| Justice (Northern Ireland) Bill [Lords]
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Mr. Spellar: For a considerable period in the history of this country, all judges were male. Does the hon. Gentleman think that changes in society should not be reflected in the judiciary? Mr. Hunter: Changes in society are reflected, as all institutions evolve over time. My objection is to the imposition of change through legislation. No further legislation is needed because of the balance that already exists in the Northern Ireland judiciary. Of course, as society changes over time, all institutions will reflect that. My quarrel is with legislation imposing a requirement for change. Having addressed that point, I shall make a final observation to the Minister. Although I do not expect it to happen, it is imperative that the Government reconsider and reflect on the provisions contained in lines 24 to 38 of clause 3. We certainly support a system of transparent, open and fair judicial appointment that is free from political motivation and politicisation, but I do not believe that such objectives can be achieved unless those lines are withdrawn from the Bill. Mr. Grieve: I want to concentrate on amendments Nos. 12, 56 and 13, but before doing so, it is perhaps worth passing comment on the points made by the hon. Member for Basingstoke (Mr. Hunter), some of which are extremely valid. We have embarked in Northern Ireland on the process of institutionalising equality in order to achieve a non-sectarian society. That is undoubtedly difficult to achieve in practice and may have undesirable side effects. We need consider only one example. The pool of talent from which the judiciary can be recruited is not, and cannot be, reflective of society, any more than doctors or any other group can be. As is the usual tendency with Northern Ireland legislation—indeed with all legislation—we do not want to grapple with the issue, which is the creation of a judiciary with no sectarian bias by upbringing or inclination. It ought to be possible to appoint people to discharge judges' functions properly, irrespective of their sectarian background. That is the aim, but as Column Number: 042 usual the legislation fudges it in what can only be described as politically correct terminology. We are likely to continue to do that. I reluctantly accept that there has been a lot of pressure behind this amendment to spell out what should be the ultimate state of the judiciary. The clause has the saving grace of the words
which go some way to drawing the sting from what is otherwise a very unsatisfactory proposal. However, that is not to say that clause 3 cannot be improved. Mr. Andrew Robathan (Blaby) (Con): Before my hon. Friend continues, is it not the case, whether one likes it or not, that because of this Government's policies, the two largest parties are now Sinn Fein, which does not accept the authority of this Parliament and whose members do not take their place in it, and the DUP—among whose members I have many friends—which is considered to be on the more extreme wing of Unionism? In order to reflect society, will the majority of members of the judiciary have to be supporters of the DUP or Sinn Fein? Is that the logical consequence? Mr. Grieve: As the wording is illogical, I do not think that that will be the logical consequence, thank goodness. The consequence will be that a group of people sitting in a room making appointments will look at a person's background and say, ''Is he Catholic or Protestant? Will we end up with a judiciary that appears to be largely Protestant or largely Catholic?'' That will influence their decision on who is appointed next. If the saving provision, which contains the words
is properly applied, it should ensure that thoroughly competent judges are appointed. On the other hand, it will also mean that at times an extremely competent person, who should be appointed, is not appointed when he might have expected to be, and that someone who is about as competent, or at least over the threshold of competence, is preferred to him because at the time it looks better on the balance sheet of Protestant and Catholic judges. It will also have a contributory effect in that someone who is neither Protestant nor Catholic will be appointed on the basis that it adds an extra dimension and suggests that the system is working well. That is the reality of the proposition. Dr. Nick Palmer (Broxtowe) (Lab): As the hon. Gentleman says, the issue reaches beyond Northern Ireland. We also discussed whether women felt represented by a largely male Parliament. In the world that the hon. Gentleman would like to see, would appointments be made only on the basis of competence? Is he is opposed in principle to people recognising people like themselves in the judiciary? Mr. Grieve: My position is clear, which will be apparent when we debate the Constitutional Reform Bill, should it reach this House in its present form. Appointments to the judiciary should be made solely on the basis of merit. However, it is desirable in any society to ensure that all those who have merit can obtain advancement, which means that women, Catholics, people of different sexual orientation— Column Number: 043 Mr. Robathan: Socialists? Mr. Grieve: Indeed, and people with different political views; they should all be appointed as long as they are prepared to subordinate their views to their practice as a judge. Of course, if one notices that a group within the judiciary comes from a very narrow base, it is proper to consider why that situation has come about; it may be for one of a number of