Justice (Northern Ireland) Bill

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Lady Hermon: May I seek a clarification? I know that the Minister is happy that he is not one of the ''jobs for the boys'' brigade—I am pleased about that. Of the judicial number, how many women or members of ethnic minorities in Northern Ireland are Lord Justices of Appeal, High Court judges, county court judges, district judges or lay magistrates?

Mr. Browne: The hon. Lady makes my point about representativeness. To my knowledge, there are none. It is clearly part of the purpose of the new procedure for the appointment of judges to allow people from those backgrounds and those parts of the community to apply under a transparent appointments process that allows them to reach those positions. I know that

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the hon. Lady shares with me the objective that at some time in the future I, or someone else, will be able to answer that question for her—indeed, in devolved terms she herself may be able to answer it for others—in a positive way that shows progress. It is the Government's intention that the judicial appointments process will help that objective.

Mr. Garnier: May I return to lay membership? The exclusion of barristers and solicitors is inexplicit; the Bill does not tell us where the barristers and solicitors are qualified. Am I right in assuming that it refers only to Northern Ireland barristers and solicitors, or does it also exclude those who qualified as barristers in Australia but who are no longer practising and happen to be resident in Northern Ireland? I will not go through the whole Commonwealth jurisdiction, but it is not unheard of for people to move around the world having qualified in a profession in one place and not to continue in that position elsewhere.

I have a suspicion that many people in Northern Ireland who do not practise will be disappointed: simply because they qualified in Wellington or Jamaica—

Mr. Browne: Or Zimbabwe.

Mr. Garnier:—or Zimbabwe, they will be unable to assist in the process.

Mr. Browne: The hon. and learned Gentleman knows that I do not like to disappoint people, but my reading of the provision suggests that unfortunately, it does apply to all those peripatetic non-practising lawyers who congregate in Northern Ireland awaiting jobs at the Judicial Appointments Commission. I am terribly sorry if they were misled into taking up residence in Northern Ireland in the hope of being engaged in this process.

The hon. and learned Gentleman makes a serious point by and large, but he will have to accept from me that as the Bar and the solicitors' branch of the legal profession are explicitly represented, the exclusion of their accidental representation through the lay members' door is intentional. No matter what abilities people trained in Wellington may bring to their subject, the purpose of excluding them is not to stop people making a contribution to a debate to which they could contribute, but to make room for another voice and allow lay members in.

There is no doubt that the Committee has come up with a fairly long list of people who we think could make a contribution to the debate, but in doing that we would have come up with an unmanageable commission. At some stage someone has to draw a line, from experience, as to how a commission can be chaired, operating within sub-committees or however it needs to operate, within a reasonable period of time and reach conclusions. The figure that we have chosen, which was recommended advisedly, though not exclusively, by the review, is reasonable. The breakdown was reasonable because it provided opportunities for everything that I have been speaking of.

Mr. Garnier: May I explain something? [Interruption.] I bow to no man in permitting the

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Minister to take the mickey out of me, and I enjoy it—as a Tory Member of Parliament I have had to get used to it. The law that this House passes more than any other is that of the unintended consequence. I wanted the Minister to be clear, because the word ''barrister'' is limited to certain jurisdictions. One could be a Ukrainian court lawyer, but one would not be a barrister. I have made the point, and I do not want to go over it again, but it is not such a futile one.

Mr. Browne: I accept that the hon. and learned Gentleman was making a serious point, and I did not wish to belittle it. However, these consequences are not unintended. They are designed to ensure that there is proper representation of judges and other branches of the legal profession, but also proper representation of the lay population of Northern Ireland.

6.30 pm

Mr. Blunt: In my trawl of the documents and the review that informed this part of the Bill, I have been unable to find a recommendation requiring the non-qualification of lay members. Besides the Minister's judgment that that should be on the face of the Bill, has any other college of opinion come to that conclusion?

