggested, to show that Africans can solve African problems. That is an excellent proposal. Why should not Khartoum demonstrate that Sudan can also deal with its other problems by simultaneously stopping the attacks in Darfur and ending cruel punishments, executions and arbitrary detentions? It might gain a reputation for itself not only for statesmanship in ending the north-south conflict but for a new initiative on human rights in the whole of Africa.
1.59 p.m.
Baroness Rawlings: My Lords, I warmly congratulate my noble friend Lady Cox on securing this timely debate on the situation in Sudan, and add my tributes for all the marvellous work that she does to those made by other noble Lords today. As I said before, and I will say again, it is especially important that we discuss the situation in Sudan regularly, because, as many of your Lordships have pointed out, it is extremely volatile and is subject to almost weekly change. There is no doubt that everyone is delighted by steps towards peace in a country that has been dominated by a civil war for the past 20 years. We welcome the agreement to share government revenues, particularly from oil, as we heard from the noble Earl, Lord Sandwich, as well as the planned new authority in the south of the country.
The situation in Sudan has come a long way. We congratulate all those involved in bringing the agreement about. For the Islamist regime now to say hat it is prepared to allow more freedom of religion and to let the south hold a referendum on succession in six years' time,

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along with power sharing, is a significant shift. However, there are still vital issues that, if left neglected, could undo all the progress made so far. I speak of the regions ignored by the agreement. First, the agreement fails to express clearly how the marginal areas of the Southern Blue Nile, the Nuba mountains and the Abyei will be governed, as mentioned by the noble Lord, Lord Alton of Liverpool, and the noble Lord, Lord Avebury. What steps are being taken to ensure that these area interests are represented and will come under the new authority? Of course, the most significant of ignored regions is Darfur, as mentioned by my noble friend Lady Cox, and most other noble Lords.
Conflict in the three states of Darfur in western Sudan has brought a huge humanitarian crisis to the Chadian border. Fighting continues in this region, which is excluded from the agreement signed the other day. According to the UN World Food Programme, it has caused the displacement of around 1 million people, about 95, 000 refugees, including up to 30, 000 during December, who have fled fighting between the forces loyal to the government in Khartoum and the Sudanese People's Liberation Movement, as well as tribal and ethnic clashes.
The UN has recently launched an emergency appeal for 11 million dollars to cover the food needs of 60, 000 of the most vulnerable Sudanese refugees. Will the Minister tell us what contribution HMG will make to this fund? What other support are they providing to try to prevent worsening of the humanitarian crisis? As well as the refugees in Chad, there are 1 million internally displaced people. Killings and damage to land contribute to this year's poor agricultural production, despite earlier promises of a satisfactory yield. The situation in the south of Darfur is apparently especially precarious due to the desert environment of the area.
On Monday 12 January, the UN reported that the needs of the Darfur region could not be met due to insecurity. A spokesman said that only 15 per cent of the people are in areas accessible by the UN. The prolific supply of small arms, increased banditry have led to a complete breakdown in law and order on the ground. Meanwhile, the UN Children's Fund has reported growing numbers of displaced children working as domestic labour, prostitutes and beggars. It has been reported too that the Sudanese Government are not fully protecting the lives and property of relief workers in the Darfur region, let alone its citizens. This will be the end of the tentative steps to peace in Sudan unless it is immediately addressed. I hope that the noble Baroness will tell us in winding up what Her Majesty's Government are planning to do about the continued problems in Darfur and its integration into the rest of Sudan.
Christian Aid, among other NGOs, has expressed a particular concern regarding the effective verification and monitoring of the agreement, including ceasefire arrangements. There are still unconfirmed reports of fighting in south Sudan, including attacks on the oil fields. Will the Minister tell the House what action or plans Her Majesty's Government are undertaking to
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support the monitoring of the situation, and what measures are in place to bring parties to account if they do so breach the agreements?
Now that there is an agreement in at least part of Sudan, what measures are being taken to implement and support a thorough survey of the condition of the country? We are particularly worried that the devastating spread of HIV/AIDS, the displacement of large numbers of people, and the rape that tends to accompany warfare, will have created ideal conditions for the further rapid and widespread transmission of the virus. This support, as we have seen, can significantly affect a country's ability to get back on its feet.
I have touched on but some of the main points surrounding the situation in Sudan as a whole. Darfur continues to be a critical issue that cannot be ignored. It undermines the great steps forward taken in the current agreement, and places at risk the future development and reduction of poverty in the country as a whole.
2.5 p.m.
Baroness Symons of Vernham Dean: My Lords, I am grateful to the noble Baroness, Lady Cox, for bringing the recent developments in Sudan to the attention of the House. I welcome her continued dedication to the plight of the Sudanese people, and I thank her for all the advice that she has given to the Government on this issue. It has been valuable to have this relationship with her.
The last time we discussed developments in Sudan, things were looking more positive than for some time before that. Excellent progress continues to be made on the peace talks in Naivasha between the Government and the SPLM. Both sides have now described the peace talks as irreversible, and we hope that they will continue to provide a framework agreement soon. Although problems persist in some areas—and we have heard a great deal about that in the past 45 minutes—there is, at last, a real chance for peace in Sudan, and a real chance to end the suffering of the Sudanese people.
It has been freely acknowledged around the House that as is so often the case in peace talks, we are investing heavily in this process, while at the same time acknowledging, as so many of your Lordships have, that there continue to be some terrible problems. There are problems around human rights, including, as my noble friend Lord Clarke of Hampstead reminded us, press freedom, including some of the appalling punishments that your Lordships have described. There is also the enormously difficult situation in Darfur. The noble Baroness concentrated much of her address on the situation in Darfur, but she also rightly acknowledged that the peace process is going ahead, and that point was also acknowledged by my noble friend Lord Clarke.
On 7 January, the Government and the SPLM signed an agreement on wealth-sharing arrangements, which is an important factor in what we are discussing. That provides for the division of oil revenues, a point to which the noble Lord, Lord Alton, rightly drew our

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attention, the banking arrangements and the creation of a joint transition team to prepare budget estimates and raise funds for reconstruction. This is a significant step towards peace in Sudan. I would be happy to arrange a full briefing on this issue, if noble Lords have not yet had one.