reasons. However, I would not depart from the centrality of the issue of merit, because as soon as we start to tinker with it to obtain another outcome, there are likely to be undesirable results. Mr. Tony Clarke (Northampton, South) (Lab): Given his defence of the status quo, will the hon. Gentleman tell me why he believes that the majority of the judiciary to date come from one faith? Mr. Grieve: We must be a bit careful here. I do not have the statistics at my fingertips, but I said at this morning's sitting—the right hon. Member for Upper Bann nodded in agreement—that the High Court of Northern Ireland had a majority of Roman Catholic judges. That is a matter of delight, and irrelevance, to me, because it should not influence or be relevant to the discharge of their functions. Mr. Trimble: I apologise for interrupting the hon. Gentleman's flow, but he made that comment earlier, interpreting my nod in a way that was not intended. I am not fully au fait with the position with regard to the community background of the Northern Ireland judiciary. My understanding is that of the four judges in the Court of Appeal and above—the three Lord Justices and the Lord Chief Justice—three are from a Catholic background. I do not know the position with regard to puisne judges. I am afraid that the hon. Gentleman interpreted my nod as indicating that the majority of High Court judges had a Catholic background, but it is the majority of those superior to High Court judges. I have no idea about the position among puisne judges, and I caution people against making assumptions. Mr. Grieve: I am grateful to the right hon. Gentleman for correcting me, as I had misinterpreted him. I have not yet had to carry out a study into the religious affiliation of judges in Northern Ireland, so what he says may be correct. We know that one reason for the imbalance is historical. That is not a reason for not addressing it, but we should consider the state of the judiciary in England and Wales. It was said earlier that there was an insufficiency of women judges, and there are certainly far fewer female judges than male, but we have only to look at the statistics on entrants to the Bar to see that a continuing shift towards more women judges is likely simply because the pool of entrants has changed so dramatically compared with, for instance, when I started my career as a barrister. The same applies to ethnic minorities in England. Currently, about 18 per cent. of entrants to the Bar are from an ethnic minority, which is considerably higher than the percentage in the population at large, and we are likely to see change come about when those people become eligible for judicial appointment. That all Column Number: 044 shows that evolutionary change can take place without statutory manipulation.Mr. Spellar: The hon. Gentleman has come to the nub of the point. As we are seeing a change in the pool from which appointments are made, do we not expect that change to be reflected in those appointments? We would be surprised if the appointments were not reflective, so it is legitimate to build in a duty for them to be so. That is why we use the term ''reflective'' rather than providing for a representative quota. We are not tying the number to a mathematical formula, but looking at trends and how they will be reflected. By encoding that, we are trying to ensure that a process that could and should happen actually does happen. Mr. Grieve: The Minister makes a valid point. However, it could equally be argued that if the facts are as the Minister has stated—and I agree with them—there is no need to encode anything and that the change will happen of itself because the proper frameworks have been set up through the Judicial Appointments Commission. This is undoubtedly an important issue, and I want to do justice to the contribution made by the hon. Member for Basingstoke. However, I do not want to get bogged down, so I shall turn to my amendments. I will not seek today to get rid of the whole clause, but I want the Minister to focus on our amendments. They concern what constitutes a programme of action. If the programme of action is to be along the lines that the Minister has identified, it will not be one in which a group of people sit round a table and ask how many members of each religious group are present in the judiciary and how they can ensure that in six months they have made the necessary adjustments. The programme must also aim to ensure that people apply.
3 pmWe tabled amendment No. 12 to insert the word ''continuous'' to make it clear that the programme of action is a long-term project rather than a short-term fix. The anxiety has always been that the provision would lead to short-term fixes to produce the numerical adjustments that might appear desirable. I should be interested in the Minister's comments on that. I think that the word ''continuous'' adds something to the clause and might go some way to confound the suspicions of those who think that the provision will simply lead to a rigging, whereby talent and merit come second and political correctness comes first. Amendment No. 13 concerns submitting an annual report to the Lord Chancellor about the programme of action. Again I hope that the Minister will accept our proposal, as it is desirable that the House should be kept informed of what is going on. First, it would enable us to applaud progress. Secondly, it would enable us to consider whether there were any problems with what is not an uncontroversial scheme. I hope that the Government will look favourably on the amendment.
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