Justice (Northern Ireland) Bill

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Lady Hermon: I thank the hon. Member for Newry and Armagh and the Minister for their helpful contributions. Nothing that I said was intended as a criticism of lay members and their valuable contribution in many walks of life in Northern Ireland.

Clause 50(4)(d) excludes people who have held judicial office or been barristers, solicitors or teachers of law in a university, and the purpose of the amendment is to prevent the exclusion of such people. I do not like the idea of excluding people who may have a contribution to make, but I have taken the Minister's explanation on board, as well as the points made by the hon. Member for Newry and Armagh. I beg to ask leave to withdraw the amendment, although I shall not give in so easily on the next one.

Amendment, by leave, withdrawn.

Lady Hermon: I beg to move amendment No. 242 in page 29, line 13, after 'representative', insert—

    ', including in terms of gender and ethnicity,'.

The amendment concerns clause 50 (6), which states:

    In appointing persons to be Commissioners, the Secretary of State must so far as possible secure that the Commissioners (taken together) are representative of the community in Northern Ireland.

If members of the Committee reflect on last week's discussions, they may remember that that phrase occurred when we examined the appointment of lay members by the First Minister and the Deputy First Minister. When the phrase arose it was not amended, which concerns me. I want it added to the Bill that the term ''representative'' means

    in terms of gender and ethnicity.

When I last mentioned the phrase ''representative of the community'', I specifically drew the Committee's attention to the Evelyn White case. The Lord Chief Justice, who is the most senior judge in Northern Ireland, made that decision, which concerned the meaning of the phrase ''representative of the community''. That phrase appeared in the Public Processions (Northern Ireland) Act 1998, which governs the Parades Commission. Currently there is not a single woman on the Parades Commission, although I am prepared to stand corrected. That is despite the fact—the judge referred to this in his judgment—that the background report, which is a little like the criminal justice review on which the Bill is based, was founded on the North report, which states:

    The Parades Commission would need to have a geographical spread and both cross-community and gender balance. We were struck, on several occasions during our meetings, with the different approaches of men and women to the parading issue. We think that is important that women should have an effective voice on the Parades Commission.

When the phrase ''representative of the community'' in the 1998 legislation was interpreted in the Evelyn White case, the judge took the phrase in

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its context as against the regular usage of the word ''community''. He ruled:

    The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to 'the community', which in the context of parades is constantly used to denote sectarian blocks.

Mr. Browne: I intervene on the hon. Lady at this point, because I am aware of the care that she takes in interpreting such phrases. For the benefit of the Committee, she should read that last sentence again. The important words are ''the context'', because the context of this Bill is entirely different.

Lady Hermon: I thank the Minister. I shall quote again:

    The phrase in question does not refer to gender or to the make-up of the population of the Province. It refers specifically to ''the community'', which in the context of parades is constantly used to denote the different sectarian blocks.

It continues:

    In the context of the 1998 Act, therefore, it is in my view a tenable proposition—

a submission from one of the lawyers is then referred to—

    that paragraph 2(3) imposes a requirement only to ensure sectarian balance in the composition of the Commission.

The judge rightly considered the context of the 1998 legislation. The words ''gender'' and ''geographical background'' do not appear in that Act, so the term ''community'' could be interpreted as meaning the sectarian divide. That is particularly relevant when we have marches.

I certainly do not criticise the judge for considering the context in which the phrase ''representative of the community'' was used in the 1998 Act. I suggest that when any judge is interpreting this Bill, he or she should do likewise and take its context into account. When we earlier considered how the phrase related to lay members of the Judicial Appointments Commission, we did not set a context that related to ethnic minority or to gender. To ensure that ''representative'' includes women and ethnic minorities in Northern Ireland, I would like the context to be included in the Bill. That would be in keeping with the judgment, and would not be a criticism of Lord Justice Carswell, or his interpretation of the legislation.

Mr. Garnier: That was a decision by Lord Justice Carswell, so I wonder whether the hon. Lady could answer some questions about it. Was he sitting as a judge of first instance or in the Court of Appeal? Was the construction of the expression ''community'' the sole issue to be decided by the judge? Is not the decision special to the facts, and that construing the expression in the Bill would not necessarily be of any use? Given the judgment, what must have followed since, and the fact that criticism has already been made of the expression in another circumstance, is it necessary to add those words to the Bill?