I recognise the strength of the argument that the noble Lord, Lord Alton, put forward about disinvestment. I hope that he will agree that while we are making progress in this area, and while we may be pressing forward on the peace issues, now may not be the time to press the lobby on disinvestment. The oil in Sudan should be used for the benefit of all. It is the oil that may provide the platform for the improvement overall in the conditions in Sudan. I hope that the agreement signed on 7 January will allow us to give that greater reality on the ground.
The parties are continuing to talk about resolving the remaining issues on power-sharing in the three conflict areas of Southern Blue Nile, the Nuba Mountains and Abyei. The noble Lord, Lord Avebury, reminded us of that point. There are important issues to be resolved here, and there must be a genuinely inclusive, democratic system of governance that respects the rights of all Sudanese people. That is the best way to ensure popular ownership of the peacekeeping arrangements and thus the sustainability of any future peace arrangements. I assure the noble Baroness, Lady Rawlings—who made some very forceful points on some of these areas of outstanding difficulties—that those matters have not yet been resolved and are still under discussion. The points that she has made are very well taken in those continuing peace discussions.
Given the progress already made, the parties hope to have a framework agreement within weeks, and a comprehensive package within a few months. There is still work to he done on those issues. If we are able to get such a comprehensive package it will be a real achievement, one to which the United Kingdom will have made a significant contribution through our special representative for Sudan, Alan Goulty, and the joint Foreign Office/DfID Sudan Unit, as well as the embassy in Khartoum.
Many of your Lordships have played a crucial role in that, including the noble Lord, Lord Alton, and the noble Baroness, Lady Cox. I should also like to place on record ministerial thanks for all the work and commitment that officials in both the FCO and DfID have dedicated to this project in the past 18 months, a time when we have been in constant contact with all parties, offering support and advice.
Let us turn to the issue of United Kingdom financial assistance. As many of your Lordships said, ultimately it does not matter what is written on the piece of paper—what really matters is how that piece of paper is implemented. Of course what is on the paper is important, but the real issue is what happens on the ground. Implementation is going to be even more difficult than negotiating the agreement. The support of the international community, as many of your Lordships have acknowledged, will be crucial to ensuring that the peace holds.
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The noble Baroness, Lady Rawlings, asked various questions on UK financial assistance. We have allocated£28 million to Sudan for 2003–04. There are plans for a donor conference in Oslo once a comprehensive peace agreement is secured. We would expect our contribution to increase significantly in future years. We will of course need to co-ordinate carefully with the United Nations and other governments and non-governmental organisations working in Sudan. Co-operation and careful planning are the only way to ensure that Sudan gets maximum benefit from the external assistance that it receives.
Sudan will also need our help to meet the humanitarian, recovery and reintegration needs of its people. The noble Lord, Lord Alton, was absolutely right when he spoke about the importance of this implementation issue. The UN Department of Peacekeeping Operations has already carried out a scoping mission to plan for a UN peace support operation. We will continue to help with the demobilisation, disarmament and reintegration of combatants, and local level peace-building work.
There will also be an opportunity for Sudan to develop more effective systems of governance, particularly of justice and security, and in terms of public administration. That of course includes the development of the capacity of civil society in the fields of human and child rights, gender and legal awareness so that they are able to engage with donors as partners and critically engage with the government.
There will also be much work to be done with the Sudanese to develop and implement policies that really do benefit the poor people. The noble Lord used some compelling language about poverty in relation to the oil industry. We acknowledge that it is enormously important to address the poverty issue. Improved macroeconomic management will be key in that endeavour, as will resolution of Sudan's debt problems. Once an agreement has been signed, the UK will chair a support group of key international creditors and donors to help ensure timely co-ordinated action for clearance of debt arrears. I hope that that, too, is a piece of good news.
The relevant international agencies and financial institutions are planning joint assessment missions in both the north and the south to look at the requirements for development assistance. The Sudanese parties must obviously be fully involved in the process and feel full ownership of the outcomes of such a process.
Many noble Lords were very worried about the human rights issues. We continue to be very concerned indeed about the human rights position in the whole of Sudan, regardless of religious or ethnic background. The promotion of human rights through advocacy with the government and support for NGOs remains one of this Government's priorities.
I assure your Lordships that we raise the human rights issue on a regular basis, both bilaterally and as part of the EU/Sudan dialogue. Indeed, my right honourable friend the Secretary of State for International Development, Hilary Benn, discussed the human rights situation with the President of Sudan and others during his visit to

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Khartoum on 10 December. He then raised the issue of the cross-amputation sentence on a 16 year-old boy who has been accused of armed robbery.
I assure the noble Lord, Lord Avebury, that we arc also raising the sentence of flogging on the 16 year-old girl to whom he referred. The punishment has been postponed until 23 January. I am not clear at this juncture whether this is merely a postponement or whether it will be a rehearing of the sentence, which is indeed a savage and terrible one. I undertake to keep the noble Lord informed on that as he has made such a point of raising it with my honourable friend.
The question of Sharia law is a very difficult one; it raises a whole range of issues. We respect the view that Sharia law has some part to play. However, I am bound to say that we also share the view of the noble Lord, Lord Avebury, that the application of these very extreme punishments is inconsistent with international human rights standards and with Sudan's obligations under the International Covenant on Civil and Political Rights. I hope that that gives him the explicit assurance that he seeks.
We have also raised the issues raised by my noble friend Lord Clarke of Hampstead about the suppression of freedom of the press. Our ambassador in Khartoum spoke to the Minister of Justice about this matter on 22 December. We continue to press on that issue.
Similarly, we continue to press on the issue surrounding the recent report of arrests of political activists, supporters of NGOs and trades unionists. Our embassy in Khartoum has raised these issues with the Government in Sudan who have acknowledged our concerns and who have indeed undertaken to look into these matters and report back to us. I shall of course report hack to the noble Lord on that.
