Justice (Northern Ireland) Bill

Public Bill Committee, 31 January 2002.

Standing Committee F

Justice (Northern Ireland) Bill

Peter Pike (Labour, Burnley)

Before we resume the debate, I should inform the Committee that a revised selection list has been placed in the Room. The only substantial change is that amendments Nos. 171 and 172 to clause 27 have been selected for debate.Schedule 2 Judicial Appointments Commission

Schedule 2 - Judicial Appointments Commission

Des Browne (Labour, Kilmarnock and Loudoun)

It seems to be the pattern that I am speaking when we adjourn in the morning and that the new Chairman must call on me to continue when we resume.

Crispin Blunt (Conservative, Reigate)

Will the Minister give way?

Des Browne (Labour, Kilmarnock and Loudoun)

Perhaps the hon. Gentleman will allow me to warm up a little.

I was discussing the effect of amendment No. 91 and the Government's reasons for resisting it. To quickly repeat some of the arguments, the amendment relates to the provisions for dismissing lay members of the Judicial Appointments Commission in certain cases and is intended to remove the discretion of the First Minister and Deputy First Minister in that regard. The Government's view is clear, and we expect the First Minister and Deputy First Minister to act. We do not, however, want to impose a duty on them to do so, because several of the reasons for dismissal are matters of judgment and there would remain an element of discretion, with or without the amendment. An element of discretion is built into the schedule, although it might not seem, on the face of it, to apply to two of the criteria—conviction for a criminal offence and bankruptcy—which some would argue are clear-cut. There is, however, an argument for discretion and a need for flexibility even in those cases.

We must trust the First Minister and Deputy First Minister; we should not tie their hands and compel them automatically to dismiss a lay member who has, for example, been convicted of a minor road traffic offence. The schedule contains generic phrases to describe the circumstances that would justify considering dismissal, but a phrase such as ''a criminal offence'' might refer to a minor road traffic offence. We

must bear in mind that we are asking people to take on a difficult and potentially onerous job, and we should trust the First Minister and Deputy First Minister to apply an element of discretion, albeit in circumstances in which dismissal would be appropriate.

Edward Garnier (Conservative, Harborough)

It may be of some reassurance to Committee members if the Minister could clarify how one of the provisions in the schedule might be used. Equally, he could issue practice guidance for the First Minister and Deputy First Minister, although I accept that he does not want to interfere with their discretion.

In any case, paragraph 2(4)(d) refers to someone who

''is otherwise unable or unfit to exercise his functions.''

Someone with a criminal record for dishonesty or violence—and certainly for terrorism—would be wholly unsuited to exercising functions as a member of the commission. Clearly, we would prefer people of that calibre not to get on to the commission in the first place, but will the Minister comment on the use to which paragraph 4(d) will be put?

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. and learned Gentleman for inviting me to list the circumstances, but I do not think that it would be particularly helpful, for the reason to which he alluded—I suspect that he agrees with me. When a statutory discretion is given to people such as the First Minister and Deputy First Minister in the context of devolution, it is not for me, as a Westminster Minister, to issue guidance to them on when they should exercise it. I have repeatedly said that I trust in devolution and I trust the devolved Administration to exercise their judicial functions appropriately. I have no reason to believe that they will not.

The inclusion of the catch-all phrase in paragraph 4(d) is understandable, because of the many possible sets of circumstances that might lead to a person's dismissal being considered appropriate. However, it is not for me to list the circumstances that may apply. By doing so, I may inadvertently give people the idea that my list was intended to be exhaustive, and that any circumstances that I did not mention do not apply. The circumstances should be considered case by case.

In relation to my earlier point, I can think of circumstances in which people could become bankrupt through no fault of their own. Their financial circumstances could be such that the situation was not caused by their own fecklessness, inattention to their own affairs or inability to manage them. For that reason, although it would seem to be a set of circumstances in which discretion ought not to apply, there is value in allowing the First Minister and Deputy First Minister discretion.

Edward Garnier (Conservative, Harborough)

It is good of the Minister to give us an example, but I am not sure that it is terribly helpful, as such a situation is already covered by paragraph 4(c). The Minister must have his own opinions, as an individual—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall give one example of a set of circumstances in which a person would be unable or unfit to exercise his functions. If, for example, a person was so ill that they were unable to attend meetings, it would be in their interest not to be placed under additional pressure by being threatened with dismissal for failure to discharge their functions. If, for example, a person's mental health became such that there were some doubts about their judgment, they might be unable or unfit to exercise their functions.

The same would be true if, for example, a person had to go to Zimbabwe because a relative was ill and had to be cared for, and was going to be away for six or seven months. There are many possible sets of circumstances. To list them does not help our debate about whether the First Minister and the Deputy First Minister should be allowed discretion in the matter.

The bankruptcy example from paragraph 4(c), to which I reverted, shows why I argue that such discretion is needed, even though some of the circumstances seem not to require it. It could be exercised in certain cases involving minor road traffic offences and persons who become bankrupt through no fault of their own. Those are good examples. I trust that that clarifies the matter for the hon. Member for North Down (Lady Hermon). If it does, and she is persuaded that there is a need for that discretion, I hope she will be persuaded to withdraw the amendment.

Sylvia Hermon (UUP, North Down)

I shall disappoint the Minister. I am unable to withdraw the amendment, and for a simple reason—

Crispin Blunt (Conservative, Reigate)

I am glad to hear that, because I listened to the debate between the hon. Lady and the Minister. One can sometimes tell when the Minister has not convinced himself. His reply to the hon. Lady was a good example. That is why I shall support her in pressing the amendment to a Division.

It has not yet been pointed out that someone who has been convicted of a criminal offence or is the subject of a bankruptcy order will have been on the receiving end of justice from someone whom they might appoint. That would be a clear conflict of interest, and the amendment, if accepted, would avoid it.

Sylvia Hermon (UUP, North Down)

I thank the hon. Gentleman for that intervention.

The benchmark against which the Bill should be measured is the Belfast agreement—which some prefer to call the Good Friday agreement. For ease of reference, the aims of the criminal justice system are set out on page 1 of the review of the criminal justice system in Northern Ireland. It states:

''The Agreement set out what the participants to the multi-party negotiations believed the aims of the criminal justice system to be''.

Those aims include having

''the confidence of all parts of the community''.

I am not convinced that everyone in Northern Ireland will have confidence in a Judicial Appointments Commission if a non-judicial member can remain in office when he is unable or unfit to exercise his

functions. I repeat that the First Minister and Deputy First Minister should be under a duty, rather than have a discretion. That would build the community's confidence in the commission.

Des Browne (Labour, Kilmarnock and Loudoun)

What would happen if a person was unable or unfit to exercise the functions for a limited time? Should he be dismissed, or should an element of discretion be allowed? For example, would it not matter if he was unable to exercise his functions for three weeks, but might it matter if it was for five months? Should a person be dismissed if he accumulated an automatic conviction for careless driving?

Sylvia Hermon (UUP, North Down)

I thank the Minister for that challenging intervention. I think that his point about a person being unfit for a period of time is dealt with in paragraph 2(4)(a), which provides that a non-judicial member may be dismissed if

''he has without reasonable excuse failed to exercise his functions''.

If he has a reasonable excuse for being unfit or unable to exercise his functions, it is covered; but to say that someone convicted of a criminal offence can sit on the commission does not inspire me with confidence.

Edward Garnier (Conservative, Harborough)

I not only agree with the hon. Lady, but I can take her argument a little further. The Minister's example of someone with a driving offence is hardly to the point. As it happens, some members of the English and Welsh judiciary have been caught speeding; indeed, in the past—I cannot comment on the present bench—one or two have had drink-driving convictions. There is a distinction between the motoring offences that the Minister is trying to palm us off with and the sort of serious criminal offences that the hon. Lady and I are concerned about. It cannot be beyond the wit of man, woman or civil servant—let alone Ministers—to draw up a form of words that distinguishes—

Peter Pike (Labour, Burnley)

Order. Interventions should be brief.

