Justice (Northern Ireland) Bill

Public Bill Committee, 29 January 2002.

Standing Committee F

Justice (Northern Ireland) Bill

Derek Conway (Conservative, Old Bexley and Sidcup)

Before I call the Minister, I have two housekeeping points to make. First, because the clock is not accurate we shall have to rely on the House of Commons Annunciator screen for timing. Secondly, it will be acceptable for those hon. Members who wish to remove their jackets to do so, as this Room seems to get rather hot from time to time.

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move,

That —

(1) during proceedings on the Justice (Northern Ireland) Bill the Standing Committee do meet on Tuesdays at half-past Ten o'clock and at half-past Four o'clock and on Thursdays at half-past Nine o'clock and at half-past Two o'clock;

(2) the proceedings shall be taken in the following order, namely Clauses 1 and 2, Schedule 1, Clause 3, Schedule 2, Clauses 4 and 5, Schedule 3, Clauses 6 to 11, Schedule 4, Clauses 12 and 13, Schedule 5, Clauses 14 to 20, Schedule 6, Clauses 21 and 22, New Clauses and New Schedules relating to Part 1, Clauses 23 to 29, Schedule 7, Clauses 30 to 44, New Clauses and New Schedules relating to Part 2, Clause 45, Schedule 8, Clauses 46 to 50, Schedule 9, Clauses 51 and 52, New Clauses and New Schedules relating to Part 3, Clauses 53 to 62, Schedule 10, Clause 63, Schedule 11, Clauses 64 and 65, New Clauses and New Schedules relating to Part 4, Clauses 66 to 80, New Clauses and New Schedules relating to Part 5, Clauses 81 to 83, Schedule 12, Clause 84, Schedule 13, Clauses 85 to 91 and remaining New Clauses and New Schedules;

(3) the proceedings on Clauses 1 and 2, Schedule 1, Clause 3, Schedule 2, Clauses 4 and 5, Schedule 3, Clauses 6 to 11, Schedule 4, Clauses 12 and 13, Schedule 5, Clauses 14 to 20, Schedule 6, Clauses 21 and 22 and New Clauses and New Schedules relating to Part 1 (so far as not previously concluded) shall be brought to a conclusion at 11.25 a.m on Thursday 31st January 2002;

(4) the proceedings on Clauses 23 to 29, Schedule 7, Clauses 30 to 44 and New Clauses and New Schedules relating to Part 2 (so far as not previously concluded) shall be brought to a conclusion at 7 p.m. on Tuesday 31st February 2002;

(5) the proceedings on Clause 45, Schedule 8, Clauses 46 to 50, Schedule 9, Clauses 51 and 52, New Clauses and New Schedules relating to Part 3, Clauses 53 to 62, Schedule 10, Clause 63, Schedule 11, Clauses 64 and 65 and New Clauses and New Schedules relating to Part 4 (so far as not previously concluded) shall be brought to a conclusion at 1 p.m. on Tuesday 12th February 2002;

(6) the remaining proceedings on the Bill (so. far as not previously concluded) shall be brought to a conclusion at 5 p.m. on Thursday 14th February 2002.

My first task is to ask the Committee to approve the Programming Sub-Committee's resolution. Copies of the resolution have been distributed to all members of the Committee.

Before proceeding to that task, however, I take this opportunity to welcome you, Mr. Conway, to our proceedings. The members of the Programming Sub-Committee had the pleasure earlier this morning of sitting under the chairmanship of your co-Chairman, Mr. Pike, who informed us that it is intended that you will chair the morning sittings and that he will chair the afternoon sittings. I have not previously had the pleasure of being a member of a Committee chaired by you, Mr. Conway, but I welcome you in the knowledge that you have a reputation for being fair and knowledgeable. I undertake, as far as I am able, to keep myself well and truly in order, and I hope not to trouble you too much.

The programme motion provides for the proceedings of the Committee to take place over three weeks, with four sittings each week. The Government's initial estimate, before the recent consultation, was that the Committee would require between 12 and 16 sittings. However, in the light of the considerable pressures on the legislative programme and as a consequence of the consultation, we are content to proceed on the basis set out in the programming motion. We accept that an appropriate balance has been struck.

The motion also sets out the time available for consideration of the various parts of the Bill. It is important that the Committee has adequate time to consider the important matters contained in the latter parts of the Bill, such as the provisions on youth conferencing and community safety. It would be in no one's interest to allow proceedings to become bogged down on earlier provisions at the expense of the other equally important issues later in the Bill, which is why the time has been divided as it has.

Crispin Blunt (Conservative, Reigate)

I have been reflecting on the Minister's remarks about the legislative programme and the need for haste in our proceedings. Will he go into a little more detail on what he is driving at?

Des Browne (Labour, Kilmarnock and Loudoun)

I would have thought that the hon. Gentleman has some understanding of what is meant by the phrase ''legislative programme'' in the context of this place. What is driving me, as the Minister responsible for the Bill, is a desire to put in place the legislative framework necessary to start practical work on changing the criminal justice system in Northern Ireland. There is a commitment that, when appropriate after the 2003 Assembly elections in Northern Ireland, the Government will carry out their intention of devolving responsibility for criminal justice to the Assembly and the Executive. All parties represented in the House, and certainly in the Committee, with one possible exception, share that commitment.

In my discussions with colleagues in the House and with local politicians, there is a clear understanding that certain legislative provisions must be in place as soon as possible, certainly in this Session, if that objective is to be achieved and certain changes are to take place. As was made clear in the implementation plan that accompanied the draft Bill, other review

provisions and recommendations that do not require legislative change have also to be put in place, and we are making progress on those. That is what I mean by the legislative programme so far as it relates to the Bill.

It is worth reminding hon. Members of the extent of the consultation that has already taken place on the criminal justice review, which contains the genesis of most of the provisions of the Bill. The review group undertook an extensive consultation process before producing its conclusions. After its report was published in March 2000, the Government undertook six months of consultation.

The Government have also given the official Opposition extensive access to officials so that the draft Bill could be explained. We have offered such access to all other parties. In my experience—it cannot be contradicted or gainsaid—the amount of access to officials that the official Opposition have had on the Bill is unprecedented.

The most recent consultation period on the draft Bill and implementation plan, which concluded earlier this month, was the third occasion on which people had the opportunity to contribute their views on the review provisions. Nothing in the substance of the Bill should have been a surprise, and I suspect that nothing was. Few new issues, if any, have arisen in the latest consultation process. The periods of consultation to which the review and the Bill have been subject have resulted in a narrow focus on issues of contention. Other issues that affect the Bill require to be examined appropriately in Committee, but the Government think that there is more than enough time to do so.

There is no question that we are inhibiting Parliament's ability to contribute to the Bill. In the history of this Parliament, no legislation has received contributions to the same extent as the Bill. We have made it clear that we would be happy to consider taking any constructive amendments on board in Committee or at any other stage of the parliamentary process. Even the timetabling of the Bill will be kept under review, and we will be happy to discuss with representatives of the other parties in Committee as progress is made.

Crispin Blunt (Conservative, Reigate)

I beg to move, as an amendment to the motion, to leave out paragraphs (3), (4) and (5).

I join the Minister in welcoming you to the Chair, Mr. Conway. Like him, it is the first time that I have served under your chairmanship. Given your reputation and the duties placed on you in your occupation of the Chair, I am sure that you will be fair to all members of the Committee.

Members of the Committee should not be entirely surprised that they did not have the opportunity to examine the programme motion before our sitting. Members of the Programming Sub-Committee did not receive it until we arrived to consider the matter at 8.30 this morning. There has been a regrettable failure to notify the Opposition parties of the Government's intentions in this regard, which would have enabled us to agree on the programme. However, I am afraid that that sort of behaviour is consistent with the Government's wider attitude towards the programming of Committees, and I regret that.

The Minister said that the way in which the Bill has been considered is unique. I agree that the wider consultation process from which the Bill has emerged was a model. I should like to record my thanks to the Minister for his offer to the Opposition parties to consult with civil servants. We were pleased to be able to take up that opportunity. I should also like to record my gratitude to those civil servants for the time that they dedicated to this necessarily complicated legislation. Those of us who are not lawyers very much appreciated their expertise.

However, we should put in context the programme motion and the consultation process as a whole. The early parts of the process were a model—the review was set up on 27 June 1998 and reported just under two years later in March 2000. That review properly took a long time to confirm details, gather evidence and examine experiences around the world before coming forward with proposals for the Northern Ireland justice system. The Government considered the results of the review, and gave themselves more than 18 months before publishing the draft Bill and its implementation plan on 12 November last year. By comparison, the opportunities for parliamentary consideration have been somewhat telescoped. The Northern Ireland Assembly has come to the same conclusion. In the Ad Hoc Committee's report on the criminal justice review, it states that the Government was in violation of the Cabinet Office's guidelines on the consultation process. Its first recommendation, unanimously agreed by all the parties in the Assembly, is that the Northern Ireland Office should observe and comply with the Cabinet Office code of practice on written consultations when planning future written consultations.

Des Browne (Labour, Kilmarnock and Loudoun)

This issue may not be the most important that the Committee will face, so I do not want to take up too much time. However, it is important to put the record straight regarding the length of consultation on the draft Bill. I, too, have read not just the recommendations of the Assembly's Ad Hoc Committee but the whole report, including all the submissions that were made to it. It is clear that the Committee and those who gave evidence to it wanted an extra four weeks beyond the consultation period that was announced when the Bill was published. As Minister, I acceded to that request during the consultation period and extended it by four weeks, precisely as requested.

Crispin Blunt (Conservative, Reigate)

I acknowledge that the Minister generously extended the period by four weeks, over the Christmas period. As he says, that is a matter of record. The Assembly's conclusion seems to be that it would have preferred the Government to abide by Cabinet Office guidelines and allow at least three months for the process to take place. The Minister should recognise--as should the Committee in considering the programme motion--that the process of deliberation, having started in a thoroughly welcome fashion, has been telescoped now that parliamentarians are considering the proposals—first the Northern Ireland Assembly's Ad Hoc Committee

and now this House of Commons Committee. The programme motion approved by the House, which sets a deadline of 14 February 2002 for the conclusion of our proceedings, is objectionable and regrettable, given the way in which the Government embarked on this process. It is wholly unnecessary to engage the ire of Opposition parties in this way, given that the Government were following a model process until legislators started to become involved.

It is no excuse to say that because extensive consultation has taken place, there is no need for members of the House of Commons and members of the Assembly—those tiresome politicians—to animadvert on these matters. The Government's argument is that they have listened to lots of other people, apart from politicians, and that although politicians enjoy a democratic mandate, that does not matter because those other people are much more important than elected politicians. That principle is objectionable, and the reason why we have such concern about the programme motion.

I was grateful for the Minister's reply to my intervention about the legislative programme, which is the driver of this motion. I thought that the Government had some practical problem in that the Bill had to go to the House of Lords in time for their Lordships to give it proper consideration, but that does not seem to be the case. The Minister is working to the deadline of May 2003, when the Assembly elections will take place. This parliamentary Session will come to an end in October this year, and I had anticipated that by that time the Bill would become law. The Minister may have a problem if it is not law by then, but we are all formally working to that deadline, which meets his need to get the legislation on to the statute book. Therefore, there is no need to race the Bill through without giving it proper consideration in both Houses.

That brings me to the detail of the programme motion. It is objectionable enough for the Government to set a deadline of 14 February. We accept the Government's assurances that they will permit extra time for the Committee stage, should it prove necessary, although that is dependent on the Government's judgment about the Opposition's good behaviour in the proceedings. However, given the powers that the Government have given themselves under the Standing Orders of the House, they know that all their amendments will be considered at the end of the Committee's proceedings—at 5 o'clock on Thursday 14 February 2002, if they have not already been dealt with—so it is utterly objectionable for them to put knives into the programme. It is not possible for the Opposition even to make an intelligent decision about the pace at which the Bill will be considered.

The Minister also said that there would be no surprises in the legislation so the debate would not need to be extended. I sincerely hope that the legislation will include a surprise because, on Second Reading, the Secretary of State said:

''Another subject on which we have received a number of submissions is community safety. There was widespread support in the local government sector for a provision in the Bill to give councils clear statutory authority to undertake community safety work. I very much welcome the councils' intention to play an active role in community safety, which will contribute to reducing crime and the fear of crime in their localities. In order to facilitate that, I am minded, subject to consultation with the Northern Ireland Executive, to bring forward an amendment on those lines.'' —[Official Report, 21 January 2002; Vol. 378, c. 646.]

We have not seen that amendment yet, but it will make substantial changes to the Bill, and will be an important part of our discussions. Community safety is of particular concern because of the loaded meaning of the word ''community'' in the Northern Ireland context.

The programme motion is extremely regrettable. The official Opposition believe that the knives should be removed. Our amendment would remove the knives and allow the Committee to consider the Bill without the pressure of the Government timetable.

Derek Conway (Conservative, Old Bexley and Sidcup)

I remind the Committee, in case other hon. Members want to contribute to this debate, that six political parties are represented in the Committee and we can discuss the programme motion for only half an hour. I hope that that will be borne in mind.

Patsy Calton (Liberal Democrat, Cheadle)

I, too, welcome you to the Chair, Mr. Conway. My hon. Friend the Member for Montgomeryshire (Lembit Öpik) apologises to you and to the Committee. He has been detained in another meeting and will be here shortly.

We shall agree to the programme motion. We want a self-disciplined, restrained and sensible approach to our deliberations. I am particularly pleased that the programme motion allows a fair amount of time for discussion of the later parts, particularly part 4 and the provisions on youth conferences.

Derek Conway (Conservative, Old Bexley and Sidcup)

The hon. Member for Reigate (Mr. Blunt) has proposed an amendment, which is in order.

Question put, That the amendment be made:--

The Committee divided: Ayes 7, Noes 16.

Derek Conway (Conservative, Old Bexley and Sidcup)

Copies of the financial resolution relating to the Bill are available in the Room. I remind hon. Members that adequate notice of amendments should be given to the Clerk of the Committee. As a general rule, my co-Chairman and I do not intend to call starred amendments.Clause 1 Guarantee of continued judicial independence

Clause 1 - Guarantee of continued judicial independence

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I beg to move amendment No. 80, in page 1, line 6, leave out 'continued'.

I, too, welcome you to the Chair, Mr. Conway. No doubt your briskness will rub off on us—or I hope and trust that it will.

This amendment is not the most serious or important that the Committee will consider, but it touches a chord. The use of the word ''continued'' in the first line of the Bill poses a question. It is included in the Bill without any reference to the review or without seeming to derive from it. That implies a certain attitude. One assumes that the administration

of justice is always impartial and just, so that word is superfluous. I believe that it is superfluous. For that reason, it is right that we should examine the matter at this initial stage.

I do not have to point out that the independence of the judiciary is emphasised in the European convention on human rights, which recognises the right to be heard by an independent and impartial tribunal. I therefore welcome the criminal justice review recommendation that

''primary Westminster legislation should make explicit reference to the requirement for an independent judiciary and place a duty on the organs of government to uphold and protect that independence.''

The principle underlying clause 1 is eminently sound, but I have two concerns regarding its implementation. The amendment addresses the first of my concerns, and relates to the use of the word ''continued''. The review, it is noticeable, did not recommend that that word be included. The word was never used in the review, for good reason. That can hardly have been accidental, given the nature of the Bill and the controversy surrounding the system of justice and law in Northern Ireland during the many decades since the state was formed.

The use of the word ''continued'' poses questions for all of us. It is especially important because we are discussing a new beginning, not just for the criminal justice system and the political process in Northern Ireland, but for policing. It is a new attitude to life. If we retain that word, we will, by implication, be trawling something from the past and carrying it into what we envisage for the future. It is superfluous. Whether or not the judiciary was independent in the past is a matter for debate, but it is irrelevant to my point. If the judiciary had been fully independent, would we now be dealing with a Bill of this nature and size?

The amendment is not the most important one that we will consider, but if we are starting on something new and dealing with something that looks to the future, rather than harking back to the past, the use of ''continued'' is superfluous. It is also pejorative about the past, and perhaps we should try to dispel such attitudes. I commend the amendment to the Committee.

Crispin Blunt (Conservative, Reigate)

I listened carefully to the hon. Gentleman. I am glad that he acknowledges that it is not the most serious amendment that we will consider, and I hope that that means that he will not press it. The effect of the amendment and its implications would be regarded with the utmost seriousness by the people at whom it is aimed—the members of the judiciary.

