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Lord Smith of Clifton: My Lords, I am somewhat depressed by the denigration of the contribution of the lay element to appointments. I always listen to the noble and learned Lord, Lord Mayhew, with great respect, but we should not be seduced by his mellifluous articulation of his points. His words smack heavily, as they have done before, of those of an eloquent shop steward for the legal trade union. There is no question that the balance that we have is the right one. Undoubtedly, the lay members will listen most assiduously to what the legal and judicial representatives say. However, selecting on the basis of integrity, knowledge, independence and all the other criteria referred to by the noble and learned Lord, Lord Mayhew, is not the preserve of the legal profession. Many of us feel that we can discriminate between those who possess them and those who do not. The noble Lord, Lord Maginnis, the noble Lord, Lord Glentoran, to some extent, and, in his most mellifluous way, the noble and learned Lord, Lord Mayhew, have rather over-egged the pudding in making their point.

Lord Filkin: My Lords, the amendment would increase the number of judicial members and decrease the number of lay members on the Judicial Appointments Commission. To some extent, it is

3 Feb 2004 : Column 584

surprising to be debating this amendment because the Bill does nothing to change the composition of the Judicial Appointments Commission which this House and another place passed into legislation nearly two years ago. That was a decision that Parliament made at that point in time, and I think it was the right decision. The composition was debated at length in both Houses during the passage of the Justice (Northern Ireland) Act 2002.

The 2002 Act reflected Recommendation 78 of the Criminal Justice Review which sought to have a careful balance in terms of the commission's membership. Indeed, as I made clear in Committee, out of a total of 13 commission members, eight will have knowledge of the law, legal processes and legal systems. I sought to say that there would be eight members of a commission of 13 who would either be judicial or legal professionals. It may well have been slightly condensed in the process of transmogrification. However, the point I was making was that there were eight people who were either acting as judges or who were professional lawyers.

Furthermore, the chairman of the Judicial Appointments Commission is the Lord Chief Justice himself. He is sitting on top of this apex, bringing all of the weight of his office, experience and intelligence to its functions. In that respect, the Judicial Appointments Commission in Northern Ireland is quite different from the system currently operating in Scotland and what is proposed for England and Wales. I make no issue with that—there are good reasons for where the 2002 Act positioned it, and we think that that is right. Therefore, we are slightly at a loss about why the question is being reopened at this time, given that we have had some good debates and have sought, through Parliament, to settle the matter.

Let me turn to a number of the points that were made in the addresses to the amendment. The noble and learned Lord, Lord Mayhew, is right to bring the issue of appointment on merit before us early in our proceedings. He said that Ministers proclaimed that this was the objective. Yes, they do, but we go substantially further than that—we enshrine it in the legislation. It spells out with absolute clarity that there is only one criterion for this Judicial Appointments Commission making a decision on a judicial appointment, and that is merit. In that sense, this goes way beyond proclamation—we are enshrining it in legislation. The commission is statutorily charged to behave in that way.

Identifying which candidates have judicial skills is clearly part of the job of the commission. Judicial skills are partly about knowledge of the law and partly about knowledge of judicial processes. They also include some of the other human skills needed to manage the judicial process in ways that build the confidence of the community that justice is being fairly done. Undoubtedly the judicial members of the commission will be powerfully positioned to have their arguments on some of those skills, but lay members may make a contribution when it comes to some of the other skills as well. Lay

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members will also make a contribution in terms of looking at the selection procedures—the advertising, recruitment and attraction of people—to ensure that a rich pool of talented candidates is coming forward for consideration by the panel.

I should also mark the fact that the Judicial Appointments Commission has a second role. It does not just make short-term decisions about judicial appointment. However—I repeat this so that the noble Lord, Lord Maginnis, is in no doubt about this—its secondary role in trying to promote a more diverse judiciary is subordinate to the appointment on merit. In other words, it only does those other things subordinate to merit, not the other way round, as I think it was being interpreted.