Edward Garnier (Conservative, Harborough)

This one will be.

Peter Pike (Labour, Burnley)

I do not think that it is brief, and I ask the hon. Gentleman to bring it quickly to a close.

Edward Garnier (Conservative, Harborough)

Thank you, Mr. Pike.

It cannot be beyond the wit of people in the Room or outside it to draw up a form of words that distinguishes between minor offences and serious offences that contradict the criminal code.

Sylvia Hermon (UUP, North Down)

I thank the hon. and learned Gentleman for that helpful intervention. I agree entirely with what he said and I invite the Minister to comment.

Des Browne (Labour, Kilmarnock and Loudoun)

I do not intend to rise to the bait of the suggestion by the hon. and learned Member for Harborough (Mr. Garnier) that we should discuss an amendment other than the one that we have before us—and a prospective amendment at that. There was a lot of nodding when the hon. Lady referred to paragraphs 2(4)(a) and (d) as covering the same

circumstances. Before she closes, let me point out that paragraph 2(4)(a) refers to the past and paragraph 2(4)(d)--the one for which I was asked to give examples--refers to the future.

Sylvia Hermon (UUP, North Down)

I stand corrected by the Minister—for a change.

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

I want to make two observations. I speak from memory, but I think that, at a certain point, some 190 people were convicted under the Northern Ireland (Emergency Provisions) Act 1991 for having parked cars in security-controlled areas. Those people had committed criminal offences under emergency anti-terrorist legislation.

Peter Pike (Labour, Burnley)

Order.

Sitting suspended for a Division in the House.

On resuming—

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

I was making the point—I hope that the situation has changed, and it may have done—that an inordinate number of parking offences in security zones have been rescheduled. They were terrorist and criminal offences. The question is how the amendment deals with them.

My second observation is that, whatever is written into legislation, the matter will be ultimately determined by the parties from which the First Minister and Deputy First Minister come. As things are, I have every confidence that good sense will be shown at all times in appointing people and removing them when need be.

Question put, That the amendment be made:—

The Committee divided: Ayes 8, Noes 13.

Patsy Calton (Liberal Democrat, Cheadle)

I beg to move amendment No. 150, in page 72, line 35, leave out from 'background' to end of line 36.

The amendment is probing, and I suspect that we shall withdraw it if the Minister is happy to answer our questions. It is designed to ask why the annual report must include information about which part of

Northern Ireland applicants to the commission regard themselves as being most closely associated with. Our suspicion is that the provision is meant to deal with applicants being too closely centred on Belfast, and it would help if we knew whether that was the case. If it is, there should be an outreach programme to other parts of Northern Ireland.

Edward Garnier (Conservative, Harborough)

I want to ask a brief question about information in the annual report. It has some bearing on the amendment. Paragraph 5(2) states:

''Each annual report must include information about the persons who have applied to be...selected to be appointed''.

Many people who apply to become a judge but fail may not want their application to be known about, for all sorts of perfectly proper professional reasons. For example, a solicitor in practice with partners will not necessarily want them to know that he has made such an application until he is appointed. Equally, a member of the Bar may be somewhat wary about letting his clerk or professional clients know that he has applied. That is a simple but important point.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. and learned Gentleman is right; the point is simple but important, which is why it is covered in paragraph 5(4). It states that

''an annual report must not identify any person or include information from which the identity of any person could be readily ascertained''.

I am sure that that adequately covers his point.

I shall answer the question posed by the hon. Member for Cheadle (Mrs. Calton) in as few words as possible, because I am conscious of the time and know that hon. Members want to make progress. Indeed, it has been urged upon me that we should do so.

There is deep concern that some parts of Northern Ireland feel under-represented in public bodies. We recognise that the concept of trying to collate information about which part of Northern Ireland people consider themselves to be most closely associated with is difficult, but the provision is an attempt to do so in the context of the report. We want to collect information to see whether there is a factual basis to support the concern, and if necessary to take steps to address it.

I hope the hon. Lady is satisfied with that and will withdraw the amendment.

Patsy Calton (Liberal Democrat, Cheadle)

I am happy with the Minister's answer, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 92, in page 73, line 33, at end insert—

'(3A) Committees may not include persons who would not be eligible to be members of the Commission.'.

It may help Committee members if I draw their attention at the outset to the fact that the Judicial Appointments Commission can, under paragraphs 11 and 12,

''delegate any of its functions . . . to any of its committees''.

That includes the appointment of the judicial offices listed in schedule 1, such as, most regrettably, High Court judges. Those committees can in turn delegate those functions to sub-committees. Given the time we

rightly spent this morning scrutinising the composition of the Judicial Appointments Commission, it might come as something of a surprise to the Committee to note that under paragraph 8(3),

''A committee or sub-committee may consist of or include persons who are not members of the Commission.''

We have spent a great deal of time considering the Judicial Appointments Commission and I find it incredible that those committees need not even consist of commission members.

Although, to my regret, amendment No. 93 was not selected for debate, the Minister must, surely, accept its substance. As matters stand, people with criminal convictions can be appointed to the committees. Is the Minister telling the Committee and the Northern Ireland community that he concedes that criminals have a role to play in the judicial appointments process?

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

I was advised this morning that a matter that I wanted to raise might be better raised under the amendment that we are now considering. I shall take that advice, unless you, Mr. Pike, countermand it.

As the hon. Member for North Down mentioned, under the Bill it would be possible for a sub-committee of the judicial appointments commission not to consist of any members of the commission set up to appoint the judiciary. That seems incredible. I have sought advice about whether I have been reading the sub-paragraph properly and I believe that I am correct. I note that the hon. Member for Reigate (Mr. Blunt) has tabled a relevant amendment, too. The provision means that we have spent a long time in productive debate on the Judicial Appointments Commission, but that in theory none of its members would have to be on the committee that would appoint the judiciary. That seems wrong, to put it mildly.

I referred to the matter briefly this morning but want to reinforce it, because the proposal would be untenable in new legislation. I thank the hon. Lady for raising it again, because it is a valid point.

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

I want to speak in opposition to the amendment. I am a member of the European Informatics Market Group, dealing with matters of information technology.

If the committee as constituted found that some area of expertise needed to be incorporated into the judiciary, but that the relevant expertise was not available to the committee in its normal sittings, it might well want to get people to advise it on the subject in question. I have in mind particularly the fact that much crime can be organised or carried out using information technology. That could significantly change people's conception of their job in this context. I give that example simply to show how a body can be set up with particular expertise, but can then find that the expertise it needs is mainly outside its structures. It would need to amplify its expertise base to deal with those complex matters. For that reason, among others, I would want the amendment to be withdrawn.

Des Browne (Labour, Kilmarnock and Loudoun)

As paragraph 8(3) may be discussed in this debate, I shall address those points by dealing with that provision first.

My hon. Friend the Member for Newry and Armagh (Mr. Mallon) referred to the matter this morning, and I confirmed his interpretation of the provisions in the schedule. He used the word ''theoretically''—but practically, and in every other way, the provisions will give the result that that my hon. Friend suggested.

I assure my hon. Friend the Member for Hemel Hempstead (Mr. McWalter) that the structure of the schedule recognises the necessity, in certain circumstances, to co-opt expertise, which is why it allows people who are not members of the commission to be members of committees. We recognise that additional experience, information or skills, which members of the commission may not have, may be necessary in making a decision—although the provision is not as sophisticated as my hon. Friend suggested.

Lady Hermon rose—

Des Browne (Labour, Kilmarnock and Loudoun)

If the hon. Lady will hold off, I am sure that she will hear a response to her main point.