The judiciary in Northern Ireland has discharged its responsibilities with the utmost heroism during the past 33 years. A number of its members have been murdered. They have required permanent protection from the threats of murderers, and they have had to move home. They have not only had to suffer the constant physical presence of people to protect them, but have had substantial changes made to their whole way of life in order to sustain a judicial function in Northern Ireland.

No one examining the judicial record in Northern Ireland during the past 33 years, whichever side of the argument they come from, could regard the judiciary as having been ''on their side''. The fate of the evidence from the supergrasses is a case in point. In that instance, the judiciary acted in a way that caused massive inconvenience for the forces of law and order who were fighting terrorists and murderers in Northern Ireland.

I sincerely hope that the hon. Gentleman will reflect on what his amendment would actually mean for those who are its targets, and will withdraw it. I see it as a gratuitous insult to the record of the judiciary. The way in which they have carried out their function in terrible circumstances is beyond reproach.

Sylvia Hermon (UUP, North Down)

I, too, welcome you to the Committee, Mr. Conway. I am delighted to see you here this morning.

I take exception to the implication of the amendment tabled by the hon. Member for Newry and Armagh (Mr. Mallon). I, too, would like to see it withdrawn for various reasons. First, I listened carefully to what the hon. Gentleman said, and he did not produce a shred of evidence to show that the independence of the judiciary has been called into question.

Secondly, if the hon. Gentleman had examined some of the research papers behind the review, he would have come across an interesting document on judicial appointments and training. It is significant, because it pays tribute to the courage, integrity and independence of the judiciary during the past 30 years, which we cast aside at our peril. It states:

''Over the past 30 years the role of the judiciary in Northern Ireland has been influenced by the political situation. Judges have been considered a 'legitimate target' and they have been surrounded by constant security. There have been five members of the judiciary murdered (one Supreme Court Judge, two County Court judges, two Resident Magistrates) as well as the wife of a judge and the daughter of a Resident Magistrate. Five members of the judiciary have been injured, including a Lord Chief Justice; two Resident Magistrates; one County Court Judge (seriously injured); and one Resident Magistrate (seriously wounded in a gun attack which killed his daughter). There have been a total of 18 terrorist attacks made against members of the judiciary and virtually all have been intimidated or received threats. There have been 114 attacks on court buildings and most have suffered damage...These security considerations provide a frightening disincentive for potential judicial appointees in Northern Ireland.''

The amendment tabled by the hon. Member for Newry and Armagh is contemptible because of what it implies, and I urge him to withdraw it.

Edward Garnier (Conservative, Harborough)

May I, along with those who have already spoken, welcome you to the Committee, Mr. Conway. I remember you as a fair Whip, and I trust that I shall enjoy your fairness in the Committee. I also congratulate the Minister—without undue flattery—on his appointment. This is the first time that I have had the chance to fence with him in Committee since he became a Minister. As a Back Bencher, he performed extremely well in debates in the Committee considering the International Criminal

Court Bill, and it was clear that he would not be long in moving from the Back Benches to the Front Bench. I did not appreciate then that I would be moving from the Front Bench to the Back Benches, but life is full of surprises.

I agree with my hon. Friend the Member for Reigate and the hon. Member for North Down (Lady Hermon) that we should try to persuade the hon. Member for Newry and Armagh to withdraw the amendment. It begins our deliberations on an unnecessarily contentious note. We have had our little dance about the programme motion, and that is probably enough. It is important to remember what we are about, which is to introduce a judicial and justice system for Northern Ireland that suits the circumstances of the Province, which I hope will remain firmly within the United Kingdom.

The United Kingdom judiciary—I include the judiciary of Northern Ireland—is famous worldwide for its independence of politics, and its freedom from political persuasion and cajolement by Government. As the hon. Member for North Down showed with her catalogue of victims, it has remained independent despite the terrorist onslaught that has been visited upon it. When I was working for Sir Nicholas Lyall, the Conservative Attorney-General, who was also Attorney-General for Northern Ireland, I came to a distinct understanding of the quality of the judiciary in Northern Ireland, of its fierce independence and of its appreciation of its duties, which it had to carry out under difficult circumstances in very troubled times.

I know that the hon. Member for Newry and Armagh means no ill will towards the current and previous holders of judicial office in Northern Ireland. He may be engaging in a debating point, but I wish that he would not because the implication of the amendment is unfortunate, to say the least. He has run his flag halfway up the mast. I urge him to pull it down again so that we can get on to the meat of the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to all hon. Members for their acceptance of the principle that underlies the clause—including my hon. Friend the Member for Newry and Armagh. He has been reminded at least twice that it is not the most important amendment, but it is one of those amendments that resulted from the extensive consultation exercise, and it comes as no surprise.

I thank the hon. and learned Member for Harborough (Mr. Garnier) for his kind words. I remember with pleasure our debates in Committee on the International Criminal Court Bill. If our debates in this Committee are of the same quality, we shall be satisfied. I do not share the hon. and learned Gentleman's view that the amendment would necessarily generate the contention or distaste that has been attributed to it. My hon. Friend went to great lengths to make it clear that he was not expressly criticising the independence of any of the current judiciary in Northern Ireland, nor did I hear him utter a word of criticism of any previous members. My experience of him is not as extensive as that of some other members of the Committee, but I know that he is no shrinking violet, and if he had something to say

on the subject he would have said it. Therefore, I suspect that he was not criticising the judiciary and did not intend to do so, but he can speak for himself.

It is helpful to have this opportunity to address constructively some areas of contention in the Bill. Some divisions of opinion may be strongly expressed, but I hope that we do so without descending to the level of criticism that has dogged some of the politics of Northern Ireland in the past.

I am grateful to my hon. Friend for introducing the amendment, although he will not be surprised if I try to persuade him to withdraw it. If he does not do so, I shall urge the Committee to resist it.

The Bill requires those with responsibility for the administration of justice to uphold the continued independence of the judiciary. On a plain reading of the review, that is its recommendation, which it made simply because of the paramount importance of an independent judiciary. Clearly, the reference to the

''continued independence of the judiciary''

implies that the judiciary is currently independent.

I listened carefully to what my hon. Friend said about making a new start and the dangers of dragging in some of the history of the administration of justice in Northern Ireland. I do not reject his basic sentiment that this is an opportunity for a fresh start, but removing the reference to ''continuing'' independence would imply that the serving judiciary and those who have served in those posts in the past are or were not independent. I do not know whether that is his intention, but the implication is completely untrue and should be resisted. For those reasons, the word ''continued'' should be retained.

I hope that my hon. Friend will be persuaded to withdraw the amendment. We have debated the issues and he has had an opportunity to air his views, to which all members of the Committee listened with care.

Patsy Calton (Liberal Democrat, Cheadle)

I come to the issue as a complete newcomer to the ways of Northern Ireland. In the past few weeks and months, I have learnt that the nuances of meaning that are attributed to words, and the insertion and removal of words, have massive implications. I do not believe that there is any intention to insult the judiciary or to forget the past and the risks that they took. I ask the Committee to consider what ''continued'' will mean in 10, 20 or 50 years. In 50 years, it will be superfluous.

I am not a lawyer, and I realise that I am among lawyers, but in my view the law is made up of words that must have a meaning for more than just the present. They must have a meaning for the future, as well. Therefore, in my view, the elimination of the word ''continued'' is sensible, and the Liberal Democrats will support the amendment.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I have noted with great interest some of the reactions to this legitimate amendment in the context of a Bill of this nature. I should like to deal with some of the points that have been made.

The hon. Member for North Down said that I did not produce a shred of evidence against any member of the judiciary. That is true, because I made no accusation against any member of the judiciary. Nor did I make a criticism of any of them. Because I made no accusation, criticism or implication, I felt no necessity to produce evidence, or to attempt to do so.

I was reminded that five members of the judiciary in Northern Ireland were murdered. That is correct. I knew three of them very well. I counted them as friends, and still do. It would be far from me, at this point of remove, to make implications about those three, about any other members of the judiciary who are murdered, or about any other serving members. That is not what the amendment says. The real implication is in the wording. I shall respond to the views of hon. Members, and I shall withdraw the amendment lest there be even a suspicion that there is an implication. However, let me ask the Committee whether, if the Bill related to Scotland, England or Wales, the sentence would read:

''those with responsibility for the administration of justice must uphold the independence of the judiciary.''

If we ask ourselves that question, would that not be the sentence? The reason for its inclusion is the suggested implication. If the Bill applied to Wales, would it not read as I hoped to amend it to read? I believe that it would. I am not a lawyer, like the hon. Member for Cheadle (Mrs. Calton), who spoke previously, but I believe that it is much more pristine as it is written. So be it.

While we are dealing with Northern Ireland we shall always have residues of difficulty. The hon. Lady was right to ask what the wording would be in 10 or 15 years' time? It is a valid point. I withdraw the amendment, although I think that it was right to table it, because there is a message for all of us in the very first line of the Bill. Perhaps I can, as kindly as I may, say that part of that message, in debates such as those that we shall have on this Bill, is that we shall have feelings about the issues. There will, of necessity, be raw nerves, and that will be understandable. If something as devoid of implication as this—and something that has had an amendment tabled to it that points to the future, not the past—touches nerves to the extent that we have seen, I hope that as we go further down the road we listen to one another and regard views as genuine, whatever feelings may be.

Sylvia Hermon (UUP, North Down)

I appreciate the hon. Gentleman's remarks. Although he spoke only to the lead amendment, I have looked at amendment No. 81, which has not received comment this morning. It uses words such as:

''The judiciary shall decide matters''—

Derek Conway (Conservative, Old Bexley and Sidcup)

Order. It might help the hon. Lady to know that we shall reach that amendment in due course and that hers is an intervention, not a contribution, so it must be directed at the hon. Member for Newry and Armagh.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. Lady for her comments and look forward to hearing the point about amendment No. 81.

I conclude on the note on which I hoped the debate would begin. There are no implications, and I should not like there to be any, for people whom I know, who are friends and who have been killed in their duty of carrying out their responsibility under the judiciary. I believe that the process of law and legislation is strong enough to rely on a statement that says,

''Those with responsibility for the administration of justice must uphold the independence of the judiciary.''

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 1, in page 1, line 6, after 'judiciary', insert 'and the legal profession'.

I preface my remarks by thanking my hon. and learned Friend the Member for Harborough for his contribution. I am embarrassed that our positions have swapped since we were with the Minister on the International Criminal Court Bill.

Edward Garnier (Conservative, Harborough)

My hon. Friend need not be embarrassed; our positions have not swapped. He has a political post as an Opposition spokesman on Northern Ireland. I lived in a world of my own as a shadow Law Officer. I may still live in a world of my own, but he is still doing an important job.

Crispin Blunt (Conservative, Reigate)

I am enormously grateful, and delighted that my hon. and learned Friend is on the Committee because he is the only lawyer among Her Majesty's Official Opposition. I hope that I do not misrepresent my hon. Friends the Members for Isle of Wight (Mr. Turner) and for Rayleigh (Mr. Francois) by suggesting that they do not have legal qualifications.

I hope that the amendment will be uncontentious. On the face of it, the evidence for it is overwhelming and has convinced a wide body of opinion that it should be accepted. While doing preparatory work for the Bill in Northern Ireland, I was struck by the force of the case for the amendment—or for one along similar lines—by the Law Society of Northern Ireland. In repeated submissions, it said:

''The safeguarding of human rights standards is not just a matter of judicial independence nor (in the specific context of the criminal justice system) of an independent prosecutorial structure. The existence of a genuinely independent legal profession is vital in the protection of human rights, not only in so far as this involves the framing of just laws and procedures but also in the robust and independent application and defence of those laws and procedures.''

That point was made to me forcibly, not only in writing but directly by Alan Hewitt, the president of the Law Society of Northern Ireland, and John Baillie, the chief executive. It is a strong recommendation of the Law Society, which was endorsed by Eilish McDermott of the Bar Council when I went to see her, that that should appear in the Bill.

The form of words for an amendment suggested by the Law Society of Northern Ireland was:

''Those with responsibility for the administration of justice must uphold the continued independence of the legal profession''.

Rather than include in the Bill a separate amendment about the legal profession, it seemed sensible simply to link the judiciary and the legal profession together.

The case behind the amendment did not come just from the Law Society, but arose from the review group that reported in March 2000. Paragraph 3.53 of that report says:

''Principle 16 of the Basic Principles''—

the United Nations' basic principles on the role of lawyers—

''also provides that governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. In his report on his mission to the United Kingdom in 1998, the Special Rapporteur on the Independence of Judges and Lawyers, Mr. Param Cumaraswamy, expressed particular concern about the fact that lawyers in Northern Ireland who had represented those accused of terrorist offences had been subjected to intimidation, harassment or improper interference, and had been identified with their clients or with their clients' causes. The Special Rapporteur welcomed the Northern Ireland Law Society's decision to establish a complaints procedure to enable solicitors to complain to the Society about any agency within either the criminal or civil justice system which had allegedly impugned or threatened their independence, professionalism and integrity.''

The review concluded from that, and I agree with the conclusion:

''We agree with the Special Rapporteur on the Independence of Judges and Lawyers that government has a responsibility to provide the machinery for an effective and independent investigation of all threats made against lawyers''.

In their plan for implementation of the criminal justice review, the Government acknowledge the special role of defence lawyers and say that they accept recommendation 9 of the review.

There is a climate within which the Law Society, the Bar Council and the review by implication uphold the necessity to protect the independence of the legal profession, and acknowledge the problems that there have been with the legal profession in Northern Ireland, not least over lawyers and clients being seen as too close together. Accusations have been thrown around about the legal profession's role in Northern Ireland. It is therefore necessary to include this provision in the Bill. The Northern Ireland Assembly agrees with that, which should be the clincher for Committee members to accept the amendment. Any agreement that is reached in the Northern Ireland Assembly among parties ranging from—

Des Browne (Labour, Kilmarnock and Loudoun)

I am very grateful to the hon. Gentleman for giving way in mid-sentence. I am conscious that the amendment arises from lobbying on behalf of the Law Society of Northern Ireland. I see the force of it and the relevance of paragraph 3.53 of the review, which I shall discuss in my response. However, will he apply his mind to the issue of the regulation of both branches of the legal profession in the light of his amendment? What are its implications for the regulation of a profession that is at present self-regulated?

Crispin Blunt (Conservative, Reigate)

I sincerely hope that self-regulation will be able to continue. The duty being placed on those responsible for the administration of justice in the clause is the upholding of the independence of the judiciary, and the amendment only adds the

independence of the legal profession. Such independence is a duty placed on those responsible for the administration of justice. Members of the legal profession, especially in their responsibilities as officers of the court, also have a duty to the court. My proposal is at the request of the Law Society and the Bar Council. I am sure that they would not want this in the Bill if they thought that the Government would find it necessary to propose a mass of regulations. I look forward to hearing what the Minister thinks the consequences of the amendments might be. I had certain consequences in mind when I tabled the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

I thank the hon. Gentleman for making it clear that what may be unintended consequences are not the ones that he had in mind. His amendment is not restricted to the circumstances that are discussed in paragraph 3.53 of the report, or to solicitors, barristers or officers of the court. It is an all-inclusive application of a requirement on certain bodies in relation to currently self-regulated professions.

Crispin Blunt (Conservative, Reigate)

Those professions rightly see themselves as independent. If they want their independence to be protected in law, as the amendment would ensure, the Bill should give them that independence. All parties in Northern Ireland share my conclusion. The Northern Ireland Assembly's Ad Hoc Committee report on the draft Justice (Northern Ireland) Bill and the criminal justice review implementation plan highlighted paragraphs 50 and 51 of the Law Society's evidence. It concluded in recommendation 2:

''That a new clause be inserted which acknowledges and safeguards the continuing independence and impartiality of the legal profession.''

I look forward with interest to hearing the Minister's reply, as the professions and all parties in Northern Ireland request the insertion of a new clause, as do the Opposition.

If there was a genuine consultation process, this must have been an oversight, or perhaps the matter was not considered in those terms. The review group did not conclude that an assertion about the independence of the legal profession was wrong or improper. It set down duties with regard to the independence of the prosecutorial system, as well as the judiciary, which appear later in the Bill. It strikes me as odd that there is not a duty on those who administer justice to sustain the independence of the legal profession. It had not occurred to me that there were significant arguments against such independence, which the Minister's interventions imply.