We need to monitor all these issues very closely. We were disappointed that, despite our hard work and that of our EU partners, we did not win the vote on the UN Commission on Human Rights last year. It was lost, as many of your Lordships know, on 16 April 2003. The defeat meant the termination of the mandate of the special rapporteur. We now have to consider how to tackle this issue in 2004. I should also tell your Lordships very quickly that, last week, in the margins of the regional conference on democracy and human rights held in Sanaa, my noble and learned friend Lord Goldsmith was able to discuss some of these issues with the Sudanese Foreign Minister. I hope that that news also is welcome to your Lordships.
I still have some time until the 1.30 p.m. restart time. With your Lordships' permission, perhaps I can take three or four more minutes to say something about what happened in Darfur. Many of your Lordships concentrated your remarks on the concerns that remain in Darfur. Your Lordships are right that the situation is very worrying. Insecurity in Darfur means that there is limited access, and so there is limited ability to assess the situation properly on the ground. However, as the noble Lord, Lord Avebury, pointed out, the requirements in all sectors—food, water and
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shelter—are enormous. I think that the noble Lord used the word "catastrophic" at one point. These are real problems.
Civilian protection also is a major concern, with repeated reports of human rights abuses perpetrated by various factions, as described by your Lordships this afternoon. Against that background, the breakdown of the peace talks—these are of course separate peace talks—between the government and the Sudan Liberation Movement was a severe blow. All sides should know from bitter experience that a military solution is not in prospect and that peace and reconciliation is the only way forward to a brighter future for Darfur.
Our ambassador in Khartoum and the UK special representative speak to the Government of Sudan and the various Darfur movements on an almost daily basis. We are fully engaged; that is the point which I am very anxious to get over to your Lordships. Indeed, the special representative is in the region this week and has held discussions with the First Vice-President, among others.
By providing for a truly decentralised federal system, the overall Sudan peace agreement should help address some of the root causes of the conflict in Darfur. But in the immediate short-term a ceasefire must be re-established to allow unfettered humanitarian access. We have offered our good offices to all parties to help them reach a peaceful solution. We have also suggested, as many of your Lordships have, that there may be a role for the international community in assisting in the implementation of a peace deal.
The noble Earl, Lord Sandwich, also raised points on unimpeded humanitarian access. It is absolutely vital that unimpeded access is given. That is another point that has been raised over and over again.
The noble Baroness, Lady Rawlings, wanted to know how we are monitoring these issues. In the past few days Her Majesty's Government have agreed to provide a temporary senior humanitarian affairs officer to assist the United Nations humanitarian co-ordinator and humanitarian agencies on the ground to strengthen the continuing United Nations and international crisis response. Therefore, we, in this country, are making another effort to put another person on the ground for the monitoring purposes which I acknowledge are enormously important. I assure the noble Earl, Lord Sandwich, that we have raised with the authorities the military and aerial bombardment to which he referred. We have protested about that; we have raised those points. I hope that I shall be able to report further on that.
We are also engaged with the EU heads of mission in Khartoum. We had discussions earlier this month. We and others in the EU have already pressed the Government of Sudan about Darfur and where it stands in the dialogue. Of course, we are pressing through the United Nations and the Secretary General's special envoy; and we are engaged with the United States.

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The Sudanese people know as well as any people anywhere how fragile and complicated peace building can be. It is all too easy for the perhaps disillusioned few to threaten the process. No one underestimates the difficulties that we face, in particular the difficulties in Darfur. But as noble Lords have acknowledged Sudan now has a real opportunity to bring to an end the suffering of its people. It is an opportunity which has to he seized.
It is crucial that everyone, in all parts of Sudan, get to appreciate what is at stake—the real prizes of peace, security, stability and poverty reduction—and that everyone in Sudan feels that they have a say and a stake in their country's future. It is the best way to ensure that any peace agreement holds good for the future.
The price is great, not just for Sudan, but for the entire region. A peace agreement in Sudan brought about under African mediation and implemented in Africa by Africans would be further evidence that while the continent may have its problems, it also has its solutions.
Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure until 2.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 2.23 to 2.30 p.m.]

Justice (Northern Ireland) Bill [H.L.]
House again in Committee.
Clause 4[Appointment of Lord Chief Justice and Lords Justices of Appeal]
Baroness Harris of Richmond Baroness Harris of Richmond moved Amendment No.30:
Page 2, line 41, leave out from beginning to end of line 3 on page 3 and insert—
"(3) The Prime Minister shall make recommendations to Her Majesty concerning all appointments under subsection (1) or (2), based on recommendations made by the First and Deputy First Minister acting jointly, in such forms as the Prime Minister may specify. "
The noble Baroness said: With regard to the appointment of the Lord Chief Justice and Lords Justices of Appeal, we believe that the published Bill has failed to meet the expectation raised in the updated implementation plan published by the Northern Ireland Office that the Prime Minister will appoint persons to these positions,
"based on the recommendations of the First and Deputy First Minister".
Instead the Bill has diminished the role of the First and Deputy First Ministers by requiring the Prime Minister only to "consider" any recommendation for appointment made by the First and Deputy First Ministers. That falls short of the Criminal Justice Review recommendation on this point which the Government purported to accept without qualification in the first plan. The review has provided that responsibility for making recommendations for the appointment of the Lord Chief Justice and Lords
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Justices of Appeal would lie with the Prime Minister, but on the basis of recommendations from the First and Deputy First Ministers.
The review recommendation appears to give greater weight to the recommendations of the First and Deputy First Ministers. Therefore, I ask the Minister why that wording was not incorporated in the Bill given that the same commitment had also been given in the updated implementation plan? Moreover, it seems only consistent with the transfer of judicial appointments from the expected to reserved category of the Northern Ireland Act that the First and Deputy First Ministers would, after devolution, have greater powers in relation to such appointments. I beg to move.
The Deputy Chairman of Committees (Lord Elton): this amendment is carried, I shall be unable to call Amendment No.31 for reason of pre-emption.