The schedule was drafted in this way because some judgment had to be made about the commission's workload and the ability of a commission of such a size to do that amount of work. The Government had to take the view that it would be unfair to ask people to devote an unreasonable amount of time, especially those who were members of the judiciary--one or two of them might be senior members of the judiciary. A judgment had to made about that and, on that basis, we decided that committees or sub-committees might be needed. More work has been done in that area and, although I cannot give precise figures as to how many vacancies the commission will have to consider, I can tell the Committee that we are now inclined to think that the degree of flexibility in the provisions will not be necessary.

I accept that there is worth in the argument that members of the commission should take the lead in the committees and sub-committees. However, it is important to retain flexibility so as to be able to bring in expertise that may be required, as my hon. Friend the Member for Hemel Hempstead said, given the full range of appointments for which the commission has responsibility. I see so many nodding heads that I think that the Committee now agrees that that is the right approach.

My hon. Friend the Member for Newry and Armagh proposed a simple solution. I have not been a Minister for long, but I have enough experience to know that the simplest solutions are often the most dangerous. His solution is deceptively simple—it cannot be right. Therefore, I ask the Committee for time to consider the issue, so that an appropriate amendment may be introduced on Report that deals with the matter and reflects the views shared in the Committee.

If the hon. Member for North Down is satisfied with that, it will save the Committee time, because I might not need to deal with her amendment. However, if she still thinks that her amendment has worth—never mind an amendment of sub-paragraph (3)—I shall go on to describe its effect, which may not be what she believes it to be.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister giving way and the contribution made by the hon. Member for Hemel Hempstead.

I welcome the fact that the Minister will review the composition of the committees and sub-committees. There is no difficulty in bringing expertise into a committee on which members of the Judicial Appointments Commission sit. The difficulty is that those committees or sub-committees might consist of non-members of the Commission. The entire—

Peter Pike (Labour, Burnley)

Order. This is supposed to be an intervention. I call the Minister.

Des Browne (Labour, Kilmarnock and Loudoun)

Perhaps I should be comprehensive. I have taken on board the criticism of that provision, which is shared by those who have spoken and others who have not articulated it. I undertake to table an amendment on Report to deal with it and to reflect the position of the Committee.

I insist that the structure of committees and sub-committees allows the co-opting of expertise—in particular from tiers of the judiciary that are not represented on the Commission—where necessary. A number of legal office holders from such tiers would not be able to sit on committees or sub-committees if the amendment were agreed. That could lead to the unfortunate situation in which a committee or sub-committee might be considering an appointment to a tribunal, and tribunal members would be barred from sitting on that committee because they were not eligible to be members of the commission. The provision, amended as I hope to amend it, will exclude circumstances in which a committee can be made up only of non-commission members. We shall still need the flexibility to bring in people who would otherwise be ineligible. The amendment would have an inadvertent and accidental consequence, which I do not think the hon. Member for North Down would want, so I ask her to withdraw it.

Andrew Turner (Conservative, Isle of Wight)

I have been trying, with the assistance of my hon. and learned Friend the Member for Harborough, to ascertain whom the amendment would cover.

Des Browne (Labour, Kilmarnock and Loudoun)

With respect to the hon. Gentleman, had he been paying attention rather than seeking assistance from his colleague, he might have heard the answer. The amendment only impacts on people who are ineligible to sit on the commission. By process of elimination, those people are, broadly, from the tiers of the judiciary that are not eligible to sit on the commission. Because it might be appropriate and desirable for people from one of those tiers to bring their experience to a committee, the Government resist the amendment.

Sylvia Hermon (UUP, North Down)

I thank the Minister for that explanation, which was very helpful. I take it that he has addressed both my points—

Des Browne (Labour, Kilmarnock and Loudoun)

Absolutely.

Sylvia Hermon (UUP, North Down)

I thank the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 36, in page 74, line 10, leave out paragraph 12.

When I read this provision, I thought that it was odd that there was a duty to have a lay member, but no duty to have a judicial member or someone who was eligible to be a judicial member. It seemed to be an unnecessary limitation on the commission's means of deciding how its committee structure would work. In the end, the commission will, through its membership, be responsible for all judicial appointments. Although I understand that, in today's environment, there is a need to involve lay members, that requirement is met by the totality of the commission, whose lay members—the Committee has agreed—should have no legal qualification. The requirement is too detailed to appear in the Bill, and it should be for the commission to sort out its committees and sub-committees and to take responsibility for the results of their work. The requirement for lay membership is met by the totality of the commission's membership, and the schedule imposes an unnecessary restriction on the commission's work.

Des Browne (Labour, Kilmarnock and Loudoun)

The reason for the Government's attention to lay membership and for the provision that we eventually included in the Bill has its roots in the review. Paragraph 6.105 recommended that panels should always include a lay person where an appointment was being considered at deputy resident magistrate level or above. The review introduced that idea into the Government's thinking, but my view was that it should be applied more generally and, in particular, driven down the appointments process. Lay people may be appointed to exercise judicial functions lower down the system, and it seemed important to involve a lay person in the appointments process through the committees and sub-committees.

I see that the hon. Member for Reigate is underlining other parts of the recommendations—perhaps he should have done that before. In any event, I shall come to those in a moment. As I was saying, it seemed equally important to have lay involvement both where lay persons were being asked to carry out judicial functions and where people were being appointed to senior posts. That is why the provision is important.

Paragraph 6.105 also stated that a member of the judiciary should be included. In all probability—in fact, almost certainly—the commission will appoint a member of the judiciary to all the committees, but I have included the provision to ensure that a lay person is appointed, too. That is the simple answer to the hon. Gentleman's question, but if it does not satisfy him, he can press his amendment, although that would be

unfortunate given that it neither reflects the recommendations nor insists that a member of the judiciary be included.

Crispin Blunt (Conservative, Reigate)

The Minister cannot have it both ways. If he is going to rely on the review, the schedule should insist on a member of the judiciary being included. Paragraph 6.105 states that the panels

''would always include at least one member of the judiciary at the tier to which the appointment was to be made and a lay person.''

The Bill should contain a similar provision or no provision at all, and I seek to give the commission flexibility by striking the provision out in its entirety. We know the circumstances in which the review reached its conclusions and made its recommendations, and it is unreasonable for the Minister to cherry pick the bits that he likes and to rely on the review's recommendation in this instance.

The Committee has already agreed the provisions that establish the commission's make-up, and we should now follow the principle of giving the commission as much flexibility as possible, rather than of being as prescriptive as possible. If the Government are going to be prescriptive, they should be consistent and follow the review. My preference is not to be prescriptive, which is why I would prefer to remove paragraph 12.

I shall not press the amendment to a Division. I simply invite the Minister to reflect on our debate and to go back to his advisers, the Court Service, the judiciary and any others whom he thinks it appropriate to ask, to consider whether it is appropriate to remove that provision.

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

I welcome the fact that the Minister is going to reconsider the matter. I do not believe that the provision can remain in the Bill, because I cannot see how legislation that allows for the creation of a Judicial Appointments Commission can simultaneously provide a system whereby none of those people would be involved in making judicial appointments. I look forward to hearing the Minister's proposals. The point so rightly made by the hon. Member for Reigate would then be reflected in a new approach.

Crispin Blunt (Conservative, Reigate)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 39, in page 74, line 15, leave out paragraph 13.

Peter Pike (Labour, Burnley)

With this it will be convenient to discuss the following amendments: No. 37, in page 74, line 15, leave out 'not'.

No. 38, in page 74, line 18, leave out 'not'.

Crispin Blunt (Conservative, Reigate)

These are probing amendments, designed to ascertain what paragraph 13 means. I should like to know what its practical effect will be. It states:

''The Commission is not to be regarded...as the servant or agent of the Crown . . . or . . . as enjoying any status, immunity or privilege of the Crown.''

The amendments are mutually exclusive. The lead amendment would remove the entire paragraph; the others would reverse the meaning by leaving out the word ''not'', so that the commission ''would be regarded'' as the servant or agent of the Crown. I am anxious to establish precisely what is meant.