I look forward to the debate on the issues relating to my amendment, which I will withdraw if the Minister can convince the Committee that I should do so. However, I hope that he will agree to the amendment, given the consensus in the professions and the Opposition, and especially in the Northern Ireland Assembly, that these matters should be devolved.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I apologise for my slight lateness, but sitting in the meeting that delayed me gave me something to look forward to for the rest of the day.

The sentiment expressed by the hon. Member for Reigate is consistent with what the various bodies that he described have called for. The issue of concern to me is not one of strategy. It is appropriate for us to explore the intention to support what, for the sake of simplicity, is being called the independence of not only the judiciary but all those involved in the administration of justice, including the legal profession. However, my concern is with the specific wording. The definition of ''independence'' could be different outside the Committee. The hon. Member for Reigate suggested a definition such as ''a profession whose practitioners see themselves as independent'', but the difficulty is that a lawyer could have a field day with any definition of ''independence''.

The Minister will no doubt return to the point, but the big question that the hon. Gentleman may be able to address in his summating speech is how self-regulation alone can be a sufficient tool for those responsible for the administration of justice in Northern Ireland to ensure that the legal profession is maintained independently. Self-regulation would probably work until there was a significant example of when it failed or the legal profession acted non-independently. History tells us that at such a moment huge pressure is put on a Government to shift from self to mandatory regulation. I am not a great fan of such a shift—generally in society we go too far towards mandatory regulation—and the amendment would enshrine that responsibility on the Government. We would be providing in law that the Government should seriously consider mandatory regulation of the legal profession if they were not confident that they could maintain its independence in any other way.

Therefore, my question to the hon. Gentleman is not about intent, but about definition. How could the definition of ''independence'' be codified so that it would not be up for legal challenge, and how does he respond to my concern that a Government might be under enormous pressure to create a mandatory regulatory structure in the event of a failure of the independence of the legal profession?

Edward Garnier (Conservative, Harborough)

I intervene just to persuade the Minister that his intervention on my hon. Friend the Member for Reigate, although interesting to hear, revealed a non-point. It is a non-point particularly when it comes from the mouth of a representative of a Government who intervened on the legal profession with the Access to Justice Act 1999, even though he was not a Minister at the time. As a former full-time lawyer, I am sure that he is concerned about the independence of the legal profession and that, like me, he will have been dismayed about the passage of that legislation. Although called the Access to Justice Act, it stripped away access and was more of a denial to justice Act, and I trust that when we get back into Government, we will do something about it. It was a wholesale intervention on the independence of the legal profession.

At first blush, my hon. Friend's amendment appears to be outside the terms of the long title of the Bill, which is:

''A Bill to make provision about the judiciary in Northern Ireland''.

To that extent, it seems that it would be ultra vires the Bill to make provisions about the legal profession, but my hon. Friend has in fact lighted upon an extremely important point. Like me, he knows that we cannot have an independent judiciary unless it can rely on an independent legal profession. The judiciary in the United Kingdom is exclusively taken from the legal profession, and one reason why our court system works in Northern Ireland, Scotland, England and Wales is because of the mutual understanding and bond of trust between those who act as advocates and those who sit in judgment. That trust is brought about by working together because judges, having been either solicitors or barristers themselves, know the people who appear before them. That is increasingly difficult in the large legal profession of England and Wales, but in Northern Ireland, as in Scotland, the legal profession is still relatively small and knows itself well. Any judge is likely to know or know of, with a good level of understanding, the character and merits of advocates appearing in front of him or her. The judge will rely on the good standing and independence of the advocate to assess whether the submissions and arguments he or she makes are honest and soundly based. The advocate may in due course become a judge. Those who appoint judges from the legal profession will know whether candidates are suited to become judges, by possessing not only the necessary intellectual capacity but also a character that allows them to perform the job with considerable independence.

I should declare an interest as the current Lord Chancellor kindly appointed me to the bench as a recorder in 2000. I am not making a party political point; I am making a point about the vital importance of maintaining not only an independent judiciary but also an independent legal profession on which the judiciary so much relies. I know from my own experience of sitting in the Crown courts just across from Parliament square in the Middlesex Guildhall that my job as a judge is made so much easier because I can trust that, by and large, the barristers and solicitor advocates who appear in front of me are straight, will not lie to the court and will not advance a dishonest submission based on made-up facts. They act in that way because it is their duty to do so, but also because it is inculcated into them from their student days and their pupillage—I have forgotten the modern term for doing articles. It is a sort of unspoken handing down of the culture from generation to generation that can be learnt only by experience, not by reading about it in books. If we do not understand the necessary relationship between the training of lawyers and the reliance that the judiciary places on them, we will make huge mistakes in the administration of justice, not only in Northern Ireland but in the rest of the United Kingdom.

I applaud the amendment. It is hugely important as a matter of fact and as a matter of symbolism. I do not see in it the pitfalls that the Minister implied in his intervention on my hon. Friend the Member for Reigate. The Law Society and the Bar Council of Northern Ireland can remain fiercely and proudly independent bodies that uphold the highest standards of the law and can continue to regulate themselves in matters of discipline. However, no profession is wholly independent of the law. Members of the legal profession in the United Kingdom are subject to the discipline of the criminal law. If they commit crimes outside or within their profession they will be prosecuted if the evidence exists to justify doing so. Equally, if a judge believes that an advocate appearing in front of him or her is committing a professional or a criminal offence, he or she will take steps to deal with that person, by reporting the matter to the leader of the Bar Council of Northern Ireland or to the president of the Law Society of Northern Ireland or, if necessary and the evidence warrants it, to the police or the relevant prosecuting authority.

There is no absolute independence in the sense implied by the Minister. No contradiction will affect the Bill by the addition of the words proposed by my hon. Friend the Member for Reigate. Rather there will be an underlining of the symbiotic relationship between the judiciary and the legal profession, which makes our courts cleaner and more widely respected. That is essential for a part of the United Kingdom that has seen huge difficulties between the two communities.

I speak with diffidence because I have not lived in Northern Ireland since the 1950s, though I have listened to people such as the hon. Member for Newry and Armagh and other Northern Ireland MPs—and visited the Province subsequently. Where it is difficult to maintain law and order generally, the independence of the legal profession and of the judiciary should go hand in hand and be afforded statutory recognition.

I urge the Minister to view the amendment kindly. If he is dissatisfied with the drafting, he will doubtless say so and draw on the expertise of his officials, who might be able to improve it. I am not convinced, however, that the amendment can be improved. It makes sense, and coincides with the realities and the proper needs and expectations of the ordinary men and women of Northern Ireland, who rely on an independent legal profession to protect their civil rights. It also protects the judiciary, as we saw in debating the earlier amendment. The judiciary comes from the legal profession and its fierce independence relies on the quality of the legal profession before it.

I have unnecessarily extended these simple points with an over-wordy intervention, but I hope that the Minister will find some merit in these remarks in support of my hon. Friend.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

In tabling the amendment, the hon. Member for Reigate has done a service to the Committee at this early stage. The amendment raises a crucial point and I listened carefully to what the hon.

and learned Member for Harborough said about it. It is almost unique to hear someone of such standing in the legal profession explain that its importance lies in the fact that it is the only bulwark—in respect of the process of law—for the ordinary man and woman on the street. It is not just a lawyers' discussion about how best the legal profession should be catered for. It goes to the heart of how we, the legislators, create law and subsequently hand it to the judiciary and the legal profession to sustain as a means of protecting the individual.

The amendment is crucial and welcome, particularly at these early stages, as I said. Many views about the legal profession are expressed. Whether we are talking about judges, solicitors or barristers, they deal with what we hand them to protect us and maintain order in society. I accept that the lay person requires some definition of the word, ''independence''. People readily understand that the legal profession is expected to--and, by and large, does--behave with integrity. Its members work to the highest standards and, as the hon. and learned Member for Harborough said, are straight and deal properly with the law and with the public. I look forward to hearing a definition of the word ''independence''. It is important, because it may allow us to recognise the benefit of the amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

In response to the hon. Member for Reigate praying in aid the support from several sources for the principle behind the amendment, I will be impressed if proposals that come before the Committee have that level of support and—this is important—when tested, are seen to be practical, operative and capable of improving the justice system in Northern Ireland. I wish to make several comments about the importance of that to the amendment.

The all-party Assembly Ad Hoc Committee and the Opposition have accepted the recommendation of the Law Society of Northern Ireland. However, I have no sense that anyone has done anything other than accept it in the broadest principle. It is not tested in any of the documents that I have read.

Late last night, to prepare for today's Committee, I read again the evidence given by the Law Society of Northern Ireland to the Assembly's Ad Hoc Committee on 29 November. It was instructive to read it because, although the issue occupies a substantial part of the evidence, the questioning needs questioning; the hon. and learned Member for Harborough will recognise that. The questions were asked by people who knew the answers that they would get; in fact, some of the questions included the answers. They knew exactly what the Law Society's position is from the written submission, and no one asked, for example, for a definition of independence.

Mr. Garnier rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall allow the hon. and learned Gentleman to speak in a moment.

How does the definition differ from that for independence of the judiciary? Later, I shall deal with some of the problems arising from that. No one asked the question that I pose: what will be the consequences of self-regulation of both branches of the profession in

Northern Ireland? I did not say in my intervention that they must give up self-regulation. The hon. and learned Gentleman spoke about self-regulation in relation to discipline, but self-regulation of both branches of the profession in Northern Ireland, as in Scotland, England and Wales, covers substantially more than just discipline.

I served for eight years on the council of the Law Society of Scotland and know all about self-regulation and how jealously the legal profession has guarded it, for good reasons to do with their independence and their ability to serve the purposes that hon. Members articulated so ably in the debate. However, no one asked the Law Society of Northern Ireland about the implications of self-regulation, how it would be enforced or what framework would have to be in place in order for those with responsibility for the administration of justice to uphold the independence of the legal profession in any circumstances. I intervened because of that concern.

Edward Garnier (Conservative, Harborough)

No one has asked the question posed by the Minister about the independence of the judiciary either. Having practised law in relatively peaceful parts of the United Kingdom, he and I take it for granted that the judiciary and both wings of the legal profession are independent and that it is right that the state, the courts and so on should uphold their independence.

However, clause 1 is not something that one normally sees in a British Act of Parliament: it is an aspiration and a declaration of intention and will, not a specific provision. Given that fact, we are in different legislative territory. If an aspiration as to the independence of the judiciary is in the Bill, why should we not also put the legal profession on the shopping list of those to be protected by that aspiration?

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. and learned Gentleman for raising that point, because it allows me to try to explain why there is a difference. In the first instance—I know that this is not a complete answer—there is a distinction. Clause 1 states:

''Those with responsibility for the administration of justice must uphold the continued independence of the judiciary'',

and of course the Government are included in the general description of those with responsibility for the administration of justice. That requirement was a recommendation by the review, and one can summarise the reason for that as the paramount nature of the independence of the judiciary.

However, the review made no such recommendation on the legal profession, despite the detail in which it considered aspects of that independence and made recommendations, particularly recommendation 9, following on from paragraph 3.53 of the review.

The Government propose the expression of an aspiration, accepting a duty on ourselves, and set out in further clauses specifically what we propose be put in place to guarantee the fulfilment of that aspiration as far as we are concerned. No such consequential

mechanism is spelt out or considered in relation to the Law Society of Northern Ireland, which is the principal proponent of the expression in the Bill.

Apart from that, no consideration is given to what independence means. The hon. Member for Montgomeryshire raised that important point. Those of us who have practised law and been involved with lawyers know that, to lawyers, it means something different from the independence of the judiciary. I accept that the concept operates in the same sphere and towards the same objectives, but it is different. In my view, that raises potentially tricky regulatory questions.

Let me give an example. What does independence mean in the context of solicitors who are working on litigation between two separate private sector clients? It is clearly not the same concept as the independence of a judge who may be called on to adjudicate on that litigation. The provision as drafted will have implications in that sphere.

Edward Garnier (Conservative, Harborough)

I am sorry to contradict the Minister, but he is inventing a non-existent problem. In the context of two opponents on a piece of civil litigation, independence simply means that they are independent of improper pressure or influence. The two solicitors may be arguing over a point of discovery--whether a document should be disclosed to the other side. The lay client of the solicitor who has the document under discussion may not want his solicitor to send the document to the other side because it could undermine his case. However, because he is independent and possesses the qualities and characteristics that are required of an independent legal professional, the solicitor will say to his client, ''I am sorry, it is inconvenient, but the law requires me, in certain circumstances, to break the link with my client and to uphold my link with the justice system.''

One does not need to list the categories of things that must be protected to undermine the argument that the legal profession should be independent and that independence should be upheld by those responsible for the administration of justice. It is rather like defining an elephant—elephants are easier to recognise than they are to describe. Just as the expression is used in relation to the judiciary, so it can and should be used in relation to the legal profession.

I do not see the difficulties that the Minister outlines; every lawyer knows what we are talking about, and every Member of Parliament ought to know. In the Northern Irish context, if it can be included in the Bill, as it is in relation to the judiciary, that is all well and good. I agree that it will not be fatal to the Bill or destroy the legal profession one way or the other, but if one is in the business of wish lists and of cataloguing who should be protected by those responsible for the administration of justice, surely the legal profession must be, if not first equal, at least a close second to the judiciary.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. and learned Gentleman once again for trying not to define ''independence'', and thus being helpful to the Committee. It is sometimes helpful to the Committee to say that concepts such as independence are not necessarily improved by people's attempts to define them and that people can better recognise things and be more comfortable when they are not there than when they are.

My argument against the amendment is that it has potential consequences for the regulation of the profession because it places a duty on the Government, who, I accept, have already regulated both professions. However, it is not an answer to the argument that we should explore its potential consequences to say that the Government have in the past introduced legislation that has regulated the profession. My argument is that until there is some clearer definition of what is meant by the profession in Northern Ireland in relation to the proposal, and until it is tested in relation to its potential consequences and those consequences are understood by everyone to be what the profession expects, the amendment presents a challenge that cannot be met in the context of the Bill.

The legal profession in Northern Ireland, especially the Law Society of Northern Ireland, advocates the inclusion of such an expression of intent in the Bill and I have on several occasions offered to meet them to discuss it. I understand that lawyers are busy and it may not have been possible to get the right people to discuss the matter with me until now. However, a meeting is planned; I have offered alternative dates and my officials have offered to meet the professions' representatives, but they have not found a convenient time.

The amendment sets an unpredictable precedent and I therefore hope that the Opposition spokesman will be—

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I am sorry for intruding. How would the Minister define, in the context of the Bill, those with responsibility for the administration of justice?

Des Browne (Labour, Kilmarnock and Loudoun)

Principally, the Government have responsibility for the administration of justice. The Bill establishes the framework that will apply when responsibility for the administration of justice is partly devolved to the Administration and Assembly of Northern Ireland. Those are the people who will have that responsibility. I am not sure whether the Bill provides a clearer definition: I shall look further into it and mention it later in our proceedings.

I hope that I have made the Government's view of the amendment clear. The Government object to nothing in the aims and objectives or in the principles of the profession articulated in our debate so far. We agree that aspirations should be set for the administration of justice. Having said that, and in the Bill's context, it makes sense to reduce those aspirations to a statutory expression because we may be entering an area that involves unpredictable consequences. Until those consequences are exhaustively examined, the Government will have to resist the amendment.

Crispin Blunt (Conservative, Reigate)

Obviously, I am disappointed that our array of arguments has failed to convince the Minister, but I note that he has yet to see the Law Society for a discussion about his concerns. I do not share his concerns, also articulated by the hon. Member for Montgomeryshire, about the consequences for regulation. The answer lies in what the Minister said about his own experience on the Council of the Law Society of Scotland. He argued that self-regulation was important because the profession used it as a means of guarding its independence. The hon. Member for Montgomeryshire produced the test: what happens when a member of the legal profession has obviously not been independent? Will the Government then have to introduce a vast array of regulations to sustain the profession's independence?

The whole Committee is agreed on the intention behind the amendment and the principle that the legal profession must be independent. Trying to define exactly what ''independence'' means causes the same difficulties faced by the Minister in trying to define all who have the responsibility for the administration of justice. Many people working for the Court Service in many different capacities have such a responsibility in sustaining the court system in Northern Ireland—or anywhere else, for that matter. Duties can be interpreted widely and people know what independence means.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

On the specific point about the definition of independence, two schools of thought appear to prevail. Some members of the Committee believe that it is unnecessary to pin a definition down; others feel that the matter represents an Achilles' heel in the amendment. What would happen if lawyers started suing each other in pursuit of a proper definition? I might lose a case and argue that my lawyer had not acted independently. Is that not a serious difficulty; will it not then be a duty to define independence more clearly?