Lord Glentoran: I have some inclination to support this amendment. However, I shall shortly move Amendments Nos.31, 32, 33 and 34 which cover basically the same subject, as I understand it, although perhaps our arguments will be different. The points that the noble Baroness made in relation to previous documents, including the review, are all very relevant. I am a little surprised that there is no noble Lord on the Labour Back Benches to take part in this debate. However, that is not my business or the Government's. I support the noble Baroness's amendment, but I would not support it were she to press it as I wish to move my Amendments Nos.31, 32, 33 and 34.
Lord Filkin: This amendment seeks to require the Prime Minister to base his recommendations to Her Majesty on the most senior judicial appointments on the recommendations of the First and Deputy First Ministers. That is how we interpret the amendment's wording and intent.
Under Clause 4 the Prime Minister will be required to consider the recommendations of the First and Deputy First Ministers before he makes a recommendation to Her Majesty. The First and Deputy First Ministers' recommendations will have been made after consultation with the Lord Chief Justice whose views will be made known to the Prime Minister. Our interpretation at least of the subsequent clutch of amendments of the noble Lord, Lord Glentoran, was that they pointed in the other direction from that, but we may have misinterpreted what the words,
"as to the substance or
meant. Time will tell regarding that matter which we shall discuss later. If that were to be the case, I should suggest to the Committee that we are steering a middle course between the Prime Minister being no more than a postman—which I believe is the thrust of the Liberal Democrat recommendation—and how we interpret the recommendation of the noble Lord, Lord Glentoran; namely, that essentially the commission rather than the First and Deputy First Ministers makes the recommendation.

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I hope that the Committee will agree that the process as debated at Second Reading strikes a right and necessary balance by ensuring a central role for the First and Deputy First Ministers and the Prime Minister in a robust and fair procedure. The Prime Minister will, of course, take very seriously the recommendations of the two Ministers acting jointly. We must rely on him to act appropriately. One could not conceive of a Prime Minister lightly dismissing the recommendations of the First Minister and the Deputy First Minister. However, one would not need to be too Machiavellian in nature not to conceive of some circumstances in which he might wish to test, or have some further exploration or probing of, that process. In the circumstances in which we find ourselves, I believe that the discretion that is available to him is exactly right. For those reasons—while one would hope that we are always in a situation where he would be no more than a postman—I do not think that it is wise to remove the possibility of him having some discretion and influence on the process.
Lord Mayhew of Twysden: This is an interesting topic. I should be interested to know from the noble Baroness who will reply to the debate on her amendment what the grounds are for distinguishing between the situation in Northern Ireland in this regard and that in England and Wales. In England and Wales the appointment of the very senior judiciary is made on the recommendation of the Prime Minister to Her Majesty. If I have understood correctly the import of the noble Baroness's amendment, and as has just been said, so far as concerns Northern Ireland the Prime Minister would simply be a postman, in which case why have him or her there at all? Although one recognises that Northern Ireland is in many respects different from the rest of the United Kingdom, I do not think that there is a sufficient reason to distinguish between the constitutional arrangements in this regard. However, I should be interested to hear from the noble Baroness why she believes that there is sufficient reason so to do.
Baroness Harris of Richmond: I take the point that has been made. I reiterate that the measure concerns the recommendations of the First and Deputy First Ministers, but the Bill has diminished their role. I shall consider very carefully what the Minister said. We may return to the matter on Report. In the mean time, I shall reflect on what the Minister said.
Lord Glentoran: Will the noble Baroness tell the House whether the Minister's interpretation is correct—if it is, mine was entirely wrong—that the Liberal Democrat amendment views the Prime Minister solely as a postman?
Baroness Harris of Richmond: No, indeed, we do not consider that that is the case. As I said, I shall reflect on what the Minister said. We may return to the matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glentoran Lord Glentoran moved Amendment No.31:
Page 3, line 3, at end insert ", and
(c) consult the Lord Chancellor"
The noble Lord said: The amendment is about the same subject: the appointment of the Lord Chief Justice. As the clause stands, as the Minister will appreciate having read the amendment, we are not happy. We have grouped the amendments because they all focus on Clause 4, which changes the arrangements for the appointment of the Lord Chief Justice and the Lords Justices of Appeal.
It would be profitable as we are in Committee to have just one debate on the shortcomings of the clause. The amendments are grouped so that we can debate our concerns under one heading. I shall speak to Amendments Nos.31 to 34 and focus on three main points. Essentially, we are not satisfied that the appointment of the most senior judicial officials in Northern Ireland, has the necessary degree of consultation between appropriate parties. In the Bill the chain of consultation is as follows:
Subsection (3) provides for the Prime Minister to ask the First and Deputy First Minister for a recommendation about the appointment "in such a form" as he may specify, which he must consider before he makes a recommendation to Her Majesty the Queen.
Subsection (4) provides for the First and Deputy First Ministers to be obliged to consult the Lord Chief Justice or the most senior Lord Justice of Appeal before making a recommendation to the Prime Minister.
Subsection (5) says that the Judicial Appointments Commission must advise the First and Deputy First Ministers on the procedure they should adopt in formulating a recommendation to the Prime Minister.
Our amendments seek to alter that change of consultation in three principal areas. First, consultation with the Lord Chancellor should be obligatory—that follows the thesis that we have pursued throughout—both for the Prime Minister; and under subsection (3); and the First and Deputy First Ministers in formulating their recommendations under subsection (4). Amendment No.31 would require the Prime Minister to consult the Lord Chancellor under subsection (3)—that is during his consideration of the recommendations put forward to him by the First and Deputy First Ministers. Amendment No.32 would require the First and Deputy First Ministers to consult the Lord Chancellor as well as the Lord Chief Justice under subsection (4) before they make their recommendations to the Prime Minister.
My noble friend Lord Kingsland put forward the fundamental reasons why we think the Lord Chancellor, as the head of the judiciary and having taken the judicial oath, should be responsible for, or at least be part of the consultation process in, judicial appointments. That is, surely, nowhere more necessary than when consulting before the appointment of the Lord Chief Justice and the Lord Justices of Appeal.