Edward Garnier (Conservative, Harborough)

When the Minister answers my hon. Friend's question, will he illustrate it by telling us, for example, who owns the court buildings in the remainder of the United Kingdom? I am not sure whether the Court Service owns property. Do they belong to the Lord Chancellor's Department, or to the Lord Chancellor on behalf of the Crown? Ditto in Scotland. If he is bringing Northern Irish practice into line with that in the remainder of the United Kingdom, we would be a little less worried.

Andrew Turner (Conservative, Isle of Wight)

I have some questions on the implications of paragraph 13. Does the status of a servant or agent of the Crown normally carry with it immunity from prosecution or litigation? In the event of the provision having any effect on that immunity, what would be the judicial authority responsible for deciding cases in which the commission was the subject of legal action? Would it be the courts of Northern Ireland? If not, which court would it be? Knowing the small size of the judiciary of Northern Ireland, it will not be easy to find people able to sit in judgment on the commission if it is the subject of litigation.

Des Browne (Labour, Kilmarnock and Loudoun)

Those who are used to the scale of England may find Northern Ireland and, perhaps, Scotland irritatingly small, but the fact is that, in Scotland and Northern Ireland, we have developed the ability to live with the comparatively small number of people that are there. So, for example, it is possible—something to which the hon. and learned Member for Harborough alluded—for judges in Scotland to preside over litigation that involves other judges. Judges are good at identifying any conflict of interest that disqualifies them from being involved in a case. That is part of their expertise. Every day, judges throughout small communities in Scotland, Northern Ireland and, I suspect, England and Wales, are called upon to exercise the ability to rise above the narrowness of the circumstances. No doubt, repeat offenders appear regularly before judges in comparatively small rural areas and they develop the ability to deal with each case as if the person had no previous convictions.

Members must have faith in our system of justice and believe that it can rise above petty self-interest. Where will jurisdiction lie to resolve litigation in which the Judicial Appointments Commission is involved? That will depend on the litigation. If it is contract litigation—on which it is agreed that jurisdiction should lie elsewhere—it will lie somewhere else. If the Judicial Appointments Commission is involved in litigation, that litigation will probably have to take place in Northern Ireland. I do not see any conflict in judges appointed by a process in which the Judicial

Appointments Commission played a part, as an organ of the state, presiding over that litigation. If there is any specific conflict of interest, I am sure that the judges will identify it and disqualify themselves, and other judges will be found to deal with the issue.

Andrew Turner (Conservative, Isle of Wight)

I appreciate the Minister's reply but I assure him that I, too, come from a fairly small community. However, the chairman of the commission is the Lord Chief Justice of Northern Ireland, who stands in the position of the Lord Chancellor vis-a-vis Northern Ireland. What is the final court of appeal—

Edward Garnier (Conservative, Harborough)

The House of Lords.

Andrew Turner (Conservative, Isle of Wight)

I thank my hon. and learned Friend for that intervention. Does the case have to proceed there via a court that involves the Lord Chief Justice of Northern Ireland?

Des Browne (Labour, Kilmarnock and Loudoun)

I am thinking of a predictable lawyer's answer, such as, ''It depends.'' It will depend on the circumstances of the individual case. I do not want to be prescriptive about the circumstances in which the Lord Chief Justice might need to play a part in litigation that involves the Judicial Appointments Commission. It will depend on lots of things, including the attitude of the other litigants, who may be content to have the issue aired in any particular court with particular judges. The issue will not keep us awake at night; there are far more important issues relating to the Judicial Appointments Commission and other parts of the justice system. I hope that I have given the hon. Member for Isle of Wight (Mr. Turner) a fair answer to his fair question.

The hon. and learned Member for Harborough asked who owns the court property. I shall write to him about that, but I fail to see the relevance of the question to the issue of the Judicial Appointments Commission. I do not think that the commission will own any of the court property. He may have been thinking of another issue, but I will undertake to write to him about the ownership of buildings in the rest of the United Kingdom and whether or not things are the same in Northern Ireland. However, nothing in this part of the Bill will affect that.

Edward Garnier (Conservative, Harborough)

I asked the question only because the Minister seemed to be in some confusion and I wanted to help him. Paragraph 13(2) states:

''The Commission's property is not to be regarded as property of, or held on behalf of, the Crown.''

I appreciate that the commission may not be the owner of court buildings, but it will presumably have an office.

Des Browne (Labour, Kilmarnock and Loudoun)

I suspect that as the hon. and learned Gentleman asked that question, he realised what the answer was. The commission's property will belong to the commission alone. That is what we should be concerned with. If the commission chooses to establish an office in a court building, that office will not be its property. I am not confused. I understand the relevance of property to the Judicial Appointments Commission. If the hon. and learned Gentleman

thinks that the ownership of the courts is of some relevance and wants to satisfy himself about who owns them, I will undertake to write to him on the matter. However, with respect, I do not think that it is at all relevant.

The immunity that Crown status would attract includes immunity from prosecution and in respect of other matters involving the application of statute law. I do not have an exhaustive list of those matters—in case anybody asks—but they have grown up over the years around the Sovereign. The provision that the hon. Member for Reigate seeks to remove has been included because we consider that the new body should not attract that set of immunities.

It is extremely unusual—I have not been able to find any examples, but I am told that there may be some—to create a public body and treat it as an agent of the Crown. The Bill's provisions reflect those governing other bodies such as the Police Complaints Authority and Data Protection. All public bodies that are set up in this fashion are specifically excluded from Crown status. If they were not so excluded, provisions in relation to matters such as litigation, property law and employment law would be hindered in an inappropriate manner. That is the answer and I hope that the hon. Gentleman is satisfied and will withdraw the amendment.

Crispin Blunt (Conservative, Reigate)

I am grateful to the Minister for his explanation and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 40, in page 74, line 38, leave out paragraph 18.

The amendment concerns the principle of devolution. If judicial appointments and the whole judicial system are to be devolved to Northern Ireland, it will be consistent for members of the Legislative Assembly not to have a role on the Judicial Appointments Commission. When those functions have been devolved by this House, the Legislative Assembly will have a role in exercising them through its direct election of the First Minister and Deputy First Minister, whose role in the judicial system will be extensive. Furthermore, it strikes me as odd that a Member of this House should be disqualified from serving on the Judicial Appointments Commission.

Let us consider the example of the hon. Member for Newry and Armagh. If my amendment were adopted, he would be disqualified by virtue of his membership of the Legislative Assembly. If, however, he ceased to be an MLA, but retained his membership of this House, I cannot think of a finer person to serve on the Judicial Appointments Commission. The hon. Gentleman would have the confidence of the whole community of Northern Ireland. As a Member of this House, he would not have a role in the judicial system, except in the most peripheral way in terms of the relationship of the Lord Chancellor with the judicial

system in Northern Ireland. It would be a pity if we were to disqualify people such as the hon. Member for Newry and Armagh from making a contribution in this way.

Des Browne (Labour, Kilmarnock and Loudoun)

I understand the distinction that the hon. Member for Reigate is making, and there is an argument for his view, but it will not surprise him to learn that I do not agree with him. The schedule was drafted to extend the disqualification to Members of Parliament as well as to Members of the Legislative Assembly because, as we have heard already in our deliberations, the review explicitly states that

''there is a greater need than ever to insulate the appointment process from any possible suspicion of political influence; a way of doing this is by creating an independent appointments commission.''

That refers to independence of thought and independence from political interference.

We have gone to appropriate lengths, in drafting the schedule, to create that political independence. Although I understand the distinction between Members of the Legislative Assembly and Members of Parliament, with respect to where they are elected to sit, I have observed no difference in politics between Members of the Legislative Assembly and Northern Ireland Members of Parliament from the same party. Removing, or at least cutting a major hole in, the political independence that the review advocated, by allowing Members of Parliament on to the commission, would lead to political mischief, or at least the suspicion of it. Those appointments would not retain the confidence of the people of Northern Ireland because it would not be apparent that there was political independence.