Crispin Blunt (Conservative, Reigate)

The hon. Gentleman would have restitution of those circumstances anyway within the framework in which people are able to make complaints against lawyers. In the end, people can take legal action against lawyers, and it is the profession that insists on protecting its independence within its own codes. That goes to the point of the only effective question on the consequences, which the hon. Gentleman asked. He asked what would happen if were there a problem: would the Government have to produce a vast raft of regulations to take over from the Law Society and Bar Council the responsibility for regulating their professions? The answer should be no, for all the reasons that the Minister made clear about the importance of the profession guarding its independence and the ability of self-regulation to do that.

However, if it became clear that the professions were incapable of sustaining their independence or they were not exercising their functions independently, the Government would have to address the problem, whether through regulations or in other ways. That is precisely why the duty should appear in the Bill. If the

legal profession's independence were questioned, the Government would have to introduce regulations to re-establish it.

Edward Garnier (Conservative, Harborough)

I will provide an example that may be helpful to my hon. Friend's argument; if it is not, he can reject it straightaway. Does he believe that, if we were considering the Justice (Zimbabwe) Bill and clause 1 were framed exactly as clause 1 of this Bill, the Government would not want to include the words ''and the legal profession''? I appreciate that the facts of life in Zimbabwe are wholly different from those in Northern Ireland, but I wonder whether my hon. Friend would find it helpful to use that as an example to illustrate the point that I tried to make in my over-lengthy and feeble intervention.

Crispin Blunt (Conservative, Reigate)

I am extremely grateful to my hon. and learned Friend, because his point was helpful. It would be self-evident that, if one were trying to pass laws in the extreme example of Zimbabwe, one would be anxious to sustain and protect the independence of all parts of the judicial system as hard and fast as one could. One must wonder whether laws in Zimbabwe are terribly important to those who are responsible for the administration of justice under the current regime. However, before you call me to order, Mr. Conway, I should like to say that that is a separate issue which I do not intend to pursue further. However, the example was appropriate.

The Minister's objections in trying to find consequences that flow from the amendment violate the common-sense use of language. People know what independence is and that the judiciary and legal profession should be independent. That point is not at issue. We know that the legal profession will jealously and properly guard its self-regulation, but in the circumstances of self-regulation going wrong, there will be a duty to put it right. I would not want to advocate that, because of the consequences that would flow from it. I note that the Minister will be meeting the Law Society, and I hope that he can clarify that that will happen before Report, because it is important. I am happy to take an intervention, because if he has the chance before Report to reflect on the amendment, meet the Law Society and take account of our discussion, I am prepared to withdraw the amendment to return to it on Report. If the Minister will not meet the Law Society before Report, I will press the issue now.

Des Browne (Labour, Kilmarnock and Loudoun)

To my knowledge, we have offered 4 and 11 February as meeting dates, which will be when the Committee is still sitting. I am not sure whether those dates are convenient for Law Society representatives, but if the hon. Gentleman continues to speak I may get more information.

Crispin Blunt (Conservative, Reigate)

I shall not speak for long because we should finish discussing the amendment and make progress. The Minister is facing a strong alliance.

Des Browne (Labour, Kilmarnock and Loudoun)

I am told that the meeting has been agreed for 18 February, so neither 4 nor 11 February could have been accepted.

Crispin Blunt (Conservative, Reigate)

The meeting with the Law Society will therefore presumably be before Report stage. I hope that, in deciding when to bring the Bill forward for Report and Third Reading, the Government business managers will take account of that meeting on 18 February, which should give the Minister time to bring forward the amendment in his own name, if he wants to do so as a consequence of the meeting. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I beg to move amendment No. 81, in page 1, line 6, at end add—

'( ) The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason'.

I recognise that there will be reactions to the amendment, but I hope that they will not be overladen with accusations of non-existent implications. We have had an interesting debate in which it has become clear that a definition of line 1 of the Bill is required, on two counts: what is meant by those with responsibility for the administration of justice and by independence? Maybe it is naivety on my part or an overzealous desire to establish meaning, but I believe that we should try to define what is meant by the impartiality of the judiciary and the legal profession.

The amendment reads:

''The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason''.

That is clumsy and wordy, but it is accurate. No member of the Committee or anyone outside it could disagree with it in trying to arrive at a definition of impartiality. No one could quibble with any of those phrases or with the totality of them. However, I fear that there will be those who say that impartiality surely means what it says. I understand their position; from line 1 of the Bill, nothing in the Bill so far means what it says, because of the lack of definition. That is not unique.

The amendment is taken, almost word for word, from United Nations basic principles on the independence of the judiciary. It is, therefore, not based on any great inspiration on my part. It is clearly reflected in the basic principles of the United Nations. The definition would impose a duty of independence on the judiciary and the legal profession, and protect them from any attempt to encroach on their independence from any quarter.

That brings us to a point that was alluded to in a previous debate. Do we all believe that there are no tensions, and never will be, between the various parties described in the Bill who are responsible for the administration of justice? Will there never be times when strong tensions arise? Have there not been times over the past 30 years in Northern Ireland where great tensions have existed between those parties? If we honestly ask ourselves those questions, and are not

afraid to answer them, we must say that there will always be such tensions, especially unrest and violence. There will always be tension between the various strands of Government and the administration of justice. That is inevitable. Human nature and necessity demand it. Are we living in a world in which we say to ourselves that those tensions will never be there? They will always be there.

I could give examples, but I do not want to because of the inference that I am making a judgment about the past. Many members of the Committee know from what has happened more than once on the Floor of the House that those tensions exist. There is no such amorphous quality about those who are responsible for administering justice in this country, Northern Ireland or, indeed, Zimbabwe. Those tensions are the very nature of the way in which the entire political administrative system works. We should remove ourselves from the ivory tower where it is said that those tensions do not exist. They do, and they will.

There is enormous potential for other tensions in devolution and for making the administration of justice in Northern Ireland a function of a Northern Ireland Administration, while elements of security remain outside the responsibility of that devolved Administration. Those are but two of the ways in which more definition would not imply anything about the legal profession or the judiciary, but would reinforce the integrity of their position, and protect them. Those tensions are inevitable, because, however fair the wind blows in Northern Ireland, it will not blow away the residue of a bitter past in a short period.Would that it were different, but, if we are taking a new step and creating something for the future, let us do it in a way that will protect the capacity not just of the judiciary and legal profession but of the amorphous group known as

''Those with responsibility for the administration of justice''

to act impartially.

I do not believe that there can be any quarrel with the wording of the amendment or its constituent phrases. The legislative draftsmanship may look, and probably is, clumsy. However, I would rather be clumsy and protect that which we seek to protect than be technically correct and leave gaps.

Edward Garnier (Conservative, Harborough)

I have some sympathy with the remarks of the hon. Member for Newry and Armagh, but I wish to make two points; for once, I will be brief.

First, if the wording is to come into the Bill at all, it would do better at clause 20(1), which states:

''Every person appointed to an office specified in Schedule 6 must, before undertaking any functions of the office,''

either take the oath or make the affirmation. Would not the hon. Gentleman's wording do better if it were put between the words ''must'' and ''before'' in line 12? It would say that every person appointed to an office specified in schedule 6 must

''decide matters before them impartially''—

and so on—

''before undertaking any functions.''

My second and more substantive point is that the amendment would not do any more than the proposed form of judicial oath or affirmation. All that the hon.

Gentleman wants is in clause 20(2) or (3). My hon. Friend the Member for Reigate and I have plenty to say about the new form of oath and the absence of an oath of allegiance, but that is a separate matter. The oath proposed by the Government at clause 20(2) adequately deals with the hon. Gentleman's concern, and it does so in a more concise form.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. and learned Gentleman for his point, which is not without validity. I take his point about the oath. It is a mistake to believe that the law is for the legal profession or the judiciary. It is not; it is for us. It is for our protection and for the protection of society. The ordinary man or woman on the street, such as myself, can understand the amendment, phrase by phrase. I am not sure that the ordinary person knows the oath is taken by lawyers or that they would recognise within it that which will provide the protection that the amendment, however clumsy, would offer. I recognise the validity of the hon. and learned Gentleman's comment, but there is another point to be made.

Edward Garnier (Conservative, Harborough)

The hon. Gentleman has a point to make and I am grateful that he does not think mine lacking in validity. The cliche is that if someone wants to keep a secret, they should make a speech in the House of Commons. I dare say that they could also write it into a Bill. Of course the wider general public will not study the Bill. Unless they are particularly sad, they will probably not read the Hansard of the Committee.

A small group of people in Northern Ireland who are interested in the administration of justice will come to know of our discussion, but at the end of the day—to use that dreadful expression—the people of Northern Ireland are interested in the quality of justice that they receive or that is available to them as citizens of this country day by day. They are interested in the quality of the judiciary that sits in civil and criminal cases.

I may be wrong, but I have a suspicion that, when taken by judges, the judicial oath at clause 20—I am guessing, but I suspect that that form of the oath, as opposed to the one that my hon. Friends and I should like to see in the Bill, will go into law—will have the desired effect on them, if that is needed. Judges will sit impartially and will do their best

''without fear or favour, affection or ill-will according to the laws and usages of this realm.''

In the words of the amendment, they will also

''decide matters impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason''.

Surely both provisions come to the same thing. Judges will do their best, but they will do so just as much under the oath in clause 20 as they would have under the amendment. I am not saying that the hon. Gentleman is making a bad point—he made some very good points—but the law is already clumsy enough and Acts of Parliament are wordy enough. I do not wish to undermine the argument that we had a

moment ago, when I wanted to add three more words, but sometimes there is a line to be drawn. I suspect that the oath in clause 20 will be good enough.

Sylvia Hermon (UUP, North Down)

As a comparative novice to Committee work, I apologise unreservedly for galloping ahead to amendment No. 81 while we were still discussing amendment No. 80, Mr. Conway. I also apologise unreservedly to the hon. Member for Newry and Armagh if I implied a criticism of him for not mentioning it.

My point relates to the Human Rights Act 1998, which Committee members will be aware came into force throughout the United Kingdom. Interestingly, it came into force in Northern Ireland earlier—immediately on devolution. I think that that provision was tucked away in schedule 14 to the Northern Ireland Act 1998. The Human Rights Act makes it clear that all litigants are guaranteed a fair and independent trial. If ''restrictions, improper influences, inducements'' and the other points in the amendment impinge on the fairness or impartiality of a trial, there is already on the statute book a means whereby that decision or judgment can be challenged. The amendment is therefore superfluous.

The Bill proposes the devolution of justice and policing to the Northern Ireland Executive and Assembly, which shows confidence that they will continue. I am pleased about that. Again, under the Northern Ireland Act 1998, particularly section 24, the Assembly and every member of the Executive, all Ministers and all Departments are duty bound by their obligations under the European convention on human rights. Therefore, there should be no concern about the future Minister of Justice failing to comply with human rights obligations. The provision is already on the statute book in the form of the Northern Ireland Act 1998.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

That was not my point. In some circumstances, it would not be a matter for the Minister of Justice, who might have a problem. A tension could be created between a devolved Administration and the sovereign Administration regarding the various aspects of implementation. Both impinge on the administration of justice. It is a dangerous position. The hon. Lady is right about redress under human rights legislation, but the clause is not about redress; it is about imposing responsibility on people—''those with responsibility for'' the administration of justice. That is the essence of the clause.

Sylvia Hermon (UUP, North Down)

I know that considerable time and expense have been invested in briefing the judiciary and members of the legal profession about the implications of the Human Rights Act. Those people are well aware of the need to guarantee a fair and independent trial. As it stands under existing legislation, the hon. Gentleman's concerns expressed in amendment No. 81 are already addressed, so the amendment is superfluous.

Des Browne (Labour, Kilmarnock and Loudoun)

As has already been pointed out this morning, the Bill places a duty on those responsible for the administration of justice to uphold the independence of the judiciary. Let me be of more help on the definition of those responsible for it. It includes the Government here at Westminster and the Executive in Northern Ireland under devolved arrangements. As the hon. Member for Reigate said, it includes other agents of the state, such as the Police Service of Northern Ireland, the Department of Public Prosecution, the Probation Board for Northern Ireland, the Court Service and others who have responsibilities for the administration of justice. I hope that that helps my hon. Friend the Member for Newry and Armagh to understand what the term means.

Clause 20 refers to an oath in which judges promise to do right by all manner of people ''without fear or favour''. I am grateful to the hon. Member for North Down for pointing out that the Northern Ireland Act 1998 brought the Human Rights Act 1998 into force in Northern Ireland in relation to devolved matters and institutions. That also applied in Scotland from 1 July 1999. Far from having to search in the Bill's schedules for a reference to it, we celebrate the fact that the Human Rights Act was at least partially in force in Scotland—and it has greatly benefited from it, despite what others suggested might happen.

The amendment covers all the ground again in language that my hon. Friend recognises is somewhat clumsy. It is clumsy because it is based on UN principles on the independence of the judiciary. The principles are simply that. They were never supposed to be translated into statutory form.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

Is the Minister implying that we should never confuse principle with legislation?

Des Browne (Labour, Kilmarnock and Loudoun)

I thank my hon. Friend for what I consider to be a somewhat mischievous intervention.

I was explaining why my hon. Friend found himself with an amendment that is, in his own words, clumsy. It was drafted by people who did not expect it to turn up in legislation, but were doing it for the purpose of setting out principles against which legislation or the law of a country that accepted those principles could be judged. The consequence is that the amendment contains some inelegant language and a lack of definition. Most importantly, it would impose no duty on anyone. The statement of the principles does not lend itself to duties.

My hon. Friend will be reassured that the protection of the principles is already contained in Northern Irish law. As is reflected in the oath, in whatever form it is taken, judges must act without bias or the appearance of bias. That is already the law throughout the United Kingdom, and the amendment is not needed to ensure it. The principles are protected also by criminal law, because any attempt to subvert them would be either an attempt to pervert the course of justice or, if successful, a perversion of the course of justice. The sanctions of criminal law already protect the principles that are set out by the UN.

Although the amendment was welcome and allowed us to debate the principles in the context of this important Bill, it would add nothing to the existing law. I recognise the point, which was well made by my hon. Friend the Member for Newry and Armagh, that we must get the message out to the people and reassure them that they are being served by a system of justice that is compliant with such principles. If they do not understand that the existing law does that, restating it in the Bill in an inelegant and clumsy fashion will not help. I hope that my hon. Friend is reassured that the principles that he wants to protect are protected by existing law and that he will agree to withdraw the amendment, because it would risk confusing matters considerably.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the Minister for his comments, the hon. and learned Member for Harborough for a valid point about the oath, and the hon. Member for North Down for the point that she made on human rights legislation. The Minister and the two Members are right up to a point. That point is something that will always be at variance when it comes to writing legislation, but a lay person would want to know what it is and how legislative draftsmanship, as the hon. and learned Gentleman rightly said, would write it so that secrecy is maintained at all times. The three points were valid, and I thank the hon. Members for helping me to make up my mind. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

I shall speak briefly, given that we have extensively debated aspects of the clause.

The clause places those with responsibility for the administration of justice in Northern Ireland—I defined them earlier, so will not go over that again—under a duty to uphold the continued independence of the judiciary. The criminal justice review group's terms of reference under the Belfast agreement specifically required that it should consider safeguarding the independence of the judiciary. In making its recommendation, the review group drew on views expressed during the consultation period and took account of human rights instruments and international best practice. It recommended that primary Westminster legislation enshrine the independence of the judiciary, and the Government agree that the independence of the judiciary is of paramount importance and must be protected. I commend the clause to the Committee.

Crispin Blunt (Conservative, Reigate)

I rise to support the clause, but wish to draw attention to the wide-ranging nature of the debate, the importance of words in defining ''independence'' and the difficulty in defining such concepts. It is extremely difficult to nail these things down precisely. We examined the clause by reference to the experiences in Northern Ireland and the attempts to administer justice in Scotland, Zimbabwe

and other jurisdictions where circumstances are either normal, abnormal or, as in the case of Northern Ireland, somewhere between the two.