Our second major point is highlighted by Amendment No.33. Subsection (5) currently has the Judicial Appointments Commission give advice to the First and Deputy First Ministers on the procedure which should be adopted when making a recommendation under subsection (3). We are bemused as to why they should only give advice on procedure and not on potential candidates themselves. Surely the whole point of the JAC is to make judicial appointments. It should know better than the First and Deputy First Ministers and say from a less political and more impartial basis who should be put forward as worthy recommendations for such senior judicial positions. Amendment No.33 would have them give advice, not only on the procedure to adopt for recommendations hut, on the substance—perhaps on a short list of names of those who the Ministers consider to merit recommendation for the appointments.
Our third point follows that. We believe that there would be serious repercussions if the First and Deputy First Ministers put only one name forward to the Prime Minister under subsection 3(a). It would be hard for that not to be an overtly political decision, especially when currently the First and Deputy First Ministers are hardly likely to both support the same candidate. It might be a case, as happens in many other areas—in that little country, in my little country—of "your choice this time; my turn next time"—orange today and green tomorrow. The political implications of that are more alarming when one bears in mind that the Prime Minister might reject the one name put forward. I hope that lie would maintain that right. Therefore, we suggest that in Amendment No.34 at least three names be put forward in the recommendation by the First and Deputy First Ministers under subsection (3)(a) from which the Prime Minister must choose one.
That proposal would be in accordance with established practice, at least as it was under the noble and learned Lord, Lord Mackay of Clashfern. The respective merits of the judges recommended were explained and a ranking offered. The Prime Minister is not obliged to choose any of them under the amendment, nor should he be as a matter of statute, although normally he might do so. But he needs to be well informed of their perceived respective strengths and possible weaknesses, not merely to know who is the first choice of the First and Deputy First Ministers. I hope that I have made myself clear. I beg to move.
2.45 p.m.
Lord Filkin: I recognise the importance of the issues, the clause and the amendments. We have understood, as have our lawyers, that the thrust of the Liberal Democrat recommendation in the previous amendment left no discretion for the Prime Minister. I would be pleased to hear if that was not their intent, but that is the meaning of the words to us. As I have signalled, the Bill comes between two more extreme positions than that which we have adopted in this part of the Bill. It may be helpful if I put briefly on record the process as it would operate in practice. I am
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suggesting that, because I found it difficult and because in practice they work in reverse chronological order—going backwards rather than forwards in time when being read.
The first part of the process is essential—that before any vacancy arises the Judicial Appointments Commission would advise the First Minister and the Deputy First Minister on the procedure that they should adopt in formulating a recommendation to the Prime Minister on the appointment of the Lord Chief Justice or a Lord Justice of Appeal. So the procedure would have to be set out. The First Minister and the Deputy First Minister would have considered the advice of the commission and agreed, with the approval of the Prime Minister, the procedure that would be used. So, the commission would make recommendations to the First Minister and Deputy First Minister; they would consider a process; and that would then require the agreement of the Prime Minister, the First Minister and the Deputy First Minister before there was a vacancy.
The agreed procedure would be essential to ensure the overall integrity, fairness and transparency of the recommendations. One would expect that it would cover issues such as criteria; whether the process would involve applications or expressions of interest; the type of evidence on which criteria would be measured; the stage at which the Lord Chief Justice would be consulted; and the time that the overall procedure would take. Essentially, the process by which recommendations are to emerge, and the process for testing candidates—if that is not too formal a term—would have been set up.
Assuming that a vacancy arose, the Prime Minister would require the First Minister and the Deputy First Minister to make a recommendation to him in such form as the Prime Minister specified. That would allow the Prime Minister to ask for a single name, or perhaps two or three. The wording "in such form" would give discretion to the Prime Minister to decide on the number of names to be put forward and whether they were ranked. Again, we believe that the discretion provided by the Bill is right.
The First Minister and the Deputy First Minister then apply the procedure in reaching their recommendations. Before finalising them, they consult with the Lord Chief Justice and then submit their recommendations to the Prime Minister together with whatever views the Lord Chief Justice has expressed to them. Alternatively, the Lord Chief Justice may copy his views directly to the Prime Minister. As we signalled at Second Reading, we felt it right that there should be a direct route for advice from the Lord Chief Justice to the Prime Minister before he makes his decision.
The Prime Minister will then consider the recommendations and will no doubt have regard to the advice that the Lord Chief Justice gave to the First Minister and Deputy First Minister. The Prime Minister will then make a recommendation to Her Majesty, who will make the appointment. I apologise for taking time to explain the procedure, but it is a fundamental issue of concern to the Committee. It is our interpretation of the meaning of the clause.

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I turn to the specifics. On consultation with the Lord Chancellor, the process will happen only when devolution has occurred. When devolution has taken place, the Lord Chancellor will not have a role with regard to Northern Ireland. No one can fetter the discretion of the Prime Minister—if he wants to consult with the Lord Chancellor, the ways of government give him plenty of opportunity to do so. But it is wrong in principle to put that on the face of the Bill for the devolution reasons I have given, and perhaps it goes into more detail than is appropriate. It is possible for the Prime Minister to consult if he wants to do so.
I make a similar point with regard to the second issue about the First Minister and Deputy First Minister. They have to consult with the Lord Chief Justice, as well they should not least because his views will be communicated to the Prime Minister before the Prime Minister takes a view. We cannot see why they should not also consult with the Lord Chancellor for the reasons I have previously given. The Lord Chancellor does not have a role in the post-devolution world about which we are talking.
The noble Lord, Lord Glentoran, then asked: why only advice on procedure and not on substance? The Judicial Appointments Commission will be giving advice to the First Minister and Deputy First Minister on the process by which the selection will be run. I do not know what advice they will give—who can?—but clearly there must be the kind of procedures one would expect to see when senior and skilled appointments are put in place. There must be a fair process for indicating the people who can apply, clear criteria and clear processes for testing those criteria. That is the nature of their advice.