The amendment is unacceptable and I ask the hon. Gentleman to withdraw it.

Crispin Blunt (Conservative, Reigate)

I do not accept the Minister's argument in the terms in which he put it. What about Members of the European Parliament or the Council of Europe? They would equally have a role to play. Members of the European Parliament might perhaps be disqualified under schedule 1 to the House of Commons Disqualification Act 1975. I do not know. However, Members of the European Parliament from other countries, such as the Irish Republic, would not be disqualified under those provisions. I simply ask for consistency. If we have a level of devolved Administration, there should be an appropriate cut-off point. I think that the appropriate point is the Legislative Assembly, which has a direct relationship to the devolved system, not to the House of Commons. It is a matter of judgment.

Andrew Turner (Conservative, Isle of Wight)

Will my hon. Friend give way?

Crispin Blunt (Conservative, Reigate)

I shall not give way, if my hon. Friend will forgive me, because I do not want to press the point. The issue merits debate, and I regret that we do not have time to debate it further. It is important in relation to the responsibilities of Members of the

House of Commons within the devolved structure of the United Kingdom, and important philosophical points should come from debating it. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 4 - Appointment to most senior judicial offices

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 94, in page 3, line 19, leave out

'First Minister and deputy First Minister;'

and insert 'Lord Chancellor'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take the following amendments: No. 95, in page 3, leave out lines 20 to 22.

No. 10, in page 3, leave out lines 23 to 27.

No. 96, in page 3, line 24, leave out

'First Minister and deputy First Minister'

and insert 'Lord Chancellor'.

No. 97, in line 26, leave out 'they' and insert ', the Lord Chancellor'.

No. 98, in page 3, line 26, leave out 'their' and insert 'his'.

No. 11, in line 27, after 'him', insert

'subject to the approval of the Assembly.'.

No. 12, in page 3, leave out lines 28 to 33.

No. 99, in page 3, line 28, leave out from 'the' to 'determine' in line 30 and insert 'Lord Chancellor shall'.

No. 121, in page 3, line 30, leave out 'they are' and insert 'he is'.

No. 122, in page 3, line 31, leave out '(3)(a) they are' and insert '(3) he is'.

No. 123, in page 3, line 32, leave out 'their' and insert 'his'.

No. 124, in page 3, line 32, leave out 'they are' and insert 'he is'.

No. 125, in page 3, line 33, leave out 'they' and insert 'he'.

No. 126, in page 3, line 35, leave out from second 'the' to 'appoint' in line 36 and insert 'Lord Chancellor'.

Sylvia Hermon (UUP, North Down)

Hon. Members will be pleased to know that I intend to be brief. All the amendments that I have tabled to clause 4 relate to the appointment of what are referred to in its title as the most senior judicial offices. Those are the most senior judicial offices in Northern Ireland. First, let us consider the appointment of the Lord Chief Justice and the Lord Justices of Appeal. The procedure under the clause is that the Prime Minister, before making a recommendation to Her Majesty, must consult the First Minister and Deputy First Minister. [Interruption.] I hear the Minister sigh.

Des Browne (Labour, Kilmarnock and Loudoun)

No, I am not sighing.

Sylvia Hermon (UUP, North Down)

A sentence in paragraph 6.104 of the review of the criminal justice system addresses the point and struck me as of fundamental importance. It states:

''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process''.

It therefore strikes me as absolutely at variance with that sentence for two MLAs to be given such enormous powers over such senior appointments. Amendments Nos. 94 and 95 would therefore replace the roles of the First Minister and Deputy First Minister with that of the Lord Chancellor. Amendments Nos. 96 to 98 are paving amendments, as are amendments Nos. 121 to 125.

I do not have a specific axe to grind about High Court judges but, as I made clear on Tuesday, I regret that they are not treated in the same manner as the most senior judicial offices. New section 12A of the Judicature (Northern Ireland) Act 1978, which is proposed in the clause, states that in appointing a High Court judge the First Minister and Deputy First Minister—two politicians, two MLAs—must act jointly. The words ''acting jointly'' cause me considerable concern, as they mean that each has a veto on such an appointment.

At the end of our debates on Tuesday, I specifically intervened on the Minister to ask what would happen if the First Minister and Deputy First Minister could not agree on an appointment. The Minister replied:

''Our stock answer would be that we are not planning for failure''.—[Official Report, Standing Committee F, 29 January 2002; c. 68.]

That does not address the nature of the problem.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Lady will be aware that there is a disadvantage in reading the stark words. Those who were not here when I said that will not know that I went on to give her a full answer that was not the stock answer. Perhaps I have lost my ability to be ironic, but that is what I was trying to be.

Sylvia Hermon (UUP, North Down)

I apologise if I misrepresented the Minister. Those were his words, and he went on to identify what would happen under devolution.

On rereading the Belfast agreement—the Good Friday agreement, which was the foundation for the review—I was intrigued by the fact that although it does not ask time and again for the First Minister and Deputy First Minister to act jointly, that has been provided for in subsequent legislation, especially the Bill.

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

I am interested in what the hon. Lady says. In what part of the Northern Ireland Act 1998 is the requirement to act jointly not included, in terms of functions? In what subsequent legislation that involves the functions of the First and Deputy First Ministers does that not apply?

Sylvia Hermon (UUP, North Down)

I have to cast my mind back to the Belfast agreement. My recollection is that on key questions the First and Deputy First Ministers were to act jointly, and that could be added to through the

Assembly. However, I undertake to clarify my recollection of the Belfast agreement, rather than the subsequent legislation.

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

I shall be interested in the hon. Lady's findings. There are 18 references to the functions of the First and Deputy First Ministers in the Bill, all of which are accompanied by ''acting jointly''. I contend that when she re-examines the previous legislation, she will find that it is exactly the same in that respect.

Sylvia Hermon (UUP, North Down)

I thank the hon. Gentleman for developing the argument. If there are 18 provisions in the Bill under which the First and Deputy First Ministers must act jointly before an appointment occurs or something else happens, what will happen in the event of those two politicians failing to agree on, for example, the appointment of a High Court judge? We are considering seven appointments to key positions in the small jurisdiction of Northern Ireland. I simply wish to have the combined role of the First and Deputy First Ministers replaced by that of the Lord Chancellor. It is eminently sensible not to have one politician vetoing the appointment of a High Court judge, and that is what I want the Minister to address. It is not helpful to say time and again that they must act jointly.

Crispin Blunt (Conservative, Reigate)

Since I aspire to the Minister's post, perhaps I can try to answer the hon. Lady's question. I think that it is addressed by Government amendment No. 70. If the First and Deputy First Ministers fail to come to a conclusion, they must make the appointment—[Interruption.] I see that the Minister is shaking his head. I must have read that wrongly. I shall leave that issue and deal with the amendments that are tabled in my name, which relate to clauses 4 and 5.

These amendments are not a significant matter of principle, but I invite the Government to choose between amendments Nos. 10, 11 and 12. Amendments Nos. 10 and 12 would strike out new section 12 (4) and (5) of the 1978 Act so as to remove the duty on the First Minister and the Deputy First Minister to determine the procedure, as yet unknown, that they are to adopt for the consultation process. The appointment will be made by the Queen on the advice of the Prime Minister, so it is far too prescriptive for hon. Members of this House to place a duty on the Prime Minister to consult and then to tell the Judicial Appointments Commission to advise the consultees of the Prime Minister on the procedure to adopt. It is over the top. I am sure that the Government's intention is for that to be a real part of the process, and for it to be as transparent as possible. I assume that that is why it appears in the Bill. The process should achieve transparency by being agreed by the Assembly.

That is the purpose of amendment No. 11, which would make the process subject to the approval of the Assembly, thereby bringing within the ambit of the Assembly the decision on how the process of consultation between the First Minister, Deputy First Minister and the Judicial Appointments Commission on the most important judicial appointments in Northern Ireland should take place. That does not

involve the Assembly in the consultation process, but it is legitimate for it, as the devolved authority in Northern Ireland, to have a say in the procedure, if that procedure is to be laid down in the Bill. I would be happy for the procedure not to be included in the Bill because I believe that that is too prescriptive, but if it is included, the Assembly should have some role in establishing it.