What seemed an entirely uncontroversial clause has properly taken some time in the Committee. We have had an opportunity to examine immensely important concepts, and we shall want to return on Report to the issue of the independence of the legal profession. I am grateful to the hon. Member for Newry and Armagh for proposing the amendment. It showed how difficult and important the issue is in the context of Northern Ireland and the Belfast agreement. Our consideration must be careful, and we must understand the meanings that words have for different parts of the community, knowing perfectly well that the word ''community'' is somewhat loaded, as well.

Sylvia Hermon (UUP, North Down)

I wish to add my support for the clause to that of the hon. Member for Reigate and the Minister. I also wish to record my appreciation of the hon. Member for Newry and Armagh for withdrawing amendment No. 80. Like him, I believe that we are dealing with sensitive issues. I hope that we in the Committee can agree to disagree in a tone and manner that are pleasant and constructive.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Without the clause, the Bill would not make much sense. Nevertheless, we have had the debate and concluded that we need it. As we have covered the points, I hope that we can maintain a shorthand as we proceed. We have spent a lot of time on the issues, and there would not be much benefit in returning to them repeatedly.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Appointment and removal

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 86, in page 1, line 10, after 'Appeal', insert—

'or Judge of the High Court'.'

Derek Conway (Conservative, Old Bexley and Sidcup)

With this it will be convenient to take the following amendments: No. 87, in page 2, line 9, at end insert:

'( ) No order under subsection (2)(a) may add an office listed under subsection (1)(a).'

No. 88, in schedule 1, page 70, line 4, leave out:

'judge of the High Court.'

No. 128, in clause 5, page 4, line 4, after 'judicial offices', insert:

'or the office of Judge of the High Court'.

No. 135, in clause 6, page 5, line 31, leave out subsection (10).

No. 136, in clause 7, page 6, line 6, leave out subsection (7).

Sylvia Hermon (UUP, North Down)

I apologise for a typing error in amendment No. 86: ''or'' should read ''and''.

The amendments relate to the classification of members of the judiciary. The purpose of amendment No. 86 is to approve High Court judges. The number

of judges in Northern Ireland is small compared with the rest of the United Kingdom. We have seven such judges. In the amended clause, High Court judges would be listed and considered with the office of the Lord Chief Justice, and the Lords Justices of Appeal, of which Northern Ireland has three. In clause 2(1)(a) and (b), the offices of the Lord Chief Justice and the Lord Justice of Appeal stand on their own. The offices of the other judicial members are listed in schedule 1. For ease of reference, schedule 1 is on page 70 of the Bill. It is proposed that High Court judges are listed with county court judges and members of the mental health tribunal, but I believe that they should be considered with the Lord Chief Justice and the Lords Justices of Appeal.

Amendments Nos. 88 and 128 are simply paving amendments that are necessitated by my proposed change to clause 2. I want the Minister to consider the reclassification of the High Court judges because of the implications for their appointment and, more importantly, for their removal. The procedure in clause 6(10) does not apply to High Court judges. Instead, High Court judges can be removed under clause 7(2)

''by the First Minister and deputy First Minister, acting jointly.''

Amendments Nos. 135 and 136 seek to delete the reference to the removal of High Court judges in those two clauses. The only way that High Court judges could be listed in clause 2 with the Lord Chief Justice and the Lords Justices of Appeal would be under clause 2(2), which states that the First Minister and Deputy First Minister, acting jointly, may by order add or omit an office to those mentioned in schedule 1. The amendment would provide that clarification, so it is an easy amendment to accept. The seven High Court judges—not a great number—should be classified with the other senior judicial appointments of the Lord Chief Justice and the Lords Justices of Appeal.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Having listened to the hon. Lady, it seems clear that she and her party are attempting to codify High Court judges in a different way than originally suggested in the Bill. Her rationale convinces me that the proposal is sensible and I look forward to hearing what the Minister has to say about it.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Lady for explaining the amendments to the Committee. I shall endeavour to deal with them in the same order and clarify the Government's position. My interpretation of the amendments generally suggests an inherent inconsistency. If it is accidental, the Government will have the opportunity to instruct Parliamentary Counsel on drafting. Words sometimes creep in. I shall attempt to summarise the hon. Lady's argument and the Government's response. I hope that she will make it clear if she believes that I have misunderstood her.

Amendments Nos. 86 and 88 are designed to include High Court judges within the procedures for appointment to senior judicial office and to remove them from the remit of the Judicial Appointments Commission. If the amendments were accepted, the

Judicial Appointments Commission would have no power to recommend appointments at High Court level.

Amendment No. 128, however, would do the exact opposite. It would require all appointees to the High Court to be recommended by the commission, which is what the Bill provides. If I am wrong, the hon. Lady will point it out, but that seems to be the effect of the amendment. It is important to understand the historical context. Under Stormont, the appointment of High Court judges was reserved to Westminster, and the hon. Lady wants to retain the distinction. Whatever the arguments in the past, we are confident that the structures proposed in the Bill and by the review will prove strong enough to bear the devolution of appointments at this higher level.

Significantly in the UK context, the review's recommendations are exactly in line with what takes place in Scotland, where appointments to the equivalent level are devolved. The hon. Lady will be aware that a Judicial Appointments Commission is currently being appointed, although in a different fashion from what is proposed in the Bill. The Scottish context is similar, and there is merit in consistency with

respect to devolved Administrations. I well know that Scotland is not Northern Ireland because I have travelled between them on more than one occasion. The Government also see merit in consistency within the United Kingdom context in respect of responsibility for appointments.

Amendment No. 87 would prevent the First Minister and Deputy First Minister from using their order-making power under clause 2(2) to bring the offices of Lord Chief Justice and Lord Justice of Appeal into the remit of the Judicial Appointments Commission. The amendment is probably unnecessary. The review made it clear that it was not policy to extend devolution to those posts. Any order under clause 2 would require a cross-community vote under clause 82(2)(a), and require the agreement of the Lord Chief Justice. Surely those are safeguards enough for protecting the policies expressed in the review and accepted by the Government.

The hon. Lady expressed the theoretical possibility of an order—

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.

Standing Committee F

Clause 2 - Introductory

Peter Pike (Labour, Burnley)

I remind the Committee that with this we are taking the following amendments: No. 87, in page 2, line 9, at end insert—

'( ) No order under subsection (2)(a) may add an office listed under subsection (1)(a).'

No. 88, in schedule 1, page 70, line 4, leave out 'judge of the High Court.'

No. 128, in clause 5, page 4, line 4, after 'judicial offices', insert—

'or the office of Judge of the High Court'.

No. 135, in clause 6, page 5, line 31, leave out subsection (10).

No. 136, in clause 7, page 6, line 6, leave out subsection (7).

Des Browne (Labour, Kilmarnock and Loudoun)

I welcome you to the Chair, Mr. Pike. You had some flavour of the issues that the Committee will have to address when you chaired the Programming Sub-Committee this morning. Before lunch, your fellow Chairman expressed regret that he had to interrupt me in full flow. Perhaps you could pass my gratitude to him for interrupting me, because there is always more time, and he has given me an opportunity to reflect more carefully on what I was saying. I have revisited some of the reservations that I expressed this morning, and I no longer hold them.

I have again considered the amendments tabled by the hon. Member for North Down (Lady Hermon), and I think that I now understand them better. I shall try to explain my understanding of them. I hope that she will bear with me and accept my apologies if my earlier comments reflected an incomplete understanding of the group. Perhaps I should ask her to confirm whether my understanding is now correct.

The intention of the amendments is to give High Court judges the same tenure as the Lord Chief Justice and the Lord Justices of Appeal. My earlier comments attempted to draw out whether a change had been proposed to the appointments arrangements for High Court judges, but that does not seem to be so on reflection. Part of the reason for my comments—I have to give some excuse—is that the amendments

would not entirely achieve what the hon. Lady would like. That does not matter, as they allow us to debate the issue.

The hon. Lady appears to propose that High Court judges continue to be appointed by the commission, but that they continue to fall within the provisions of clause 6 on dismissal, along with the Lord Chief Justice and the appeal court judges. The amendments are not complete, as various consequential amendments would be needed to meet the hon. Lady's objectives, especially on appointment. That would involve the addition of the words ''and judges of the High Court'' at various places, but we need not concern ourselves too much about that.

At this stage, it would help if the hon. Lady would suggest in some way that I have a basic understanding of what she seeks to achieve. Whether or not she does so, I shall proceed.

The hon. Lady has accepted the proposed split on appointment, so I would be grateful if she would reconsider whether it would be more appropriate to be consistent on how the removal provisions were applied as well. The review's recommendation, which will be enacted in the Bill, is in line with Scotland, where appointments and removal to the equivalent level are devolved. Clause 6 differs from clause 7 in the way in which removals can be organised. In all cases, a tribunal needs to be established under the Bill to decide whether dismissal is appropriate. In the case of the Lord Chief Justice and the Appeal Court judges, there is an additional element to the proceedings. If the tribunal recommends dismissal, the matter also needs to be approved by both Houses of Parliament.

In a sense, that provides a greater level of protection. In practice, the different procedure reflects differences in the appointments process rather than the need for greater protection. The tribunal would still be the key element in proceedings. Given that Her Majesty appoints the most senior judges, it would not be appropriate to permit their removal without a vote of Parliament.

As I understand it, the hon. Lady is content that the appointments procedure for High Court judges should differ from that for the Lord Chief Justice and the Appeal Court judges. I hope that she agrees that the logical consequence of that is that they should also fall under the clause 7 provisions. The different process for removal is a reflection of the different process for appointment.

Sylvia Hermon (UUP, North Down)

It is nice to see you in the Chair, Mr. Pike. I should like to explain to the Minister that I will later speak to amendment No. 126, but I am not sure whether I can speak about it in an intervention now.

I was especially struck by what he said about the appointment to senior judicial offices. An ambiguity arises from the title of clause 4, which is

Appointment to most senior judicial offices.

Peter Pike (Labour, Burnley)

Order. Interventions must be brief. The hon. Lady has referred to an amendment that we have not yet reached.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Lady for pointing that out. She knows, as do I, that although the title of the clause may be of assistance in interpreting it, one has to consider the clause itself to see its effect. Clause 4 deals appropriately with the appointment of the Lord Chief Justice and the Lord Justices of Appeal. New section 12A of the Judicature (Northern Ireland) Act 1978, which is proposed in clause 4, deals with the pre-devolution position.

In any event, perhaps it is better to deal with amendment No. 126 when we come to it. We should concentrate on the group of amendments under discussion.

Peter Pike (Labour, Burnley)

That would be helpful.

Des Browne (Labour, Kilmarnock and Loudoun)

Considering the amendments in totality, we accept that there should be a difference between the appointment of judges on the list in schedule 1 and the most senior judicial appointments. For ease of debate, I shall refer to the former group as being devolved.

The hon. Lady seems to have moved judges of the High Court into the same position as that of the most senior judges, in terms of the provisions that relate to their removal in certain restricted circumstances. I am trying to simplify the Government's position, as it is simple, essentially. If the appointment is devolved, the process for removal has to reflect that appointment and be devolved. The fact that the appointment of the most senior judges is at the hands of Her Majesty means that their removal has to be different from the devolved process, and has to involve a motion before both Houses. That is the reason for the difference, not because some view has been taken of the importance of the judges, although some are clearly in more senior positions than others. If she accepts that a devolved process of appointment is appropriate, a devolved process of removal is also appropriate.

Sylvia Hermon (UUP, North Down)

Will the Minister clarify one point? Is it possible for the First Minister and the Deputy First Minister, acting jointly under subsection (2), to add the office of judge of the High Court?

Des Browne (Labour, Kilmarnock and Loudoun)

I was coming to that. It is appropriate for me to repeat the position that I outlined this morning in dealing with another amendment.

Amendment No. 87 is designed to prevent the First Minister and Deputy First Minister from using their power to make orders under subsection (2) to bring the offices of High Court judge, Lord Chief Justice and Lord Justice of Appeal into the remit of the Judicial Appointments Commission. For the reasons that I set out this morning and that I repeat, the Government's position is that, as the Bill is framed, the amendment is unnecessary.

The review's policy was not to extend devolution to the most senior posts. I accept that, and that is what we are trying to reflect. Because of the way in which the Bill is structured, any order made under clause 2 would require a cross-community vote under clause 82(2)(a), and the agreement of the Lord Chief Justice. Our position is that the safeguards are sufficient to prevent any disruption of the review's policy in the context of the Bill.

I accept that there is the theoretical possibility of an order, as the hon. Lady suggests, and I undertake that we will consider further whether a clarifying amendment would be helpful. However, I would argue that it would not add anything to the Bill other than to clarify the existing position. If the hon. Lady is reassured by that explanation, and if she can bring herself substantially to ignore some of what I said this morning, I hope that she can be persuaded to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I am genuinely trying to be helpful. It may be that because I was not here immediately before the Committee adjourned I missed the answer to the question that I am about to ask the Minister.

Appointments made under schedule 1 are described as devolved and other higher appointments may be described as Whitehall appointments. Has the Minister explained the logic of placing judges of the High Court on the devolved list as opposed the Whitehall list? Is there some magic to that decision? It may well be that the Minister has already explained that and it is my fault for not having heard him.

Des Browne (Labour, Kilmarnock and Loudoun)

The review recommended that the new Judicial Appointments Commission should appoint all judges up to and including High Court judges. It did so by implicitly drawing the comparison that I drew earlier with the cut-off point in the rest of the United Kingdom, particularly Scotland. Other international considerations were taken into account. As I said this morning, the review considered it appropriate for the devolved mechanism to apply to that level and the Government agree with its conclusions.

Principally, the review made the recommendation in the context of the totality of its recommendations and for the purposes of consistency with the way in which devolution operates in Scotland. If I remember correctly, in pre-devolution days, when the Secretary of State exercised some of the powers involved, the division between the Secretary of State and the Prime Minister occurred at the High Court judge level. I may be wrong about that, but that is roughly how the division works now, under devolution.

Crispin Blunt (Conservative, Reigate)

I welcome you to the Chair for this afternoon's sitting, Mr. Pike. However, I somewhat regret the fact that the Minister had the opportunity for a break because I am more confused now than I was before, although I thought that I understood the position before lunch.

I shall set out the official Opposition's position on devolution and related matters. We agree with the review and with the Government on the recommendations. It is appropriate for judges of the High Court to fall within the devolved structure and within the remit of the Judicial Appointments Commission. Therefore, they should be covered by the concomitant recommendations about tenure and the ability to remove them from office. Later in our proceedings, we will come to the issue that is slightly confusing—and on which I have tabled amendments to clause 4—the appointment of judges to the High Court, Her Majesty's involvement in appointments

and the consequences for the role of this House and another place. I agree with the Minister that that will be the most appropriate time to deal with those issues.

I agree with the Minister—in fact, I was delighted to hear him say this—that there is merit in promoting consistency across the devolved structures in the United Kingdom, as that will make it much easier for people to understand exactly which functions are exercised by the devolved administrations and which are reserved for what my hon. and learned Friend the Member for Harborough (Mr. Garnier) called Whitehall appointments in respect of the judiciary.

The Minister explained the purpose of amendment No. 128 before lunch, and I agree with the way in which he defined that. I just thought that it was appropriate to put on record the principle that underlies the Opposition's approach, a principle that also guides us in relation to other amendments that we shall discuss later.

Sylvia Hermon (UUP, North Down)

I thank hon. Members for their contributions. The Minister has been helped by his lunch and I appreciate the explanation that he has given. However, I remain unhappy that senior appointments—seven High Court judges—will not be classified with the offices of the Lord Chief Justice and the Lords Justices of Appeal. I shall not press my amendment to a vote but perhaps the Government will reconsider the matter before Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

The clause sets out the offices that are covered by the clauses dealing with judicial appointment and the removal of judges after devolution of justice functions. The clauses will be considered in more detail later, but clause 2 sets the scene for the important recommendations of the review regarding the appointment and removal of the Lord Chief Justice, the Lords Justices of Appeal and any other office listed in schedule 1. That list of offices may be amended by the First Minister and Deputy First Minister after devolution of justice functions with the agreement of the Lord Chief Justice. As we shall presently examine the clauses that deal with those matters in more depth, I urge the Committee to approve the clause.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Schedule 1 - Listed judicial offices

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 56, in page 70, line 9, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrates'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following: Amendment No. 57, in page 70, line 9, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 43, in clause 3, page 2, line 43, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 58, in schedule 3, page 76, line 8, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 59, page 76, line 11, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Clause 9 stand part.

