Justice (Northern Ireland) Bill

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Mr. McWalter: Does my hon. Friend believe that in a society in which 95 per cent. of people associate themselves with the description Catholic or Protestant, it would be helpful to have five lay members? People will watch like hawks which grouping gets three and which gets two. There are four major political parties but there will be five lay members. Might not four be a more manageable number than five, other things being equal?

Mr. Mallon: I take the hon. Gentleman's point. Four—or six, or 10—might be better. It depends on the political fallout at the time. In the election for Deputy First Minister the numbers did not stack up, and a metamorphosis had to take place. I take that point—but I do not believe that that is the point that the hon. Gentleman is making. I do not view the matter in terms of Catholic or Protestant, or even in terms of Unionist or nationalist. I hate using such labels. In many ways, those terms are redundant.

There will be many debates about the judiciary. Some people might be perceived to be Unionist who very much are not, and some might be perceived to be Catholic who might be Unionist, among other options. A handy number of labels that we can stick on people depending on the number required at any given moment in time will not work.

I would rather see appointed a good, strong, hard-line Unionist who would properly present a good strong Unionist point of view on that commission or other commissions, than create what we have had in the north of Ireland for 30 years—a soft belly of those who are reliable and will not rock the boat, who fall into a pattern socially, academically and in every other way, and ultimately do what they are told.

We have the opportunity to grasp the nettle. The question is whether we have the courage to stand on our own feet, to take on the future ourselves and do it properly, or whether we shall pass the buck again to a Secretary of State or whoever else it may be? If devolution is going to work well, that will be the cornerstone, because once justice returns as a devolved power, the fragmentation of energy and much of the other nonsense will go by the board. There will be real responsibility to be shared.

Mr. Garnier: I want to make two brief points that I hope will be of assistance. I shall perch very carefully on amendment No. 4, which was proposed by my hon. Friend the Member for Reigate. Subsection (5)(c) says that the other members appointed to the Judicial Appointments Commission should include:

    five persons who do not hold (and have never held) a protected judicial office and are not (and have never been) barristers or solicitors (so referred to as ''lay members'').

As we know, a protected judicial office is defined under clause 2(5) and means:

    the office of Lord Chief Justice, the office of Lord Justice of Appeal or a listed judicial office.

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Under clause 3(6), that means that 30 of the 34 listed judicial officers under schedule 1 are precluded from being either judicial members, or—by virtue of their holding a protected judicial office—lay members. Whether it is fair that 30 of those office holders should be excluded all together, I leave for others to work out. I simply want to raise that issue.

My second point is that if we exclude from lay membership of the Judicial Appointments Commission anyone who has ever been a barrister or solicitor, the commission will be denied the assistance of schoolmasters, academics and accountants who may at some stage have qualified for the Bar or as a solicitor. Surely, the answer to the problem is not to say:

    and are not (and have never been) barristers or solicitors,

but to specify those who never been practising barristers or practising solicitors.

There is a distinction between a member of the legal profession who is actively working within it—and who could therefore be biased towards the legal profession, and thus ought not to be a lay member—and one who is not. There will be Members of Parliament who qualified as barristers but who have never practised, and who would have something of value to give as effective lay members to the Judicial Appointments Commission. Those points are not hugely exciting, but they are worth making, and I leave them with the Minister for his consideration.

Mr. Browne: The hon. Member for Montgomeryshire must be feeling fairly lonely now. On the previous group of amendments, my hon. Friend the Member for Newry and Armagh and I abandoned him. Now the hon. Gentleman has had to wave goodbye from his island to someone who is paddling away—but perhaps he has got used to that.

The other preliminary point is that we should not rely on the arithmetic of the hon. Member for Reigate. Perhaps we can rely on him for other things, but the idea that the commission will be 50:50 lay and lawyers is far from the truth. It will consist of six judges, five of whom will be appointed by the Lord Chief Justice, and two lawyers—one barrister and one solicitor—which makes eight lawyers out of a total membership of 13. Not only will there be at least as many judges as lay members—indeed, there will be one more—but there will be two other lawyers, too. One of those will be there specifically to represent the Bar—I mention that particularly for the hon. and learned Member for Harborough—and the other to represent solicitors. There is therefore something to be said for disqualifying other people who have the same qualifications. Whether they have the same interests, or whether the measure should be whether they have practised, there is something to be said for not allowing those branches of the legal profession double representation by accident.