The process might or might not involve members of the Judicial Appointments Commission. As the noble Lord, Lord Glentoran, says, they have great expertise in these issues, but it is left open to them what they advise and then the process the First Minister and Deputy First Minister agree. But of course the First Minister and Deputy First Minister can agree that process only if they agree it with the Prime Minister as well.
That may sound complex, but it is complex for a purpose. It tries to ensure that no one person has absolute power in this situation. We believe that is right. There are some health checks and balances on the process as a consequence.
On the final point relating to the Prime Minister—it would be the case if the amendment were carried—the Prime Minister would have the choice of three names. The Bill as it stands allows the Prime Minister to ensure that that happens if he wants it to. Clause 4(3) includes the words "in such form". That means that if the Prime Minister decides as much, he can at the beginning of the process specify that he wants the best three candidates, ranked or unranked, with reasons. Therefore, as the Bill stands, he is at liberty. He may always want that; he may never want that; he might want two names; or he might want more. He should have discretion, which is the thrust of the argument put by the noble Lord, Lord Glentoran.
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The world changes and one cannot always envisage how and in what way. That discretion left with the Prime Minister may be wise and helpful. It allows him to do exactly what the noble Lord, Lord Glentoran, wants, but does not specify that something must always be the case if he judges it to be otherwise. That is our clear view of how the process would work and our suggestion on how it would intercept with the objectives raised by the noble Lord, Lord Glentoran. I respect those objectives.
I believe that I have covered everything and perhaps a little more. The clause as debated on Second Reading reflects Recommendations 75 and 85 of the Criminal Justice Review. I hope that that explanation has been helpful.
Lord Mayhew of Twysden: That was a helpful explanation of the Government's understanding of the effect of the procedure. As the Minister said, at first sight it is slightly confusing because it starts at the end and works back to the beginning.
Perhaps I may make a textual point. The Minister said that the Prime Minister may require the recommendation of the Judicial Appointments Commission to specify one, two, three names or whatever. He says that that is achieved by the words,
"in such form as the Prime Minister may specify".
I find that confusing because on reading the Bill I asked myself whether the Prime Minister would be able to specify that more than one recommendation should be made. He has told us that that is the intention and no doubt his advice is that that is achieved by the use of those words.
That is confusing and I wonder whether the provision ought not to be spelt out more explicitly. It could be done by inserting another subsection such as,
"Whatever form the Prime Minister shall specify shall in any event relate to whether the candidate shall be alone or with one or two others".
But I am wondering whether it would not be better and safer for the Government to adopt the policy of requiring that in any event there shall be more than one candidate. That would remove from the Prime Minister the discretion to ask simply for a single candidate. My noble friend Lord Glentoran has touched upon the reasons that are peculiar to Northern Ireland.
There is much value in looking at the procedure adopted by the Church of England for the appointment of bishops. Lambeth sends two names to the Prime Minister and he can choose one or the other. They are listed in order of preference. He can say, "I don't like either of these. Try again". Under the settlement the Church achieved after a good deal of worry, it cannot send a single name.
Lord Filkin: Yes, it is our clear and firm view that the words,
"in such form as the Prime Minister may specify",

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leave it open to him to require one, two, three names or whatever. However, as this is an important issue I will treble check and will correspond with noble Lords. I have not received advice which puts doubt on that and signals a weakness, but it is critical.
Why not spell it out more clearly? If it is clear enough and the lawyers' advice is clear—and I shall confirm that in writing—there is no need to. Why not specify that there must always be two or three candidates? In essence, that sits on the delicate issue of how the Government are trying to work towards a devolved settlement. One would hope for a situation in which devolution works perfectly and that therefore the Prime Minister's role in the process would be minimal. There are good reasons for wishing that to be the case: the more that Northern Ireland is able to decide on its own affairs in ways that meet the tests of merit and probity that one would expect in a good society, the better. Therefore, there could be circumstances in which the Prime Minister was happy for one name to come forward.
There could be other circumstances when it was felt to be wiser to allow two or three names. In order to allow flexibility in seeing how devolution develops, it would be good to leave the element of discretion in the Bill as it currently is.
3 p.m.
Lord Glentoran: I thank the noble Lord for those explanations. They were very helpful. I am afraid that my brain is such that I shall need to study his comments more carefully in Hansard next week, and I may wish to return to this matter.
I have one question for the noble Lord: what happens before devolution? I thought that the idea of introducing the Bill now was that most of what it contains can be implemented without devolution. The noble Lord said that "in such form" the Prime Minister may make a request, and so on. I have tabled an amendment to try to ensure that that does not happen and that such a provision is not enacted before devolution. But if that amendment were not agreed to, and were the Bill to be enacted before devolution, can the noble Lord explain what would happen?
Lord Filkin: Yes. I should have expressed myself more clearly. The Bill will be enacted before devolution. Were there to be a vacancy—I hope and pray that that there is not to be one shortly—it would not he possible for the First Minister and Deputy First Minister to make a recommendation unless they were in place and devolution had occurred. That is what I was signalling. Unless they are in office and the Assembly has been reconvened and is functioning, there will be no one to fulfil the functions as set out in Clause 4.
Lord Glentoran: I hate to go into detail, but this is the right time. If there is no First Minister and Deputy First Minister and no devolution, but a Judicial Appointments Commission is in place—let us assume that there is a Lord Chancellor or that the Secretary of State at the constitutional department has taken the
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judicial oath—perhaps we shall need to have something in Hansard on how the Government see these appointments taking place.
Lord Filkin: Were there to be a vacancy for a Lord Chief Justice but devolution had not happened, the Lord Chancellor would make the appointment under the existing Act in the way that has just taken place.
Lord Glentoran: I thank the noble Lord for that, and I shall pursue that matter on Report, having read Hansard carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.32 to 34 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Maginnis of Drumglass: I had not intended to pursue this issue until I heard the Minister clearly make a statement that although, before devolution, we were previously promised that the commission would not be formed—it was not advised when the Criminal Justice Review took place. That is really too much. Within two years, the Government will go back on a promise made to this House when the 2002 Act was passed.