Amendment No. 45, in clause 11, page 9, line 11, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 61, in schedule 4, page 82, line 31, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 62, page 83, line 7, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 63, page 83, line 11, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 64, page 84, line 18, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 65, page 84, line 23, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 66, page 84, line 28, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 67, in schedule 5, page 85, line 22, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 46, in clause 15, page 10, line 22, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 47, page 10, line 23, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 48, page 10, line 24, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 49, page 10, line 25, leave out 'District Judges (Magistrates' Courts)' and insert 'Resident Magistrates'.

Amendment No. 50, page 10, line 26, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 51, page 10, line 29, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 52, page 10, line 30, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 53, page 10, line 31, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 54, page 10, line 34, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 55, in clause 19, page 12, line 26, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 68, in schedule 6, page 87, line 28, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Amendment No. 69, page 87, line 29, leave out 'District Judge (Magistrates' Courts)' and insert 'Resident Magistrate'.

Crispin Blunt (Conservative, Reigate)

This long list of amendments relates to the nomenclature of magistrates and proposes replacing ''District Judges (Magistrates' Courts)'' with the term ''Resident Magistrates''. I had hoped that the list was comprehensive, but I understand that it might not be, and a few more amendments will be required to tidy the matter up if the Government are minded to accept the alteration.

When the review body sat, there was no controversy about the name of resident magistrates. However, the review body took it upon itself to come to the following conclusion, in paragraph 6.142. It is worth reading it out as a classic example of the bureaucratic tidy mind at work.

We have a further recommendation to make which is intended to demonstrate publicly that the magistracy is an integral part of the judiciary. In looking at the titles of the various tiers of judiciary, we gave some thought to the nomenclature of resident magistrates.

Having got that far, it is worth noting that at no stage does the review report anybody expressing any concern about the nomenclature of resident magistrates in the course of their work. It continued:

As we note in the next chapter, the term 'resident' has its origins in the nineteenth century when there were particular reasons for wanting office holders to live in the district where they held office. It has no meaning or relevance in the modern context. Moreover, we think that there is an opportunity, through a name change, to demonstrate publicly that the magistracy is an integral part of the judiciary. We recommend that legislation be passed to redesignate resident magistrates as district judges (magistrates' courts) . . . We favour retention of the term magistrates' court as it is commonly understood and reflected in a very large number of legislative provisions.

As we have seen from the number of amendments that are needed to the Bill to implement the renaming of resident magistrates, the term is widely used and well understood in Northern Ireland, not least by the profession itself.

The view of the resident magistrates should be the determinant as far as the view of the Committee is concerned. In their latest submission to the Minister they say:

The majority of Resident Magistrates maintain their objection to the change of name. We made a number of points re same on two visits to the Review Commission and also made written submissions. We understand from our other sources that part of the reasoning for change is similar to that in England and Wales (ie Section 78 of the Access to Justice Act 1999), which was to more fully recognise the status of stipendiary magistrates as members of the professional Judiciary.

It is the view of the Association that in Northern Ireland that our status and indeed our key role in the professional Judiciary particularly over the last 30 years has always been fully recognised.

So there is no concern from the people who would be the supposed victims of the situation that their roles are not understood. The other reason why I would urge the Government to give serious consideration to the amendments is that the term ''Resident Magistrate'' is not only one that is widely understood among the legal profession, it is also one that, in terms of pre-partition Ireland, has a literary meaning, initially through the successful book ''Some Experiences of an Irish R.M.'' which was subsequently dramatised as a television series. People are immensely familiar with that piece of Irish literature. Some might say that my sympathy for retaining the name results from the fact that the hero of the book—a Major Sinclair Yeates, who narrates the stories—is described in the ''Oxford Companion to Irish Literature'' as one who

combines the wide-eyed naivety of the straightforward Englishman abroad—

that is sometimes how I feel when dealing with Northern Ireland legislative matters—

with a tolerant and fun-loving disposition—

I shall allow others to make that judgment—

equipping him perfectly for the rough-and-tumble of the Irish village.

It may also be said that the Minister fits the role of the major's friend and inveterate antagonist Flurry Knox. The Minister and I may be antagonists in Committee and on the Floor of the House, but I regard him as a friend just as Knox and the major were friends. We have both been members of several Standing Committees, and I have come to know him extremely well.

The literary reason for retaining a name is worth while because of the culture that surrounds the judiciary. It is not necessary to change the name; it is well understood in Northern Ireland. The resident magistrates themselves want to keep the name. Although resident means that the magistrates are required to be resident in a particular place, I also take it to mean permanent—which is precisely what it is. I hope that the Government look kindly upon the amendments.

Edward Garnier (Conservative, Harborough)

I agree with the conclusion reached by my hon. Friend the Member for Reigate (Mr. Blunt). I am only sorry that the English equivalent, the stipendiary magistrates, did not take a similar view. When we were debating the equivalent clauses of the Bill that became the Access to Justice Act 1999, we all knew what a stipendiary magistrate was. They knew what they were, and they and the legal profession knew what their job was, and there seemed to be no need to change a familiar and understandable job description—or, to use the nomenclature of the review of the criminal justice system in Northern Ireland, there was no need to change it at all.

I was about to go into battle on behalf of the stipendiary magistrates when I was told that they wanted to change their name, so for once, the wind was taken out of my sails. They wanted to be called

district judges because they wanted to be able to say that were members of the judiciary; they did not want to be confused—no one I know would ever have confused them—with what they thought of as ordinary lay magistrates. They now have what they want, and I am sure that they will greatly enjoy the change of name.

One of my colleagues at the Bar rather waggishly thought that Queen's bench masters who work in a long corridor in the Royal Courts of Justice in the Strand had put it about that they wanted now to be called ''corridor judges'' because they, too, could enjoy the excitement of being members of the judiciary. However, it turned out to be a little joke. It seems that Queen's bench masters are happy to remain Queen's bench masters.

I tell you these rather unexciting stories, Mr. Pike, simply to say how pleased I am about the information given to us by my hon. Friend that the resident magistrates want to remain resident magistrates. If stipendiaries want to become district judges, and have their names changed by statute, let us do the same for Northern Ireland. If RMs want to remain RMs, let them remain so.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The Bill proposes a change in name. It is worth remembering that a strong justification for that exists. Paragraph 6.142 of the review of the criminal justice system recommended the name change. I apologise if the matter has already been covered. Such was the shock of my hon. Friend the Member for Cheadle (Mrs. Calton) that she virtually choked as she listened to the hon. Gentleman's speech. She has made a full recovery, I am glad to say.

Crispin Blunt (Conservative, Reigate)

For the record, I would like to point out that I was not actually speaking when the hon. Lady left the Room incommoded.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

My hon. Friend was anticipating the hon. Gentleman's speech, and felt it safer to wait outside. I say these things in jest, but I know from painful experience that irony translates badly in the record.

As I said, paragraph 6.142 of the report recommended the name change. It states:

We have a further recommendation to make which is intended to demonstrate publicly that the magistracy is an integral part of the judiciary. In looking at the titles of the various tiers of the judiciary we gave some thought to the nomenclature of resident magistrates. As we note in the next chapter, the term ''resident'' has its origins in the nineteenth century when there were particular reasons for wanting office holders to live in the district where they held office. It has no meaning or relevance in the modern context. Moreover we think that there is an opportunity, through a name change, to demonstrate publicly that the magistracy is an integral part of the judiciary. We recommend that legislation be passed to redesignate resident magistrates as district judges (magistrates' courts). We favour retention of the term magistrates' court as it is commonly understood and reflected in a very large number of legislative provisions.

Therefore, the proposals reflect faithfully the recommendations of the review of the criminal justice system.

This would not be the first occasion on which an organisation has renamed itself to stay with the times. Who can ignore the fact, for example, that the hon. Gentleman's party used to be called the Tory party and changed its name to the Conservatives, just as Windscale renamed itself Sellafield?

Crispin Blunt (Conservative, Reigate)

If the hon. Gentleman will forgive me, I should like to point out that ''the Tory party'' has always been a nickname, inherited not least from the bandits who inhabited Tory island off the north coast of Ireland. It was a term of abuse. However, the name ''Conservative'' has been used consistently since the forming of the modern Conservative party, which is not something that can be said for the Labour party.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I apologise to the hon. Gentleman, because it was a cheap one-liner and I deserved the rebuke. However, let us remember that no great benefit results from sticking to names that could be regarded as being slightly problematic.

Shona McIsaac (Labour, Cleethorpes)

Like the Liberal Democrats?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Indeed, as hon. Members know, we changed our name when parties merged to reflect more accurately who we were—until we got it right, which we have.

Let us move swiftly on. Government Members sagely point to the unstoppable evolution of the Liberal Democrats as the party of the 21st century, and the review of the criminal justice system suggests that a similar change should be made to a name. The practical justification for changing the name, in simple terms, is to make the body more accessible, as the new words are more user friendly for the public, who actually use and interface with the system. That is a matter of judgment, but we feel that the change would be small but useful, and should not cause the slightest concern about the abandonment of tradition.

Edward Garnier (Conservative, Harborough)

I apologise, Mr. Pike, for what is probably an unnecessary intervention. However, I worry when the Liberal Democrats use words such as ''user friendly'' and ''accessible'' in relation to the matters that we are discussing. Next, they will be asking for members of the judiciary to sit in workshops and deal with people in tents. The hon. Gentleman's arguments are interesting and amusing, and all the other adjectives that one can apply to the party that he represents, but we all know what an RM is. The RMs know what an RM is and the public of Northern Ireland are wholly familiar with the expression. Surely, it is essential that we do not change that which there is no need to change.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

That is a matter for the Committee to decide. I do not share the hon. Gentleman's optimism that the existing terminology is regarded as more attractive than the proposed terminology, but let us not make heavy weather—[Interruption.] or heavier weather, of the issue. The recommendation has been made and argued for rationally. The Government have taken account of the recommendation in their work and, for that reason, the Liberal Democrats believe that it is common sense.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I welcome you to the Chair, Mr. Pike. We have had a most interesting discussion on a serious decision. I share the literary nostalgia of Somerville and Ross. I do not quite see the resemblance between the Minister and Flurry Knox, but perhaps I will discover the resemblance before the next three weeks are up.

There is a fundamental point here. I have nothing against the term ''resident magistrate'', but why was the term ever invented in the 19th century? I do not purport to know but I will hazard a guess. It was because, like everything else at that time, there were not only absentee landlords but, absentee judges, who did not live in Northern Ireland and seldom, if ever, went there. As a device to ensure that there was some semblance of identity with the populace, the requirement for residency was introduced. I may be wrong and that may be fanciful, but I venture to suggest that it is right. Why was that required? That question goes to the heart of our deliberations in Committee.

When the term was invented and, indeed, when Somerville and Ross wrote about the Irish RM, there was no judiciary in the current sense. There was big house justice, not justice of the people, for the people, by the people, or anything verging on that. The judiciary was exclusive, not in capability but in status. I have nothing against the term ''resident magistrate'' but I have a lot against the concept of a judiciary reserved for one section of the community. I am not talking about Catholics and Protestants or Unionists and Nationalists but about big house inhabitants having the preserve on the process of justice. We must get away from that because it goes to the heart of many of the problems associated with the justice system.

Crispin Blunt (Conservative, Reigate)

I have been trying to find the reference in the review to the background to RMs, but I have failed, so I shall have to paraphrase. One of the key roles of resident magistrates was to counteract the perceived bias of the lay magistracy. The resident magistrate, who had to be a qualified barrister or solicitor, was introduced in order to address precisely the point that the hon. Gentleman is making. The history of resident magistrates, in terms of addressing the issues about which the hon. Gentleman is concerned, is on the side of the angels. It is, perhaps, another argument in favour of retaining the term.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I thank the hon. Gentleman for his point. However nostalgic we are, if we are to look at this anew, for the sake of the ordinary person—and we must use him as our touchstone, because the law belongs to the ordinary person, not to the resident magistrate or the corridor judge or whatever they want to call themselves—we must use new terms for a new approach and a new attitude to the whole process of the administration of justice. I can understand why resident magistrates want to continue with their title. I can understand why other terminologies would be attractive. However, as a lay person, I know what a judge is and I know that he is there to perform a specific role. I also know that there is a hierarchy among judges and I can understand that people looking at a justice system can understand that. It is

important that we recognise the newness of what we are trying to do. If we start bringing old terminology or nostalgia into it, for whatever reason, we are not helping.

I support the Government. They are right to go for a new start and to give the position the right name. A judge is a judge is a judge, whatever fancy name is given to him or her—a point that we shall cover soon. I hope that the new name will hold. It is right that it should, because it does something more fundamental than any of the arguments that I or other hon. Members have made. It goes to the heart of identification with a system of justice that has probably never been fully in place—certainly not in the community where I live and which I represent—since the state was founded. If we are going to get there, let us have a new start and let us have it on the basis of terminology that has no hang ups; I repeat that I have no hang ups. I, too, am very attracted to the Somerville and Ross novels. I think that I saw every television episode of ''The Irish R.M.'' I can live, sometimes, with the patronisation in it and I can tolerate the stage Irishness that was sometimes expressed by Flurry Knox and others. However, I do not want to live with any residue of big house justice at a time when we should be creating a completely new system.

Sylvia Hermon (UUP, North Down)

I regret to find myself in disagreement once again with the hon. Member for Newry and Armagh (Mr. Mallon). First, on the criminal justice system in Northern Ireland, these are recommendations to the Government. They are not set in stone. A recommendation does not have to be accepted unless the arguments for it carry weight. Change for change's sake, as a cosmetic exercise, should not be welcomed by the Committee. If the provision changed the substance of the work of resident magistrates, I might agree with it, but just to change their title, in what appears to be a cosmetic exercise, should not be countenanced. The resident magistrates are in favour of continuing with their current title, and I wonder to what extent the Minister consulted them before making this proposal.

Des Browne (Labour, Kilmarnock and Loudoun)

I have not read the books referred to, nor indeed, to my recollection, have I seen any of the television programmes. I may have done, but if I did, they did not impress themselves on me. I prefer, for obvious reasons, which I will come to, the view of my hon. Friend the Member for Falmouth and Camborne (Ms Atherton) on whether I fit the character of Flurry Knox, because she tells me that Flurry Knox—

Crispin Blunt (Conservative, Reigate)

Perhaps I can help the Minister.

Des Browne (Labour, Kilmarnock and Loudoun)

Perhaps I can help myself, first; then we will see whether I need any further help.

I am told that Flurry Knox is a rogue and is always up to some mischief or other, constantly in trouble and always has a scam—I can live with that. I am told that he is also a master of foxhounds—I cannot live with that. I would not like it to go uncontradicted that I would allow myself to be compared to a master of foxhounds. Further, I am told that he is married to a beautiful woman—I can live with that. I am told that

he gets his friend, the hapless English magistrate, into all sorts of bother, so that the locals can take advantage of him. If the hon. Member for Reigate wishes to live with the description of the hapless English gentleman, I am quite happy to live with the bulk of the description of Flurry Knox, although I may have to defend myself against some elements of it.

I am grateful for the support given to the amendments by the hon. Member for Montgomeryshire (Lembit Öpik) and my hon. Friend the Member for Newry and Armagh. I feel slightly embarrassed about what I am going to say about both of them. The amendments concern the Bill's provisions to rename resident magistrates as district judges (magistrates courts). All hon. Members have, to some degree, understood the reasons for this recommendation from the review.

My hon. Friend arrived at his view of the history of the position of resident magistrate from his knowledge of the matter, but shares that view with the review. I do not think that anybody has any objection to the continued use of the name, although both the hon. Member for Montgomeryshire and my hon. Friend expressed views on the importance of change, which I will come to in a moment.

Essentially, although we are discussing several amendments, there is only one substantive amendment in the group—No. 44, which deletes clause 9, thereby retaining the title of resident magistrate. The rest of the group are consequential on that amendment.

The Bill's provisions follow the review recommendation, which was intended to demonstrate publicly that the magistracy is an integral part of the judiciary. I have said, and no doubt will say on several occasions in this Committee, that it is my intention, where possible, to follow the recommendations of the review. However, the content of this debate has made it clear that some of the recommendations are more important and symbolic than others.