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

I shall make two points, and I shall start by dealing with the point made by the hon. Member for Reigate. Obviously, if and when devolution of these powers takes place, it will become a matter for Assembly input. One would expect that the Department of Justice, as it would then be, would have the same sort of scrutinising committee that other Departments have. That does not fully answer the question posed by the hon. Gentleman, in the sense that the functions of the First Minister and Deputy First Minister are not liable to scrutiny under the Bill. There is an office that deals with the roles of First Minister and Deputy First Minister, which is working well. However, I believe that there is the capacity to ensure that the Assembly is properly acquainted with these matters.

We should not forget that the power vested in the First Minister and Deputy First Minister by the Bill and other legislation is not vested in them as persons but as representatives of the political parties that have been endorsed by the Assembly on a cross-community basis. I sometimes get the impression that people think that the First Minister and Deputy First Minister have absolute rights to do anything at any time. That is far from the truth because there are many constraints on them.

Sylvia Hermon (UUP, North Down)

Paragraph 6.104 of the review states:

''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process.''

Will the hon. Member for Newry and Armagh address that point?

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

I happen to have a less naive view of what is political--I suppose that comes with age. There is somehow a notion that when people don the gown and the wig they cease to be political. The implication of the h Lady's amendment is that the Lord Chancellor would be less political than the First Minister and Deputy First Minister. I do not believe that. I do not believe that anyone in this Room thinks that there is such a thing as an apolitical person, in that almost everything revolves around political beliefs.

Edward Garnier (Conservative, Harborough)

I know what the hon. Gentleman means by the word ''political'', which I think he is using with a small ''p''. All of us, whether or not we are interested in politics, are infected by that adjective to some extent, but to be fair to the Lord Chancellor—I rarely am—his appointments of the judiciary since he came to office in 1997 have been scrupulous. I do not say that only because he made me a part-time judge. His appointments to the High Court, the Court of

Appeal and the House of Lords—and, I dare say, to the county and district courts—have been scrupulous. Neither the present Lord Chancellor nor any of his predecessors have allowed party politics to enter into the appointment process. I am reasonably sure that, were the Lord Chancellor to be given the role that the hon. Lady wants him to have in Northern Ireland, he would behave in exactly the same way. I may wish to develop other points later.

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

By and large, I agree with the hon. and learned Gentleman. The First and Deputy First Ministers have been equally scrupulous in making appointments during the past three and a half years, since the founding of the Northern Ireland Assembly, and I have no doubt that that will continue. I am uncomfortable with the notion that if people from Northern Ireland, especially elected politicians, were to make appointments, there would be some devious plot behind their decisions—perhaps sectarian, or at least some scheme that does not exist elsewhere. That is wrong, and we should avoid such notions. I know that the hon. Lady was not implying that, but the imperatives that are built into the system are such that the scrupulousness that has been identified would be retained. I shall give an example.

Prior to the prorogation of the Northern Ireland Parliament, all our Attorney-Generals had been ex-members or serving members of the Ulster Unionist party who were elected to the Northern Ireland Parliament. I knew a number of them, and I would never suggest that they, when they became Attorney-General, acted in a less that scrupulous fashion. I do not altogether share the view that the Northern Irish people, through their representatives, cannot act in a fair way and cannot rise above the sectarianism that we suffer.

Sylvia Hermon (UUP, North Down)

I have full confidence in the excellent team that we have in the First Minister and Deputy First Minister. I would not want my remarks to be interpreted as critical of them.

In the Scottish legal system—the Minister will correct me if I am wrong—recommendations for judicial appointments are made by the First Minister, and him alone. I am genuinely concerned that at some time in future, the First Minister and the Deputy First Minister, acting jointly—those are the words that concern me—may not agree on an appointment. Ours is such a small jurisdiction that we cannot afford to be without even one member of the High Court. It has only seven judges. I suggest that the Lord Chancellor could fill the gap.

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

I thank the hon. Lady. She is, in effect, suggesting a rewriting of the Good Friday agreement. The reality is that the joint running of Northern Ireland by the Unionist and nationalist communities is at the heart of the agreement. I make no bones about it. We should not be surprised that that fact is reflected in every piece of Northern Ireland legislation, including the Northern Ireland Act 1998, the Police (Northern Ireland) Act 2000, the Bill—almost—and whatever future legislation crops up. Yes, it would be easier—God knows, it would be easier, I know that—

if we did not need there to be agreement between the First and Deputy First Ministers. Without it, however, there would be no Assembly, no Administration and no hope that responsibility for appointing judges would ever return to the devolved Administration in the north of Ireland. That is the price that we must pay, and everything has a price.

Let me expand a little on the practicalities. It is not as if there is an unlimited number of people from among whom choices could be made, but choices are made every day of the week on other matters. The First Minister and Deputy First Minister make decisions about the budget, and decisions are made about the implementation bodies in the context of north-south business. Hon. Members will remember what a hot potato that was, although I say ''was'' because the arrangements are now working. I have no doubt that there will be moments of difficultly when the Bill is enacted, but I also have no doubt that they will be overcome through agreement and compromise, which is the only way in which the process can work. Compromise is not a pleasant word in Northern Ireland, but that is what is needed. Office holders and everyone involved in the Northern Ireland Assembly must recognise that the system will not work at any level unless there is a capacity for compromise. It would be much easier if that were not the case, but then the present arrangements would not exist.

Des Browne (Labour, Kilmarnock and Loudoun)

Let me say at the outset that I shook my head at an inappropriate time earlier and perhaps put the hon. Member for Reigate off giving an accurate response to the question raised by the hon. Member for North Down about recommendations for appointments to the High Court and the tiers below it and to tribunals. I did so because I was considering the Lady's points about appointments above that level, to which the answer would be different because the First Minister and Deputy First Minister do not enjoy the same powers.

Crispin Blunt (Conservative, Reigate)

I am most grateful to the Minister for making that clear. I am sure that the Government Whip heard that explanation and will withdraw the barracking that he gave me. I hope that he will also inform the hon. Member for Cleethorpes (Shona McIsaac) of it when she returns, which might encourage her to sing a little more quietly in future.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman is unduly sensitive this afternoon, and I do not remember any such barracking. He referred to himself yesterday as a hapless English gentleman, so what can one expect? It was his bad luck.

The amendments are interesting because, apart from anything else, they have given us an opportunity to hear from my hon. Friend the Member for Newry and Armagh. My hon. Friend has experience of the dilemmas that we may be posing for the First Minister and Deputy First Minister and of how those can be worked through.

The amendments would turn over to the Lord Chancellor the role that the First Minister and Deputy First Minister play in appointing senior judges. We discussed their role in the process extensively on

Tuesday, and I shall deal specifically with the points that exercise the hon. Member for North Down. In the devolved scenario, we must give the First Minister and Deputy First Minister in Belfast the same trust that we presently extend to the Lord Chancellor in Westminster. As we heard from one of his appointees, that trust is being exercised scrupulously fairly.

The hon. Lady prefaced her remarks by a reference to paragraph 6.104 of the review. She is entitled to do that, and it is helpful for her to remind us of the underlying principle. The principle in that paragraph applies in the context of appointments to the commission. The hon. Lady will have read the review and will understand that the review's recommendations on the role of the First Minister and the Deputy First Minister in senior judicial appointments, to which the bulk of her amendments relate, is covered in the earlier paragraph 6.96.

The review sets out explicitly the role of the First Minister and the Deputy First Minister in relation to senior judicial appointments, and its recommendations are reflected in the Bill. It also sets out their role in relation to the appointment of High Court judges and other tiers of the judiciary, down to tribunals. That is also set out in the Bill. The Bill's provisions are designed to reflect the recommendations of the review. The review sets out the principle of the involvement of the First Minister and the Deputy First Minister, but gives them ex officio roles. The Committee should accept that the one does not contradict the other.