6.15 pm

Mr. Blunt: I am concerned that the Minister has been educated too long in the school of the block vote. There should be no suggestion that the judicial members of the commission will vote as a block. They will surely take decisions as individuals on the

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merit of the cases that come in front of them, and according to their work within the commission. The issue of whether the judicial members should have a majority cannot be presented in such terms. It is much more about where the balance of skills should lie on the Judicial Appointments Commission, and I believe that that balance should give a slightly greater weighting to members of the judiciary.

Mr. Browne: In the words of many of my clients when I practised criminal law, ''He started it''. I was merely trying to correct the hon. Gentleman's accidental mistake of arithmetic by pointing out that a commission that consists of 13 people, eight of whom were likely to be lawyers, could not be described as 50:50 lay members and lawyers, as he described it. Now that we are talking about the same commission, perhaps I can move on.

The other point made by the hon. Member for Reigate—I do not know whether every Committee member heard it—was that he would be interested to hear what I, as a lawyer, had to say about his arguments, because he appeared to be sticking up for the legal profession. I have never been one for jobs for the boys. As I have been an advocate of devolution all my life—particularly for Scotland, but also for any part of the United Kingdom that wants it and can improve its government with it—and as I am also an advocate of a judicial appointments commission for Scotland, it is unlikely that my transition from lawyer to Back Bencher to Minister would see me abandon that and create opportunities especially for the profession. My short experience of Northern Ireland as a Minister has shown me that there are more than enough opportunities for the legal profession there, and I do not get the sense that any member of the profession is running about looking for work.

There were four sets of amendments under clause 3, consisting of three groups and one set of one, but now there are three, because you have sensibly and logically added amendment No. 6 to this debate, Mr. Pike. The first set was tabled by the official Opposition and would restrict the involvement in the new commission. The second set was tabled by the Liberal Democrats and would put the Secretary of State back in the driving seat in the appointment of lay members, although I now understand its purpose more clearly. It tries to reflect more accurately the recommendations of the review, but we shall shortly consider whether that is a strong enough reason to support it, or whether the hon. Member for Montgomeryshire has properly interpreted the review's recommendations, which struck a careful balance. During the consultation exercise, some argued that lay involvement had gone too far, others that it did not go far enough, as my hon. Friend the Member for Newry and Armagh implied.

Mr. Mallon: So that there is no misunderstanding, may I point out that was not the implication of what I said? Obviously I did not make it clear enough that, for reasons that I tried to explain, I support the Government's position.

Mr. Browne: I apologise sincerely to my hon. Friend. Now that I have had a few more moments for reflection, I believe that he was arguing for strong

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representation instead of re-arguing the numbers. To that extent, I agree with him; he said some things that several hon. Members would have been pleased to hear, especially about his view of the value of the devolution of criminal justice and related matters to the Executive and Assembly in Northern Ireland. They are views that I, as a Minister, share—and they are shared by the majority of politicians who speak for a significant majority of the people of Northern Ireland and share their aspirations.

There is a temptation in Northern Ireland to say, ''Both sides think I haven't got it right, so I must have got it right.'' That is a dangerous argument. It is like the phrase constantly trotted out by the people in Northern Ireland who say to me, ''You must understand, Minister, that perceptions are more important than facts.'' That, too, has become dangerous in the context of Northern Ireland politics; sometimes it would help to remind ourselves that facts are more important than perceptions. If we could get back to the facts we might have a more informed debate and not run about with individual perceptions and no possibility of ever meeting on common ground. The facts would provide that common ground, if we could agree what they are.

The Bill strikes the right balance because it brings to the commission the right qualifications from the viewpoint of the judiciary and of the legal profession and also provides strong lay representation. It will bring an element to the commission's considerations different from what members of the legal profession are likely to bring, whether they are judges or practising lawyers, because it will allow contributions to be made from different perspectives. One advantage is that it will allow the issue of representativeness to be addressed in the context of the commission, which is important if the people of Northern Ireland are to have confidence in it.

Representativeness, or reflectiveness, in the membership of the commission is an exercise that the Government have tried to bring into play in other commissions and bodies in Northern Ireland. I accept that it is a difficult exercise, but it is important, and the lay element in the commission will allow the Government to undertake it. If the proposal were diluted as the hon. Member for Reigate suggests, it would make things far more difficult, if not impossible. I shall come to the other amendments in a moment.

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Prepared 29 January 2002