§ 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.683
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Transfer to Secretary of State of functions relating to Judicial Appointments Commission]:
§ 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 684 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 685 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 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""686
§ 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 moved Amendment No.23:
Page 1, line 8, at end insert—
( ) In section 3 of the 2002 Act (makeup of the Commission)—
§ 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 687 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.
688 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 689 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.
§ 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.
690 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 691 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. 692 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 693 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.694
§ 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 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 695 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?
§ 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 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 697 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 698 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 700 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, 701 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 702 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 703 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 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 704 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.705
§ 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.
706 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.