The hon. Member for North Down specifically asked what would happen in relation to appointments from the High Court down were the First Minister and Deputy First Minister not to agree. The Bill's provisions are a reflection of the recommendations of the review in paragraph 6.106. They are clarified by the amendments that the hon. Member for Reigate sought to pray in aid, until he thought that I was saying he was wrong.

It is the Government's intention and hope that the sort of exercise that the hon. Member for Newry and Armagh talked about will be possible and that the First Minister and Deputy First Minister will be able to accept a recommendation from the Judicial Appointments Commission. However, if they are unable to, the matter will be referred back to the Judicial Appointments Commission and they are required to accept the commission's further recommendation.

The stalemate-busting provision sought by the hon. Member for North Down does exist. The stalemate that she anticipates, in which positions are left unfilled, will not occur. She will not find the answers to her concerns in the Bill. The Bill's provisions merely imply that that is the case. However, if the Committee agrees to amendments that I will put before it shortly, it will be made explicit in the Bill. The hon. Member for North Down is right to ask the question and the hon. Member for Reigate is correct to say that the Committee will shortly consider amendments that deal with it.

The hon. Lady's amendments in relation to the First and Deputy First Ministers' role in the process for the appointment of the most senior judiciary are designed to replace them with the Lord Chancellor. We should not overstate the roles of the First and Deputy First Minister. They are important, but not decisive. In relation to the most senior judges, their role is to be consulted on the recommendations to be made by the Prime Minister. The First Minister in Scotland already plays a key and seminal role in senior judicial appointments there, so the Bill's provisions are a reflection in Northern Ireland circumstances of a position that already exists in Scotland.

I have already dealt with the hon. Lady's concerns in relation to the Bill's provisions on the lower tiers of appointment, judicial and otherwise. I trust that she will feel able to withdraw her amendments, having heard my remarks and accepting that I will move the amendments that are tabled in my name later.

Amendment No. 11 proposes that the First Minister and Deputy First Minister clear the procedures for making senior judicial appointments with the Assembly. The hon. Member for Reigate will know that, in my view, the First Minister and Deputy First Minister hold their roles ex officio, not for political reasons. In Westminster terms, it would be unusual for an ex officio position to require the level of scrutiny suggested by the hon. Gentleman. I see no reason to subject a devolved institution to that level of scrutiny if it would not be an acceptable level of scrutiny in the context of Westminster. There is sufficient co-operation with the independent organisation, in the form of the Judicial Appointments Commission, in the drafting of the procedures to ensure appropriate scrutiny. It would be inappropriate to make that process subject to the scrutiny of the Assembly.

Amendment No. 95 would remove the duty to consult the Lord Chief Justice in making senior judicial appointments. My attitude is simple; the Lord Chief Justice is bound to have a valuable and important insight into the candidates who come forward for such appointments. I cannot think of any circumstances in which his opinion would not be sought or in which he would not be consulted about senior judicial appointments, given that he is the most senior judge. In the interests of transparency and openness, we should have that in the Bill and state that it is part of the process, rather than simply taking soundings, which is apparently what happens at the moment. That is why I resist that amendment.

If the hon. Members for North Down and for Reigate are satisfied with that explanation, they may not press their amendments to a Division. My officials inform me, incidentally, that the First Minister in Scotland has a more significant role than the one played by the First Minister and Deputy First Minister in Northern Ireland. However, perhaps we should discuss that on another day.

Sylvia Hermon (UUP, North Down)

Many points come to mind. In regard to the Minister's last point about Scotland, I am concerned that in that case one individual has been given more responsibility.

My chief concern is with the words ''acting jointly.'' The Minister kindly drew our attention to the fact that, under proposed new section 12(3), the Prime Minister may make recommendations only after consultation with the First Minister and Deputy First Minister. However, if he casts his eye at subsection (5), he will note that in that procedure, the First Minister and Deputy First Minister are again ''acting jointly.'' Before considering subsection (3)(a), we should consider the wording of subsection (5) and the words ''acting jointly.''

I do not want to put wind into the sails of the hon. Member for East Londonderry (Mr. Campbell), who I am pleased to see is with us this afternoon. However, in reality, if his party is more successful in the next election, we could end up with a First Minister and Deputy First Minister who had views that were entirely different and polarised. If we are to put judicial appointments into the office of two MLAs who are compelled by the legislation consistently to act jointly, that must be dealt with, and the Minister must face that reality. I propose to remedy that block in a hugely important responsibility by writing in the reference to the Lord Chancellor.

Finally, I took careful note that the Minister said that the clause was designed to reflect the provisions of the review. With the greatest respect, the review has to be compatible with the original Belfast agreement, or Good Friday agreement. That made it perfectly clear that the constitutional position of Northern Ireland was to remain within that of the United Kingdom unless and until the majority of people voted otherwise. It strikes me as a constitutional principle that the Lord Chancellor's involvement in the most senior judicial appointments in Northern Ireland confirms that constitutional link with the rest of the Kingdom. I am not persuaded by the Minister's arguments to withdraw the amendment.

Andrew Turner (Conservative, Isle of Wight)

I have listened with great care to the debate and I am strongly persuaded by the arguments of my hon. Friend the Member for North Down. The Government's thinking on the Bill seems to be wishful thinking. I do not blame them—in many cases, this is related to the implementation of the Belfast agreement—for hoping for the best, working for the best and hoping that others will work for the best. However, the point made clearly by my hon. Friend the Member for North Down is that we cannot rely on that happening indefinitely. The only circumstances in which the clause, unamended, will work will be those in which the First and Deputy First Ministers are willing to work together. We hope that that will continue to be the case. However, neither the Government nor my hon. Friends nor the hon. Member for Newry and Armagh can guarantee that the First and Deputy First Ministers will be willing to work together indefinitely to ensure the implementation of any provision.

By opposing the amendment, the Government are implicitly assuming that there is an alternative scenario in which the First and Deputy First Ministers do not work together. We cannot see a situation in Northern Ireland in which vacancies in the judiciary cannot be filled. There is only one alternative, although the Minister might tell me that I am wrong and that there are plenty. It is that where the First and Deputy First Ministers are from parties that hold more divergent views than do the hon. Member for Newry and Armagh and my hon. Friend the Member for North Down, the Government accept that these elements of the Bill cannot be implemented and have an alternative course of action up their sleeve.

Crispin Blunt (Conservative, Reigate)

I am grateful to my hon. Friend for his suggestion, and for showing sufficient independence of mind to put it forward; I do not agree with him. I agree with the Minister's arguments in this case. Oddly, this is one part of the legislation relating to Northern Ireland that can survive the First and Deputy First Ministers' being in fundamental disagreement. That is because under the procedure prescribed by Government amendment No. 70, they are—as the Minister said—not central to the process; they are non-essential but important consultees.

Strangely enough, the essential point that my hon. Friend the Member for Isle of Wight makes is right. For the Belfast agreement to succeed, the First Minister and Deputy First Minister need to be disciplined and work together. If they refuse to do so, the whole thing will come to a spectacular and grinding halt. That would have consequences for vast parts of the devolved Government and the devolution of justice to Northern Ireland.

If, after the 2003 elections, there is a Sinn Fein Deputy First Minister and a First Minister who represents the same party as the hon. Member for East Londonderry, there may be a problem. They may work together, but we do not know and, as my hon. Friend said, the evidence suggests that it is not entirely likely.

Sylvia Hermon (UUP, North Down)

I ask the hon. Gentleman to check that Government amendment No. 70 relates to the list of judicial offices in schedule 1. I am concerned about other senior officers of the High Court under clause 4. There is a distinction.