The Chairman: Order. This is a little too long for an intervention. Perhaps the hon. Gentleman wishes to make a speech.

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Mr. Garnier: I do not think that the Committee would like me to make a speech. I will come to the last sub-clause of my point.

Would not the appointers of persons to be commissioners bear in mind the hon. Lady's points and those of the Lord Justice when interpreting their duty to ensure that appointments are representative of the Northern Ireland community?

Lady Hermon: I almost regret that I gave way.

The Chairman: I am regretting that I gave the hon. Lady the chance to give way.

Lady Hermon: I forgive you, Mr. Pike. The hon. Gentleman brings numerous points to my attention. First, I am willing to give him my copy of the judgment to read. In the interim, I can tell him that it was a decision in the High Court of Northern Ireland, Queen's Bench division. The interpretation of the phrase ''representative of the community'' in paragraph (2)(3) of schedule 1 of the Public Processions (Northern Ireland) Act 1998 is important. The context was different in that legislation, but it was included. We must take the opportunity to set the context in the Bill, by including the important phrase ''representative of the community''.

3.30 pm

Mr. Mallon: I welcome the amendment. I am glad to hear that the hon. Lady is adamant that she will press it to a vote; I shall vote with her.

The amendment highlights the question of representation that has been there since the beginning and will remain until it is dealt with. The amendment would require the layperson—one of the four members—to be representative of the community's ethnicity and gender composition. The layperson might wonder why that does not apply to the appointment of a barrister, solicitor or an academic.

Mr. Browne rose—

Mr. Mallon: One should never ask rhetorical questions.

Mr. Browne: The answer to my hon. Friend's question is that the requirement for the commission to be representative applies to all the commissioners.

Mr. Mallon: I thank the Minister for that observation. We have debated the issue before. Unless we pass an amendment that applies the requirements of representation of in an equal way, the equality that we seek will be left out of the Bill. I am sure that the Minister is right, and I have not found him to be wrong yet. However, one might make the following thumbnail sketch: the barrister might be a Unionist, the solicitor a nationalist—for want of a better word—the academic from an ethnic minority, and the layperson might make up the gender balance. If the Minister is correct, that is the formula. Once one tries to subdivide that, one enters a quagmire. That points out the previous and current difficulty. I voted for a similar amendment previously and will do so now. It is assumed that the provision does not refer to the appointment of those in the legal profession, but

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that it applies to laypersons. That is the weakness. I am glad that the hon. Lady has tabled the amendment, and that we have an opportunity to stress that point. Will the Minister clarify how the requirement for representation is assumed in the manner that he outlines, and how it is effective?

Lembit Öpik (Montgomeryshire): This is one occasion when it is incumbent on the Government to explain why they would not accept a proposition that has been so forcefully argued by the hon. Members for North Down and for Newry and Armagh. We have spoken about the wording in earlier debates in Committee. It is simply not acceptable for the Minister to say that gender and ethnicity are de facto included, not least because, as the hon. Lady has shown, ''representative'' means something different in the context of the Good Friday agreement.

Any person involved in debates in this House on Northern Ireland would assume that the word ''representative'' referred to matters of religion and whether a person comes from a nationalist or Unionist tradition. I have made the point before that we risk enshrining the sectarianism that we are trying to get rid of by not addressing this kind of issue with amendments such as that tabled by the hon. Lady.

The Alliance party of Northern Ireland famously took the courageous decision to redefine itself temporarily as a sectarian faction to enable the First Minister, the right hon. Member for Upper Bann (Mr. Trimble), to be re-elected. That was an extremely difficult decision for the Alliance party, but we end up in such quagmires because we do not think about those who choose not to categorise themselves as Unionist or loyalist, nationalist or republican.

The challenge for the Minister is to explain why he thinks that, given all the precedents for the definition of ''representative'', we should feel confident that in five, 15 or 20 years we will remember this debate, and that all those responsible for implementing the Bill will bear our short discussion in mind and ensure that gender and ethnicity factors are included.

I should declare an interest. As hon. Members know, I have Estonian roots. I am realistic enough not to hold my breath and expect the amendment to require an Estonian always to be appointed. However, there are other, larger communities in Northern Ireland and other sections of the community who are perfectly entitled to be cynical about the prospect that the word ''representative'' will, on its own, create any ethnic or gender balance, given what has gone before.

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