We had a good discussion on these issues in Committee, and it seemed to me that there was a strong measure of consensus. The judiciary in Northern Ireland, no different from that in England, is not, in gender terms, representative of society broadly. Therefore the commission has to think what can be done over five, 10 or more years to ensure that people of talent in all walks of life come forward. That is its second role. It is self-evident that a commission which has on it lay people with relevant experience will be very powerful. That was what I was meant when I referred in Committee to short-changing.

On sectarianism, the Lord Chancellor appoints the lay members of the Judicial Appointments Commission in the pre-devolution situation. They will be selected in accordance with the Commission of Public Appointments code of practice. In addition to having to swear an undertaking to uphold peace and justice, they must be able to command the confidence of a broad swathe of society in Northern Ireland and, by their stature and integrity, have demonstrated their ability to contribute to decisions in a non-sectarian way. While Scotland does not have the same level of sectarianism that Northern Ireland has, tragically, had, we have already seen a Judicial Appointments Commission in Scotland chaired by a lay member making good progress on addressing some of these issues, albeit in an advisory capacity. I think confidence is developing in Scotland in that respect.

We got it right when we established the composition in 2002, and we are right now to implement some, if not all, of the Judicial Appointments Commission's functions because we need to make progress in the areas I have outlined. I very much hope that the noble Lord, Lord Glentoran, will feel minded to withdraw his amendment.

Lord Glentoran: My Lords, I thank the Minister for his lengthy explanation. However, I do not really understand why the Government are sticking to their guns so strongly on this and they probably do not understand why I am sticking to mine. Neither the Criminal Justice Review—see paragraph 6.103—nor the implementation plan—see page 44—called for a majority of lay over judicial members.

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I would be very satisfied if the Government would undertake that the casting vote was left with the Lord Chief Justice, but I feel that in the Province that I know and have lived in for many years, the climate is not right to have a commission to appoint the judiciary made up with a majority of non-judicial persons. I should like to test the opinion of the House.

4.58 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 115; Not-Contents, 156.

Division No. 1

CONTENTS

Anelay of St Johns, B.
Arran, E.
Ashcroft, L.
Astor of Hever, L.
Attlee, E.
Biffen, L.
Blaker, L.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chadlington, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Crickhowell, L.
Dixon-Smith, L.
Eccles of Moulton, B.
Elton, L.
Erroll, E.
Ferrers, E.
Forsyth of Drumlean, L.
Fowler, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glenarthur, L.
Glentoran, L.
Goschen, V.
Gray of Contin, L.
Hanham, B.
Hayhoe, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkham, L.
Knight of Collingtree, B.
Laird, L.
Lindsay, E.
Listowel, E.
Liverpool, E.
Luke, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Mancroft, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Murton of Lindisfarne, L.
Naseby, L.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Patten, L.
Peyton of Yeovil, L.
Pilkington of Oxenford, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rees, L.
Renfrew of Kaimsthorn, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selborne, E.
Shaw of Northstead, L.
Sheppard of Didgemere, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Stevens of Ludgate, L.
Stewartby, L.
Strange, B.
Swinfen, L.
Tebbit, L.
Thatcher, B.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Vinson, L.
Waddington, L.
Wakeham, L.
Walpole, L.
Wilcox, B.

NOT-CONTENTS

Acton, L.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Barnett, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bradshaw, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carlile of Berriew, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fearn, L.
Filkin, L.
Finlay of Llandaff, B.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Gregson, L.
Grocott, L. [Teller]
Harris of Richmond, B.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hooson, L.
Howarth of Breckland, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jeger, B.
Jones, L.
Judd, L.
King of West Bromwich, L.
Lester of Herne Hill, L.
Levy, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
McNally, L.
Mallalieu, B.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morris of Manchester, L.
Newby, L.
Nicol, B.
Parekh, L.
Pendry, L.
Peston, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Sainsbury of Turville, L.
Sandberg, L.
Sawyer, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Steel of Aikwood, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Thornton, B.
Tordoff, L.
Triesman, L.
Turner of Camden, B.
Walmsley, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Richmond, L.
Whitaker, B.
Whitty, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Winston, L.

Resolved in the negative, and amendment disagreed to accordingly.

3 Feb 2004 : Column 588

5.9 p.m.

[Amendment No. 3 not moved.]


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