I do not get the sense that this issue will divide the community of Northern Ireland, but the reasons why the review recommended it are set out. The review concluded that the term ''resident'' had no meaning or relevance in a modern context, as there was no particular reason for wanting officeholders to live in the district in which they held office. Its recommendation was also designed to bring Northern Ireland into line with England and Wales, where the title of stipendiary magistrate has also been phased out. The hon. and learned Member for Harborough made the important point that stipendiary magistrates in England and Wales were keen to embrace the change for whatever reason, which was important for the acceptance of that recommendation. Whether others regret it or not is of little importance.

In my experience, the adjective ''resident'' is often attached to judges. It does not necessarily mean in the modern context that the judge lives in the jurisdiction, but that he or she is the regular judge in that court. It differentiates that judge from a circuit judge or temporary judge. People often use the term more

loosely and not as accurately as this as an adjective for judges. I am not certain that it has the same meaning for ordinary people that it may have had when it was attached to magistrates, when resident magistrates were introduced.

The arguments that I rehearsed in short from the review and those put forward by my hon. Friend the Member for Newry and Armagh have considerable merit. However, as the hon. Member for North Down said, the recommendations are not written in stone, and once the Government have considered them, they must take responsibility for deciding whether they should be translated into legislation and implemented. The Government therefore listened to the views that were raised during the two consultation periods on the review. They presented a mixed message. Although some agreed with the recommendation, some, not least members of the Resident Magistrates' Association, expressed their opposition to it. The Resident Magistrates' Association opposed the name change, pointing to the long history of the resident magistrate in Northern Ireland and his longer history in Ireland more generally. We accept that there is a growing strength of feeling that the name should be retained, not least as expressed in the submission from the Resident Magistrates' Association that was received on 10 January after the Bill was introduced. Neither we nor anyone else who supports the Government's settled view intend to cause any offence to resident magistrates. There was never any intention to cause such offence or to remove a name that has been synonymous with effective justice that has been applied evenly over many years.

It may be appropriate at this point to say a few words about the issue raised by my hon. Friend the Member for Newry and Armagh about the importance of change and symbols of change when change takes place. I agree with him that, for there to be a fresh start, it is sometimes important to show that it is a fresh start and that people can leave baggage from the past behind.

A significant number of judges are listed in the schedule and in clause 2, but interestingly, the only change is in relation to resident magistrates. It is not as if the change is one among several; it is the only change that the review proposed. Members of the review panel may have argued this had they chosen to, but the change was not proposed to benefit the modernisation of the justice system, but to clarify the status in the judicial pecking order of resident magistrates by calling them judges, and doing away with an adjective that has lost any current sense or relevance.

Given that there appears to be growing support for the retention of the name, the Government are prepared to reconsider the amendment. We are not prepared to accept it today, because several technical amendments not included in the group might need to be made. The Government want to go back to consultees, especially those who have taken an interest in the matter and have supported the change, to clarify our interpretation of their views and to engage with them about the process. That is good manners, apart from anything else. I turn to look at

my hon. Friend the Member for Newry and Armagh as I say that, given his contribution to the debate.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I should be interested if the Minister would inform us from where the weight of opinion in favour of the term ''resident magistrate'' has come. I suspect that it has not come from the populace at large, but I do not know. The Minister is obviously aware of where the pressure has come from. In the past two or three years I have discussed the subject, pending legislation, with many people, and the change did not keep anyone awake at night to the extent that would suggest a Government change of position.

Des Browne (Labour, Kilmarnock and Loudoun)

My hon. Friend's point has been made in another guise in Committee. The provisions of the criminal justice review may not have captured the imagination of the man on the Newry omnibus, but it does not alter the fact that our consultees have expressed a view on the subject. I made special reference to the Resident Magistrates' Association and the importance of the stipendiary magistrates position in England and Wales in relation to the proposed change of name. Some consultees have expressed no view one way or another.

Off the top of my head, I cannot remember the position in consultation of the party represented by my hon. Friend. I would not be surprised, and it would probably not surprise him, if its submission made no reference to the name change at all. I am not entitled to interpret from that that it was supportive or neutral about it. There is growing pressure from a number of discrete sources on the issue, but a number of discrete sources have contributed to the consultation in any event. The Resident Magistrates' Association made its submission, in which it set out the clear argument for the retention, after the Bill was tabled.

The amendments give me the opportunity to suggest that the Government are prepared to reconsider the issue, go back to people in the time available and give them an opportunity to engage with us on the issue in the changed circumstances. I accept that the issue is not exactly earth shattering, but if it will not be to the detriment of the administration of justice to do so, it is appropriate for the Government to take into account the position of those who hold the title and discuss their views with others. I understand that several consultees expressed support for the change. We should return and engage with them. If issues additional to those raised by the hon. Member for Newry and Armagh are relevant to the Committee, we should hear about them.

On the understanding that we will look further into the issues again later, I ask the hon. Member for Reigate to withdraw the amendment.

Mr. Blunt rose—

Peter Pike (Labour, Burnley)

Order. Before I call Mr. Blunt, I want to clarify the position. The Minister referred to amendment No. 44—a delete clause amendment—which is not selected. Clause 9 stand part is, however,

included within this debate. When we reach that stage, we will take a formal vote but not debate it.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful for that clarification, Mr. Pike. I was just pointing out that amendment No. 44 was the principal amendment and that the rest were consequential. The deletion of the clause causes all the other consequences, although it is not being debated in this group.

Peter Pike (Labour, Burnley)

The Minister is absolutely right. We are debating clause stand part with this group. The amendment is not selected, but the principle behind it is.

Crispin Blunt (Conservative, Reigate)

I am not entirely sure that I am grateful to the hon. Member for Falmouth and Camborne for her literary knowledge. However, the Minister was gracious enough to accept the description—other than the master of foxhounds, which I thought had merit—allotted him, so I should assume to myself the description of a hapless English gentleman. I was not suggesting that the Minister was really like the character; I was interested in the characterisation of the relationship between Flurry Knox and Major Yates—the friendship and the inveterate antagonism across the Floor.

I welcome the Minister's looking further into the issue with an open mind. It is quite proper for him to talk again to consultees. The issue was raised by resident magistrates and was in a sense created by the review, which I regret. Had it been left well alone, no one would have raised any objection. Changing the name does not take matters any further.

The hon. Member for Montgomeryshire is slightly embarrassed by his enthusiastic lapdog loyalty to the Government. Had he been present when I introduced the amendments, he would have noticed that I read out precisely the part of the review that he read out—only I did so to mock it as an example of bureaucracy gone mad and he did so to laud it and pray it in aid. I shall leave it to the Committee and the wider world to establish which clause in the report is most appropriate.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I thank the hon. Gentleman for teaching me humility once again.

Crispin Blunt (Conservative, Reigate)

I am getting used to the fact that we are all learning that.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

Would the hon. Gentleman accept that the conjectural history outlined by the hon. Member for Newry and Armagh regarding the origin of the expression ''resident magistrate'' might turn out to be real history? That would provide a major argument against retaining that term.

Crispin Blunt (Conservative, Reigate)

If that turned out to be correct and resident magistrates were regarded with outrage throughout the history of jurisprudence in Ireland, there would be no point in retaining it. I believe, however, that the reverse was the case and that the role of resident magistrates was to deal with concerns about the administration of justice in late 19th century Ireland. As I said when I intervened on the hon. Member for Newry and Armagh, we might justify retaining the name because of the principle of the

independence of the judiciary for which magistrates stood when the administration of justice was even more controversial than it is today.

Edward Garnier (Conservative, Harborough)

The Minister has made a valuable contribution to judicial history in Northern Ireland, and I hope that if the Government retain their current position on Report, my Front Bench colleagues will ensure that we have time to re-argue the point. Many amendments and huge tranches of the Bill are often left undebated on Report because we are guillotined into a tight timetable. I would not want the Government to lead us into a trap of our own making, which is to lull us into a sense of security and return on Report having done nothing but without giving us any time to register a complaint. I am positive that this Minister, of all Ministers, would not think of behaving like that, but unfortunately he does not control the timetable. Others who are not here may take a different view about the use of the time. I put that point up for consideration while we are happily engaged in agreement with the Government.

Crispin Blunt (Conservative, Reigate)

I thank my hon. and learned Friend. That is one of the consequences of the extremely tight programme under which we will have to consider the points, but I know that the Minister said that he wants to revisit this discussion, and I take it that the Government's intention is now to retain the name of resident magistrates unless the Minister is convinced otherwise following his consultations.

The default position is that the Government will introduce amendments, and they have more resources than me to ensure that they are comprehensive and technically correct. I thank the Minister for his attitude and open mind, which is appreciated on the Opposition Benches. We hope sincerely that we can continue Committee proceedings in the spirit with which we have discussed these amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 3 - Judicial Appointments Commission

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I beg to move amendment No. 140, in page 2, line 19, leave out paragraph (b) and insert—

'(b) five persons nominated by the Lord Chief Justice and appointed by the First and deputy First minister, acting jointly (referred to in this section and Schedule 2 as ''judicial members''),

(c) a barrister nominated by the General Council of the Bar of Northern Ireland and a solicitor nominated by the Law Society of Northern Ireland and appointed by the First and deputy First Minister, acting jointly (so referred to as ''legal profession members''), and

(d) five persons who do not hold (and have never held) a protected judicial office and are not (and have never been) barristers or solicitors, appointed by the Secretary of State (so referred to as ''lay members'');

and a reference in Schedule 2 to a non-judicial member is to a member who is either a legal profession member or a lay member.'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following amendments: No. 141, in page 2, line 28, leave out subsection (5).

No. 2, in page 2, line 29, leave out 'five' and insert 'six'.

No. 3, in page 2, line 34, leave out 'five' and insert 'four'.

No. 4, in page 2, line 34, leave out '(and have never held)'.

No. 5, in page 2, line 35, leave out from 'office' to '(so'.

No. 142, in page 3, line 1, leave out 'First Minister and deputy First Minister' and insert—

'Secretary of State'.

No. 146, in schedule 2, page 71, line 32, leave out from 'the' to end of line 33 and insert—

'Secretary of State'.

No. 149, in schedule 2, page 71, line 34, leave out from 'The' to 'may' and insert—

'Secretary of State'.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Life is a boomerang. My unkind remarks about the hon. Member for Reigate and the Tory party have caused a generous compensation to arise from the Government. I simply warn the Minister that he must brace himself for a more cautious approach before we support him, as I am abandoned on an island of integrity as the Government sway one way and the other. That is the price that I pay for unwittingly repeating the hon. Member for Reigate, and not in jest.

In that context and in the spirit of listening that the Government have adopted, I hope that the Minister will listen seriously to the reasons why we have introduced the amendments. The rationale for the amendments is straightforward, and they all relate to the Judicial Appointments Commission. I raised the issue on Second Reading and explained that the Liberal Democrats are unhappy that the Bill allows the First Minister and Deputy First Minister, acting jointly, to appoint the lay members of the commission. We are concerned that that contravenes the report's recommendation that the appointments process must clearly be seen to be insulated from political influence. Safeguarding the independence of the judiciary is of singular importance to the review of the criminal justice system; we discussed that at some length earlier. The lay members of the Judicial Appointments Commission cannot afford to be seen as political appointees.

We suggested two ways to get round the problem, although only one has been selected for debate. It is contained in amendments Nos. 140 and 141, which specify that the Lord Chief Justice would nominate five judicial members to the commission, and that the Bar Council and Law Society would each nominate a member. Those seven members will be appointed by the First Minister and Deputy First Minister, as provided for in the Bill. However, the Secretary of State would appoint the lay members. That is not ideal; it means that the appointment of lay members is slightly further removed from those who are directly elected by the people of Northern Ireland.

We recognise that the amendment is complicated, in that part of the commission would be appointed by the

First Minister and Deputy First Minister and the other part by the Secretary of State. We accept that the Minister and the Government may find a more elegant solution to the issue; nevertheless, there is an issue. We put forward a separate set of proposals in amendment No. 151, which has not been called, to exclude particular categories of people from selection on the basis of a potential conflict of interest. We made the proposal to illustrate that there is more than one way to resolve the problem.

Fundamentally, our concern harks back to the issue that we discussed at the beginning of the sitting about the independence of the judiciary. Incidentally, we are not sympathetic to amendment No. 3, which decreases the number of lay members from five to four, because we believe that that number would not adequately represent the various strands in the population of Northern Ireland. Almost by definition, it would be difficult to achieve a true cross-section. I would genuinely welcome comments on the amendments from other hon. Members.

I look forward to hearing what the Minister has to say about the amendments and, more fundamentally, the issue that they raise. I hope that the Government are willing to give it some consideration, either by accepting our amendments or by giving a reassurance that we will revisit it in the time available between now and Report.

Crispin Blunt (Conservative, Reigate)

I am surprised that the hon. Member for Montgomeryshire has come forward with the construction, because it runs against the principle of devolution of justice. If Parliament is to give power to the Secretary of State to devolve justice at a time of his choosing—I hope that that will be with the agreement of Parliament; we will discuss that under a later amendment—it must be a concern if the Liberal Democrats are not prepared to trust the First Minister and Deputy First Minister to run a devolved justice system and appoint the lay and judicial members of the Judicial Appointments Commission. For the time being—until he is appointed to the House of Lords—the Secretary of State is an elected politician, as are the First Minister and Deputy First Minister. On the basis of the principle that justice should be devolved, which is the position of the official Opposition—I do not think that it is an issue across the parties—I am unable to support the hon. Gentleman's amendments.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Let me stress, first, that the amendment is not designed to cast aspersions on the politicians of Northern Ireland, but to ensure a clear distinction between the judiciary and politicians. Secondly, I am somewhat confused because on Second Reading the hon. Gentleman and the hon. Member for Grantham and Stamford (Mr. Davies) felt that we were shifting away from the Crown being the head of these matters towards a Northern Ireland context. They made great play of that, so is the hon. Gentleman now arguing that it does not apply to the amendments?

Crispin Blunt (Conservative, Reigate)

The First Minister and the Deputy First Minister will be Ministers of the Crown as part of the

devolved Administration within the realm of the United Kingdom. The Crown remains central to the functions of the devolved Administrations, whether in Northern Ireland, Scotland or Wales, as it does within the United Kingdom as a whole. The hon. Gentleman's argument does not apply.

Let me turn to the amendments, which are in two groups. Amendments Nos. 2 and 3 deal with the membership of the Judicial Appointments Commission and propose a rebalancing of the numbers; and the others deal with the qualifications of lay members.

The numbers suggested in the review as appropriate to secure a balance on the commission were not prescriptive. The review's conclusion, stated in paragraph 6.103 was:

As for membership of the Commission, we envisage a strong judicial representation drawn from all tiers of the judiciary (including a representative of the lay magistracy) and nominated for appointment by the Lord Chief Justice after consultation with each of those tiers. The Lord Chief Justice or his nominee would chair the Commission. In line with practice elsewhere, there would be one representative nominated by the Law Society and one by the Bar Council. In total the Commission might consist of around five judicial members, two from the professions and four or five lay members.

So, according to the review, no precise figure for membership is recommended. The overriding principle—it is reflected in the review—is that the judiciary must be appointed on merit.

The balance of the commission as set out in the Bill is weighted in the wrong direction, particularly regarding qualifications. I want to rebalance and reweigh it by having six judicial members and four lay members on the commission. An additional benefit of having six judicial members is that it allows for the representation of one layer of the judiciary currently unrepresented in the Bill—the deputy county court judges, of which there are 40. That idea found favour in the review.

I realise that I have jumped to amendment No. 6, Mr. Pike, but it is appropriate to debate it here, because if this group of amendments were not accepted, amendment No. 6 would necessarily fall.

Des Browne (Labour, Kilmarnock and Loudoun)

It is not just a question of numbers, but tiers of the judiciary, and deputy county court judges are in the same tier as county court judges. That tier is already reflected—in line with the recommendations in the review and the Bill's provisions—in the membership of the commission.

Crispin Blunt (Conservative, Reigate)

From my reading of the Bill, I am not sure that the Minister has been properly directed. Clause 3(6) says that judicial members ''are to be'', but it says nothing about deputy county court judges being part of a tier. It is a matter of definition whether a county court judge is a county court judge, on which I turn to my hon. and learned Friend the Member for Harborough for assistance.

Edward Garnier (Conservative, Harborough)

My hon. Friend may turn to me, but whether he gets any assistance is another matter.