Lord Filkin: I may have misunderstood the noble Lord, Lord Maginnis, on that point. As I was seeking to signal, we are bringing forward the establishment of the Judicial Appointments Commission, so that these elements in the appointment of the Lord Chief Justice cannot take place until devolution has happened. In earlier parts of our discussion, I sought to set out why I thought that appointments to the Judicial Appointments Commission were in the interests of Northern Ireland in advance of devolution. That matter was dealt with before lunch. Under Clause 4, those do not operate unless devolution has taken place.
The provision in Clause 4 also brings the process making senior judicial appointments more closely into line with the Criminal Justice Review's recommendations.
Lord Maginnis of Drumglass: I am grateful to the Minister for clarifying that matter. If I misheard or misunderstood what he said to the noble Lord, Lord Glentoran, I apologise. I am reassured by what he has just said and I am grateful.
Clause 4 agreed to.
Clause 5 [Removal or suspension from listed judicial offices]:
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Kingsland: So concerned are the Opposition about this clause, that I thought it appropriate to devote the whole of my wind-up speech at Second Reading to it.

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What is the motive behind this extraordinary change? It is not as though we have any evidence upon which to base it. Not only did the Act which the Government are now seeking to amend receive Royal Assent as recently as 2002; but we have as yet no experience whatever of its operation. In the absence of any convincing answer from the Minister, I am forced to conclude that the effect of the change will be to elevate political considerations as a factor in the dismissal of judges.
The 2002 Bill, already and inexplicably, removes the requirement of an address of both Houses of Parliament for the dismissal of newly appointed Northern Irish High Court judges—a requirement that has existed for more than 400 years. At least, however, under the 2002 Act, the First and Second Ministers will not be able to dismiss such a judge "without the agreement of the Lord Chief Justice"—a person himself only removable on an address of both Houses of Parliament.
Now, under the new Bill, the expression "without the agreement of the Lord Chief Justice" is to be replaced with the expression "except under consultation with the Lord Chief Justice". I ask the noble Lord the Minister: why on earth?
Lord Maginnis of Drumglass: Perhaps I may add my voice to that of the noble Lord, Lord Kingsland, on this issue. Again, I point out that less than two years ago the Government took the view—not blindly I hope, but with consideration—that it was appropriate to secure the agreement of the Lord Chief Justice before a holder of a listed judicial office could be removed or suspended.
Perhaps the Minister can say on how many occasions over the past 18 months the Lord Chief Justice has objected to, or refused to agree to, the removal or suspension of a holder of a listed judicial office. Has he displayed stubbornness and intransigence again and again? If the answer is no—as I suspect it is—then why is this clause in the Bill? If there have been, as I suspect, no such occasions of defiance or conflict as I have outlined, why are we here on this issue?
The noble Lord, Lord Kingsland, makes a very important point. To reduce the place, position and responsibility of the Lord Chief Justice as blatantly as does this element within the Bill is to elevate the opportunity—opportunities will, inevitably, be taken—for political considerations to gain dominance. With all sincerity, I ask the Government to look very carefully at the implications and the dire potential consequences of this change.
Lord Mayhew of Twysden: There can be very few issues more important to the rule of law than those surrounding the circumstances in which a senior judge can be removed. As has already been pointed out, that has been recognised in our constitutional arrangements for 400 years or more. To their credit, the Government
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patently recognised that in the 2002 Act. They stipulated not only that the recommendation of a tribunal to dismiss a judge and for a judge to be dismissed should be a matter of consultation with the Lord Chief Justice of Northern Ireland; they also stipulated that it should not take place save with his agreement.
In these days of transparent and open government, it would be helpful to know on what basis of consultation with the then Lord Chief Justice that provision was included in that Bill, which was subsequently enacted. Was the noble and learned Lord, Lord Carswell—then, Sir Robert Carswell—consulted and may the Committee know what his view about that was? Presumably, he concurred with the provision that his consent should be obtained. I believe that the Government argue that the Criminal Justice Review did not specify that that consent should be obtained. However, one assumes that it was thought necessary, and I should like to know why in 2002 it was felt that it should be obtained.
The noble Baroness, Lady Amos, was kind enough to write to me—for which I am very grateful—following a speech that I made at Second Reading when I alluded to this matter. She was kind enough to say that the noble and learned Lord, Lord Carswell, the then Lord Chief Justice, had been consulted about this amendment, which simply requires consultation. She did not tell me what his view had been. It would be helpful to know whether his view has been obtained. She also went on to say that Sir Brian Kerr, his successor as Lord Chief Justice, was to be consulted, and I expect that, by now, he has been. Therefore, I should like to have a good deal more light thrown upon this matter. It seems very strange that the Government now consider it necessary to dilute the requirement for the consent of the Lord Chief Justice to be obtained. I join the noble Lord, Lord Maginnis, and also my noble friend Lord Kingsland in asking why.
3.15 p.m.
Lord Filkin: As has been said, the clause removes the formal requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. However, the Lord Chief Justice will be consulted on the removal. Clause 5 more closely reflects the recommendation of the Criminal Justice Review.
Perhaps I may set out why we do not believe that there is a risk or a weakness here in relation to the independence of the judiciary. First and fundamentally, the removal of a judicial office holder can only follow the recommendation of a judicial tribunal. Such a tribunal will be brought into existence either by, or in consultation with, the Lord Chief Justice. Therefore, at the start of the process, the Lord Chief Justice will be consulted or he himself may have convened the tribunal.
As the Committee will recall from the 2002 Act, the membership of the tribunal consists of two judges and one lay person. The nature of the judge varies according to the nature of the office holder who is being considered for misconduct. The appointment of

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the judge to the tribunal is recommended by the Lord Chief Justice. Therefore, the Lord Chief Justice has a very strong hand in setting up the tribunal and in its procedures, its terms of reference and its membership. At its simplest, there will always be two judges and one lay person on such a tribunal.
No judge can be dismissed unless such a tribunal recommends dismissal. That is stated categorically in the legislation. Therefore, the process is effectively in the hands of appropriately senior members of the judiciary with a lay member also present.