Mr. Browne: Significant parts of the Bill, as the hon. Gentleman will doubtless point out as we go along, are not direct reflections of the review. The interpretation of the recommendations of the review have been true and faithful. There is no specific recommendation for the non-qualification provision, if we can describe it that way, but it seems to be a natural consequence of seeking to protect the lay representation on the Judicial Appointments Commission from incursion by the legal profession, who are already well represented. There may be unintended consequences of that, and they will doubtless be the subject of a judicial review at some stage in Northern Ireland.

Amendments Nos. 2, 3, 4 and 5, as the hon. Member for Montgomeryshire said, all seek to amend the membership of the commission in favour of the judiciary and the legal professions. They would increase the number of judicial members and decrease the lay membership, and as if that were not enough, they also seek to open the lay membership to solicitors, barristers and former judges, although not former solicitors and barristers. I may be wrong about that latter point, but the amendments would be even worse if they also applied to former solicitors and barristers. Under the hon. Gentleman's proposals there could be a commission without a single member who was not or had not been a lawyer. In amendment No. 9, which we are not debating yet, the Opposition abandon the idea that any attempt should be made to get a reasonable representation of lay members.

I have made it clear that I believe that it was right for the review to identify the useful contribution that lay members could make to the appointments process. Hon. Members will be aware that a similar process is under way in Scotland. If my understanding of what is happening there is correct, the commission there will have a stronger lay membership and a lay chairperson. In the Bill, we are not even going as far as they have in

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Scotland, which—the hon. Gentleman should remember—is also part of the United Kingdom. Lay members will bring an objective non-legal view to a difficult process, which will be valuable. Their involvement is important for public confidence, and I urge the hon. Gentleman to withdraw his amendment.

Amendments Nos. 140, 141, 142, 146 and 149 would make the Secretary of State, rather than the First and Deputy First Minister, responsible for the appointment and removal of lay members of the Judicial Appointments Commission. Before I heard the hon. Member for Montgomeryshire, I was not clear what the amendments were driving at. I wondered why he wanted to retain the Secretary of State's role in judicial appointments after devolution, and I thought perhaps that he wanted the provisions to commence straight away. I understand what he is saying now, and as a consequence, I had to refresh my memory about the debate during the review.

Paragraph 6.104 states that it is important to keep any hint of political input out of the appointment process, but that does not mean that there is no role for the First Minister and the Deputy First Minister. They have been given a clear role in the other stages of the appointments process, and recommendation 80, which is about the shape of the lay membership of the Judicial Appointments Commission, states:

    The First Minister and Deputy First Minister would appoint the nominees of the Lord Chief Justice and the professions and would secure the appointment of lay members through procedures in accordance with the guidelines for public appointments (the Nolan procedures).

That is exactly what the provisions do. They have the added benefit of creating the set of circumstances that other hon. Members have spoken of, which allow a strong lay voice, and allow the First Minister and the Deputy First Minister to meet the challenges suggested by other hon. Members. I think particularly of the comments of my hon. Friend the Member for Newry and Armagh.

Lady Hermon: I am sorry to interrupt again, but I would like to clarify one crucial point. What if the First Minister and Deputy First Minister cannot agree on an appointment? One or the other may end up with a veto over the appointments of the lay members.

Mr. Browne: I am grateful to the hon. Lady for that contribution. Our stock answer would be that we are not planning for failure—but that is about as sensible as assuming that I must be right if both sides think that I am wrong. Under devolution, cross-community voting and the operation of the Office of the First Minister and Deputy First Minister rely substantially on co-operative working between those two important members of the Executive. At least one member of the Committee could share his experience of the tensions with us, but I will not invite him to do that.

We all know that there are tensions in Northern Ireland society. We could not ask those office holders to carry out the job, among the many that we have asked them to carry out under the Northern Ireland Act 1998, without giving them the backstop of planning for failure. That does not seem any more challenging than many of the things that we have asked them to do. We must trust devolution, trust the

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structure and trust whoever is in those positions to understand and operate it with a view to complying with statutory requirements rather than failing.

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