It strikes me that a county court judge is likely to hold the appointment of county court judge. A deputy

county court judge does not hold that appointment, but sits as a county court judge from time to time. It may be, and is often the case, that a deputy county court judge is a barrister or solicitor who is appointed to hold the office of deputy county court judge from time to time, or a resident magistrate who is being tried out to see if he is up to being a full-time county court judge. It is a question of numbers. I do not want to interrupt my hon. Friend for longer than the Chairman permits, but I suspect that if there are 40 county court judges in Northern Ireland, 40 of them will be ready and available to do the job. I am not sure that the numbers game is as adverse as my hon. Friend suggests.

Peter Pike (Labour, Burnley)

Order. For the convenience of the Committee, I rule that amendment No. 6 be added to the group. It states, in page 2, line 42, at end insert—

'(ca) a deputy county court judge.'.

Crispin Blunt (Conservative, Reigate)

My hon. and learned Friend assisted me, because I conclude that it is possible for an appointment to be made to the Judicial Appointments Commission in line with amendment No. 6 to insist on a deputy county court judge, especially given the nature of the role of deputy county court judges. That is not a great point of principle, and if the Minister points out that I have misunderstood the nature of the ranking system in the judiciary in Northern Ireland and that by the nature of the appointments, people exercise those responsibilities only temporarily and are unlikely to be deputy county court judges for long, it may not be appropriate for this to be included in the Bill. I await the Minister's response.

However, that does not detract from the fact that there is a concern that the weighting given to the lay element in the Judicial Appointments Commission is too great. If we are to sustain the independence of the judiciary and to ensure that the appointments are made on merit, it is important that the judiciary has a substantial say in the process. That is not reflected by a commission that consists of half judiciary and half lay members, especially in relation to the qualification for lay members as described in the Bill.

I was surprised by the restriction in clause 3(5)(c) on the qualification of lay members to sit on the commission. It struck me as extraordinarily odd that if someone had been a barrister, solicitor or justice of the peace and so had some connection with the law, but had ceased to practise, that should disbar them from sitting as a lay member of the commission. I see it as a form of qualification that they had received legal training at some point and knew something about legal issues, even though the assumption would be that they would not be practising, because if they were they would be qualified under one of the other sections.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Is that restriction not necessary to achieve what we are discussing in line with one of the hon. Gentleman's earlier amendments on ensuring the independence of the legal profession? Would it not be hard to separate the two roles if former barristers and solicitors were members of the commission?

Crispin Blunt (Conservative, Reigate)

Appointing people to positions of responsibility is an important responsibility of the

Judicial Appointments Commission. If its members exercise their responsibility as lay members, their authority stems from their appointment. The fact that they have some knowledge of the system on which they are being invited to take decisions strikes me as an odd disqualification to apply. That disqualification should be removed from the Bill.

It may turn out that the recommended lay members do not have legal qualifications. That is likely, as it would be the desired scenario and, perhaps, common sense. However, Northern Ireland is not such a large constituency of professionally qualified people of the type you would want to appoint to a Judicial Appointments Commission that one should start placing restrictions on who was available. If a solicitor, who was well regarded across all communities, wanted to be appointed, it would seem odd if they could not because they had been so unwise as to qualify as a solicitor in their youth. That restriction is absurd. I hope that the Government will consider my concerns sympathetically, not least because the Minister is a lawyer.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I know that this was not the motivation behind the amendment, but there is a difficulty in the Liberal Democrats' amendment that says more than the amendment itself. For years I have advocated the return of justice in terms of devolution to the north of Ireland on the grounds that devolution will only grow up and be what it should be when it can take control of the most important element of its existence. That is risky; so risky that I almost adduced serious trouble, with my party and otherwise. But my views have not changed. The more I see of devolution the more I am convinced that it will only be dynamic when it takes that responsibility.

I want to put my views in those terms. It may soften some of the things I want to say, but also ameliorate some of the others. Let us consider the three points under subsection (5). Where five people are to be nominated by the Lord Chief Justice under subsection (5)(a), there could be no suggestion that any lack would be politically motivated. Subsection (5)(b) proposes that a barrister should be nominated by the General Council of the Bar of Northern Ireland. The Bar of Northern Ireland would not make a political nomination. Nor would the Law Society of Northern Ireland, nor indeed would the Lord Chancellor; he would not dream of it.

The two people who will be charged with that under the terms of amendment No. 140, the First and Deputy First Minister in the Administration of the north of Ireland, whoever they are at that time, cannot be trusted, so the share of the power is split and and given to the Secretary of State. He would not dream of making a politically motivated decision.

There is a problem, although I accept that that is not the intention. I accept that many people in all parts of the community in the north of Ireland have good grounds for fearing the return of responsibility for justice. The provision is one way of dealing with that fear, but I suppose that that is how things will be for some time. The view is that the great and the good would never make political appointments, but those

who are elected by the people of the north of Ireland cannot be trusted not to do so.

Something is out of balance, although again I accept that that is not intended. I also know that this point will raise hackles: there are no non-political organisations in the north of Ireland. Are there any non-political people there? If there are, I do not know them and I have lived there for 66 years; perhaps one day I will meet them. We are now getting to the heart of one of the problems, which is that politics has been frowned on in Northern Ireland. How often have those of us who come from there heard people say of someone, ''He was a decent man. He never had anything to do with politics''? I am sure that that has been heard here, too.

I believe that appointments, from wherever they come, always have a political connotation. However good, noble and learned the person who makes the appointment, no one, especially in Northern Ireland, will believe that it does not have a political tinge. The reason is that, almost by definition under the Good Friday agreement and the legislation, action is required to ensure that appointments are representative. That is what the First Minister, Deputy First Minister and the Executive are about. It is a cumbersome system, but that is what representativeness is.

When the Law Society and the Bar Council come to appoint the person, they will consider what the other appointments might be, so that they will balance. The First Minister and the Deputy First Minister—God love them—will have to consider the numbers, because people will be required to represent various sections of the community. That is inevitable. It may not be the ideal way or what people would want, but that is how it is.

We should have the confidence not to hedge our bets on devolution. We should have the confidence in ourselves as people to take the responsibility and share it honestly, justly and openly. I think that that will happen in the political process. I do not know whether it will happen in other parts of the nominating structures, but at least if the First Minister and Deputy First Minister do not act fairly, that can be dealt with. With that accountability goes representativeness. I use that term guardedly, because whatever way the numbers go, representativeness will be required.

I am worried about the implication that, if we were to add one to the number of judicial appointments and subtract one from the number of lay appointments, we would somehow get a better mix. I am worried about the thought behind that, because of the use of the phrase ''type of person that we would want to appoint to such a commission''. The type of person that I should like to appoint would not necessarily have a legal background. Those with a legal background are probably part of a legal establishment that is very protective of itself. They might even be deputy county court judges, for example. Many people in the north of

Ireland have no legal background. They have integrity and common sense and would be able to make decisions justly and fairly. That is crucial. It is a vote of confidence in ourselves that we can be fair and just and do things properly.

Tony McWalter (Labour/Co-operative, Hemel Hempstead)

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?

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

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.

Edward Garnier (Conservative, Harborough)

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.

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Crispin Blunt (Conservative, Reigate)

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

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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

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.

Sylvia Hermon (UUP, North Down)

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?

Des Browne (Labour, Kilmarnock and Loudoun)

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

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.

Edward Garnier (Conservative, Harborough)

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—

Des Browne (Labour, Kilmarnock and Loudoun)

Or Zimbabwe.

Edward Garnier (Conservative, Harborough)

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

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Edward Garnier (Conservative, Harborough)

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

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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.

Crispin Blunt (Conservative, Reigate)

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?

Des Browne (Labour, Kilmarnock and Loudoun)

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

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.

Sylvia Hermon (UUP, North Down)

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.

Des Browne (Labour, Kilmarnock and Loudoun)

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

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

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

The Minister was asked an interesting question. I cannot imagine the First Minister and the Deputy First Minister agreeing about everything—that is an understatement.

A more fundamental point arises. Devolution in justice will not take place unless it has cross-community support, not just from two people, one called the First Minister and the other called the Deputy First Minister, but from the entire political system. Such support will not arrive on a wing and a prayer. People will want to know exactly what devolution entails before they give that cross-community support. Therefore, I imagine that there will be a long process of negotiation during which such matters will be worked out.

However, the Minister is right to say that the First Minster and the Deputy First Minister will appoint—

Peter Pike (Labour, Burnley)

Order. Interventions must be brief.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

—huge numbers of people. They thought that they could not appoint four lay people to the commission. The mind boggles.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to my hon. Friend. Members of the Committee will appreciate the value of his contribution, in view of his experience.

I want to draw my remarks to a conclusion, because the hon. Member for Montgomeryshire deserves more detailed criticism of the amendments. My interpretation is that the review was anxious to ensure that Assembly members were not appointed as lay members of the commission, and that has been provided for in paragraph 19 of schedule 2. We have been faithful to recommendation 80 in allowing the First Minister and the Deputy First Minister to

secure the appointment of lay members through procedures in accordance with the guidelines for public appointments—

that is, the normal procedures. It is not appropriate to put in statute the requirement to follow normal procedures; they will apply in any event.

Another criticism of the hon. Gentleman's approach is that it betrays a surprising mistrust of the procedures that we are setting up, which will come into force after devolution, and will require some confidence in the devolution process. I know what his views on devolution are, and I am surprised that he has that regrettable lack of confidence. We do not believe that the First Minister and Deputy First Minister, acting jointly, would appoint inappropriate lay members, nor that the Lord Chief Justice would appoint inappropriate judicial members. If we had as little confidence as the hon. Gentleman has in the proposals, we would not propose a Judicial Appointments Commission or work towards devolution in criminal justice matters at all, let alone to a target time of after the Assembly elections in 2003. We are confident that we have implemented recommendation 80 correctly.

Through amendment No. 6 the hon. Member for Reigate and those supporting him seek to stipulate that a deputy county court judge shall be one of the

judicial members of the commission. If I understood him correctly, he prays in aid, with some support from the hon. and learned Member for Harborough, the number of members, which is 40. However, that would go against the review, which recommended one judicial member from each tier of the judiciary, and carefully balanced the number of legal representatives against the number of lay representations. Although the review took a broad brush and did not intend to be prescriptive, it was. Deputy county court judges are not a separate tier, any more than temporary judges of the High Court are a separate tier. They are referred to in the list in schedule 1—as, for that matter, are deputy resident magistrates, who are referred to in the Bill under their proposed new title.

The Government have been faithful to the review's recommendations, in that the list to which the hon. Member for Reigate referred includes an appropriate member of each tier of the judiciary, including the lay magistracy, to reflect the commission's recommendation. To be consistent with his arguments on representation based on the list, we would have to find not one more, but at least three more, representatives, because the temporary High Court judges are the same as the deputies that he seeks to include, and the deputy registered magistrates are no different in their relationship to their tier. I therefore invite the hon. Gentleman to withdraw the amendment.

Crispin Blunt (Conservative, Reigate)

This is an important issue because, although the Minister has spoken about the need for different perspectives in the make-up of the Judicial Appointments Commission, the most important perspective is judicial because it is the profession that should have the most important knowledge of the appropriate people to promote. In view of the number of people available for appointment, especially at the higher levels, the number of positions that are available for appointment and the small size of the pool from which people are drawn in Northern Ireland, it would establish the principle of independence and merit if the judicial members of the commission had more influence. It is wrong that there should be five judicial members under the chairmanship of the Lord Chief Justice, which in effect makes six, and five lay members.

The Minister has chosen to include the members from the legal profession with the judicial members for the purposes of his arguments, which is unfair. The judiciary should have the most influence within the commission on which of its members should take up the appointments, which is why the balance of the commission is wrong. Too often our reflex response is to say that lay members must be good by definition because they are independent and supply additional qualities that a profession cannot bring. Given the appointments system under the First Minister and Deputy First Minister, it is especially important that the commission is rebalanced as I propose.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I share the hon. Gentleman's view that professional expertise is invaluable, but what has led to this situation whereby there is not a single female judge or person from an ethnic group? That is the

structure that the hon. Gentleman admires so much, and that I have admired so much. We must make the fundamental changes that have to be made.

Crispin Blunt (Conservative, Reigate)

I have some sympathy with what the hon. Gentleman says about outcomes. Of course everyone would want all the professions, of which the judiciary is the most important, to try as far as possible to reflect the community that they serve. However, the most important principle, as the review acknowledged, is merit. That must take priority over requiring the judiciary to be representative—which the Bill does not invite us to do.

In taking us forward to the debate on amendment No. 9, the Minister misrepresented the arguments that I will use. I tabled the amendment to address some of the concerns that the hon. Member for Newry and Armagh has just expressed.

This is an important issue, and I shall press amendments Nos. 2 and 4 to Divisions on the assumption that if amendment No. 2 is accepted I shall wish to continue with amendments Nos. 3, 4 and 5. It is a matter of principle that judicial members should have a greater weight on the commission.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

In my definition, ''lay member'' means not a professional. I am not convinced that people who are expert or highly professional in their trade would be regarded as lay members. However, having had the argument, we shall all have to make our own decisions.

Not satisfied with rejecting my offer of assistance on the previous group of amendments, the Minister now chooses to reject the offer of extra power for the Secretary of State for Northern Ireland. This is the political revolution that we have been waiting for from a Government who claim to be inclusive. I only hope that it will spread like wildfire throughout their ranks, so that when the Prime Minister looks around aghast at all the power that is being given away to others and says, ''Where did this begin?'', we can point at the Minister and say, ''He started it.''

The Minister said that I must be feeling fairly lonely. I have heard it said that it is sometimes necessary to be right and yet to feel as if one stands alone. This is not one of those occasions.

As the Minister rightly deduced, our efforts with the amendment were based primarily on the need for the review strategy to ensure that appointments and political influence are clearly separated. As the hon. Member for Newry and Armagh said, the structure proposed in the Bill leads inevitably to the prospect of a degree of political influence in the matter of appointments. That does not necessarily make it wrong, given that that is no different from the way in which many appointments are made at Westminster and elsewhere.

The inference is that if on some future occasion we find ourselves debating the issue in the House, with great concern expressed about the decisions made by a future First Minister or Deputy First Minister, we will

not have a right to complain. That is the consequence of the decision that we are making on devolution. We must clearly understand that we are importing into the arrangement in Northern Ireland the same danger of political appointment as exists here in the Palace of Westminster.

Seamus Mallon (Social Democratic and Labour Party, Newry and Armagh)

I simply ask whether that might not be a much more honest approach. Should we not recognise the differences that exist, rather than making the assumption that is made elsewhere, that no political influence is used in legal appointments? Would that not be much more honest, healthy and dynamic than hiding behind the notion that somehow or other, if senior judges do something there are no political implications?

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Gentleman makes a crucial point. I think it genuinely beneficial to have on the record the fact that we accept the dangers that he has acknowledged, and which I, too, raised. If that is what we want, we should then make a positive decision to treat like with like and accept the potential consequences at some future point. Although I am concerned about how long we are taking to debate these amendments, given the other business that we have, the feeling of the Committee seems pretty clear, and it therefore seems to have been a worthwhile debate, although I accept that the amendments as they stand were open to the criticism that they have received.

As I listened to the speech of the hon. Member for Newry and Armagh—I mean this completely genuinely—I remembered why I am occasionally so impressed with our Committee structure. The hon. Gentleman added genuine value to the debate, highlighting the issues that we have discussed from a position of experience. That is the priceless quality of a Committee such as this, when it works effectively. I want to thank him for providing a clarity that has deepened my understanding of a point that I had only grasped implicitly. Now I grasp explicitly the point about accepting the danger of the structure but not necessarily rejecting the structure as a consequence of that danger.

My conclusion from our debate is that devolution does not take away the risk. Devolution requires a cost-benefit analysis and a risk analysis, but at the end of the day, although we are conscious of the risks that we take, we should not expect the devolution settlement to eliminate something that, in 1,000 years of Parliament, we have failed to eliminate here. Although I shall withdraw the amendment, I hope that we have achieved something that I did not really expect from these amendments: a deeper understanding of the consequences of what we are doing here. I hope that in the light of the debate, we will bear that valuable insight in mind as we seek to maintain the balance between providing the Assembly with the powers that it deserves and acknowledging that that sometimes requires us to take a few risks. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 2, in page 2, line 29, leave out ''five'' and insert ''six''.—[Mr. Blunt.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 16.