The question of who chairs the tribunal varies according to the level of seniority of the judge whose conduct gave sufficient cause for concern that it required a tribunal to investigate the issue. However, it would always be chaired either by a Lord of Appeal in Ordinary—a member of the Appellate Committee in this House—or by the Lord Chief Justice or a Lord Justice of Appeal. One of those three would always chair any judicial tribunal set up to investigate what were thought to be sufficient allegations of misconduct to warrant the tribunal. It is fairly clear that we anticipate that the circumstances in which such tribunals would be needed would arise only rarely, but that does not mean that it is not crucial and appropriate to have them.
I now turn to the other questions that were raised. The noble Lord, Lord Maginnis, rightly asked about the position of the Lord Chief Justice in such a situation. Like me, the noble Lord will have a chance to look at Hansard, but I hope that I explained the degree of judicial control over the tribunal process which leads to an investigation. The fundamental point is that a judge cannot be removed unless a tribunal so recommends. A tribunal will always be chaired by either the Lord Chief Justice himself, a judicial Member of the House of Lords or a Lord Justice of Appeal.
The question of consultation with the noble and learned Lord, Lord Carswell, and Sir Brian Kerr is a difficult issue on which to go into full detail. However, I can give a categorical assurance that the noble and learned Lord, Lord Carswell, has been fully consulted on these issues and that Sir Brian Kerr has also recently been consulted by officials in the Northern Ireland court service. Therefore, they have been part of the process of considering this matter, although I am not necessarily putting or not putting their names to it. I shall leave that question suitably anonymous.
I hope that I have explained why it is right to have a process which is so strongly under the control of the judiciary yet which, nevertheless, has a lay element in it. We believe that the clause as set out in the Bill is an appropriate means for investigating allegations of judicial misconduct, should they occur.
Lord Renton: Before the noble Lord sits down, I wonder whether he can explain one point. He referred to the need, or the possibility, of a Member of the House of Lords taking part in the final decision.
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However, is that provision based on the assumption that there will always be Law Lords in your Lordships' House?
Lord Filkin: That is one of the perennial problems of having a sequence of proposals which, as yet. have not all been put in place. I believe that this issue finds expression in the 2002 Act, which refers to members of the Appellate Committee of this House. Should we reach the point where that is changed, clearly amendments will need to be made to part of that Act in order to substitute a "member of the supreme court", if that is the terminology that we use.
Lord Mayhew of Twysden: I thank the Minister for that explanation. He majored, if I may express it in that way, on the input that the Lord Chief Justice would have in the setting up, and manning, of the tribunal. What I do not recall hearing him say is why it is necessary to make this change now. He has explained that there has been consultation. I can understand that there may be reasons for that. However, he has not explained to us, so far as I can recall, why the Government think it necessary within so short a time to make this change so that he Lord Chief Justice's consent, on top of his other input, no longer has to be obtained.
Lord Filkin: For two reasons. The noble and learned Lord, Lord Mayhew, being knowledgeable about Northern Ireland affairs, will have read the Hillsborough agreement as well as I have. More fundamentally, in many situations when a tribunal is set up, the Lord Chief Justice will already have been part of the process. So that situation is a circular one. When he is not part of the process, it will have been chaired by a member of the Appellate Committee of the House of Lords. In our view, one could hardly have a stronger test than that. And the final reason is that it brings us into line with the Criminal Justice Review report and if we think there is no strong reason not to do so, we do think that there is merit in doing so.
Lord Kingsland: Until 24 July 2002, when the Justice (Northern Ireland) Act 2002 came into force, all High Court judges in Northern Ireland were protected from dismissal by a requirement that it could only take place on an Address of both Houses of the United Kingdom Parliament. This procedure was replaced in the 2002 Bill by an equivalent double lock procedure. For a dismissal to take place, first the tribunal, with a majority of judges, was required to recommend dismissal. The second part of the lock was that the Lord Chief Justice of Northern Ireland also had to give his or her approval.
Thus the previous situation was the double lock of both Houses of Parliament. The new situation since July 2002 is the double lock of the tribunal and the Lord Chief Justice. The Government were entirely satisfied with that situation in the middle of 2002. They fought for it, they argued for it, they rationalised it. Now, less than two years later, the Government have decided to remove one of those two locks.

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I have listened to what the Minister said with interest and a degree of sympathy. However, I am forced to conclude that a reasonable person, observing what the Government are proposing and listening to what the Government have said in this debate, would conclude that the reason for the removal of the second part of the lock is wholly political. There seems absolutely no legal rationality whatsoever for doing what the Government have done. If that conclusion is right, it is a very serious matter. I shall not ask your Lordships' House to vote on this matter today but shall certainly return to it at Report. I withdraw my objection to Clause 5 standing part of the Bill.
Clause 5 agreed to.
Baroness Farrington of Ribbleton: I beg to move that the House do now resume. In moving this Motion, I suggest to the Committee that we complete the Committee stage of this Bill next Monday.
Moved, That the House do now resume. (Baroness Farrington of Ribbleton.)
Lord Hylton: Perhaps I may ask the Government why they thought it necessary to continue this Committee stage on Monday. Why not finish it off today and be done with it?
Baroness Farrington of Ribbleton: That is generally accepted to be a matter for the usual channels. The allocation of time is discussed in detail. I know that the noble Lord, Lord Hylton, and other noble Lords who take part in debates on Northern Ireland will recognise that there is a degree of unpredictability about the length of time different parts of the legislation may take. As a courtesy to noble Lords, we discussed during the lunch break whether your Lordships would be prepared to go further on this Bill today knowing that we had agreed a break point. It would be discourteous to Members, not only those here now who are not prepared to continue further, but more importantly to those who wish to take part in the remaining stages of this Bill who had been assured that that would not happen today. I apologise to the noble Lord, Lord Hylton. It is very unusual to stand at this Dispatch Box and apologise to the House for us rising early.
On Question, Motion agreed to.
House resumed.
House adjourned at twenty-six minutes past three o'clock.