Crispin Blunt (Conservative, Reigate)

My understanding of the position is, and if the Minister nods I shall mention that and so put it on record—

Des Browne (Labour, Kilmarnock and Loudoun)

It will be a first.

Crispin Blunt (Conservative, Reigate)

I hope that this time I shall not be misled. So far as the Lord Chief Justice and Lord Justices of Appeal are concerned, the appointments are made by Her Majesty on the advice of the Prime Minister, who is under a duty to consult in the Bill. Although Her Majesty appoints judges of the High Court, the hon. Member for North Down will note that clause 5(2) states:

''Only a person selected by the Commission may be appointed, or recommended for appointment, to a listed judicial office''.

A High Court judge is a listed judicial office. If the Committee accepts Government amendment No. 70, it means that when the Deputy First Minister and First Minister cannot agree and so do not respond to the process initiated by the commission, the appointment will go ahead in the absence of any advice from them.

That deals with the amendment tabled by the hon. Lady, so I regret to say that I am unable to support her. So far as amendments Nos. 10, 11 and 12 are concerned, I have listened to the Minister and the hon. Member for Newry and Armagh, and am still of the mind that new section 12(4) and (5) is unnecessary. However, I do not intend to press the amendment now, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Pike. You were about to introduce clause 5, and the time is now 4.33 pm. You will be aware that, under our programme, the knife will fall—perhaps the right term is ''be inserted''—in 27 minutes' time, by which stage we will have been expected to reach the end of clause 22 and the new clauses relating to part 1. It is plain that we cannot do so and do justice to part 1 of the Bill. There are several important issues yet to be discussed.

So far, the Committee has worked exceptionally hard. I am grateful to the Minister for his care in replying, and it would be an enormous shame and a disservice to the people of Northern Ireland if we were not able to give the Bill proper consideration in Committee.

I want the Government to respond to my point, which is that the Programming Sub-Committee urgently needs to meet so that we can sort the matter out before 5 o'clock, give the Bill the consideration that it deserves and meet the strictures of the House to finish on 14 February.

Peter Pike (Labour, Burnley)

I understand the points that the hon. Gentleman has made. There has been one change to the original timetable, which moved the ''knife'' from 11.25 am to 5 pm. I cannot express a view on the merits of the case. If the Government were minded to consider a motion for a short suspension before 5 o'clock, I could accept it, but otherwise I must adhere to the agreed timetable.

Edward Garnier (Conservative, Harborough)

Further to that point of order, Mr. Pike. Does the Government's timetable, under which we operate, allow you the flexibility to call clauses meant for discussion between now and 5 o'clock out of numerical order?

Peter Pike (Labour, Burnley)

I have no flexibility whatever on that. I have to abide by the motion agreed at the first sitting and the revised motion agreed this morning. I have no power to vary that. I have tried to suggest that it is not for me to express a view on the subject. If the Government were to propose an amendment to the programme motion, I would be prepared to suspend the Committee for a short time to allow it to be

discussed. However, unless there were any prospect of making progress on that, it would merely waste the Committee's time.

Mr. Garnier rose—

Peter Pike (Labour, Burnley)

I hope that the hon. Gentleman is rising to make another point of order, because we are eroding the time available.

Edward Garnier (Conservative, Harborough)

Further to that point of order, Mr. Pike. I can quite see that we are eroding the time. Is it within your powers to take groups of clauses in numerical order in blocks, so that we can more efficiently use the time between now and 5 o'clock?

Peter Pike (Labour, Burnley)

I have to go through the selection list as it is. We can move as speedily as we want. I can call amendments only as they have been selected. If people choose not to move groups of amendments and we move quicker because there are more important matters to debate in the time remaining, that is acceptable. That is in the hands of the Committee, not the Chairman.Clause 5 Appointment to listed judicial offices

Clause 5 - Appointment to listed judicial offices

Sylvia Hermon (UUP, North Down)

I beg to move amendment No. 127, in page 3, line 41, leave out subsection (1).

Peter Pike (Labour, Burnley)

With this we may discuss the following amendments: No. 152, in page 4, line 3, leave out 'may' and insert 'shall'.

No. 129, in page 4, line 5, leave out

'First Minister and deputy First Minister acting jointly,'

and insert 'Lord Chancellor'.

No. 130, in page 4, line 9, leave out from first 'the' to second 'of' and insert 'Lord Chancellor's Department'.

No. 131, in page 4, line 12, leave out 'Office' and insert 'Department'.

No. 132, in page 4, line 14, leave out from 'the' to 'may' in line 15 and insert 'Lord Chancellor'.

No. 133, in page 4, line 21, leave out from first 'the' to second 'of' and insert 'Lord Chancellor's Department'.

No. 134, in page 4, line 23, leave out 'Office' and insert 'Department'.

Sylvia Hermon (UUP, North Down)

It may help the Committee if I explain that, through schedule 3, clause 5(1)

''transfers to the First and deputy First Minister, acting jointly''—

the words that I find so difficult—

''the power to make appointments, or recommendations for appointment, to listed judicial offices and makes provision about associated functions''.

I seek clarification from the Minister, so I ask him to intervene usefully in a moment or two.

Clause 4 specifically provides a procedure for the appointment of judges to the High Court on the recommendation of the First Minister and Deputy First Minister, acting jointly. As was brought out by

the hon. Member for Reigate, High Court judges are included in the list of judicial offices in schedule 1, to my bitter regret. Please will the Minister clarify the position of the appointment of High Court judges?

Des Browne (Labour, Kilmarnock and Loudoun)

High Court judges and tiers below that, including tribunals and lay magistrates, are listed in the judicial offices in the schedule. The appointments system that applies to them was ably explained by the hon. Member for Reigate in relation to the previous group of amendments. The difference between them and more senior judges is that the First Minister and Deputy First Minister have a consultative role in respect of the senior judicial offices, but their role in relation to other appointments is to make recommendations.

Sylvia Hermon (UUP, North Down)

I appreciate the Minister's intervention. I shall read the record of our proceedings very carefully, not because I disagree with what he says, but simply to clarify it in my head.

The listed judicial offices are those set out in schedule 1, and they are the less senior judicial appointments, including, regrettably, those to the High Court. The points that I raised in relation to clause 4 are even more pertinent to clause 5. The clause provides that the First Minister and Deputy First Minister will have the power, provided that they act jointly, to make appointments to at least 34—I hope I am right—different levels of the judiciary. That is a huge number of appointments. I do not intend to rehearse my concerns again but we must face the reality that the First Minister and Deputy First Minister will not always agree. Will the Minister resolve that issue?

Des Browne (Labour, Kilmarnock and Loudoun)

The answer to the hon. Lady's question about stalemate arising as a result of a failure to act jointly lies in Government amendments No. 70 and 71, which are in the next group of amendments. The Government's position is that the amendments are unnecessary but, for the purposes of clarification, it will be helpful to include them so that there can be no question but that the Bill reflects the review's recommendations.

Sylvia Hermon (UUP, North Down)

I am pleased that the Government spotted the anomaly and tried to address it by tabling amendments. However, it remains my view that the reference to the First Minister and Deputy First Minister should be omitted altogether and replaced by the Lord Chancellor.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Lady is perfectly right. Her amendment would remove the First Minister and Deputy First Minister from having a role in the appointments process and would replace them with the Lord Chancellor. She has already ably articulated why she believes that that should be the case. The Committee should be familiar by now with the Government's position, because I have already said several times that the review and the Bill make it clear that devolving judicial appointments is a key part of the wider judicial process. It would be inconsistent to devolve that function while retaining a role for the Lord Chancellor. Equally, however, our policy on

judicial appointments before devolution remains, so that those powers will stay with the Lord Chancellor and the commission will be set up only on devolution. I hope that that provides the necessary clarification, although I gather that it will not persuade the hon. Lady. I urge her to withdraw her amendments--all the amendments in this group were moved by the hon. Lady.

Peter Pike (Labour, Burnley)

Order. Only one amendment is moved. Amendment No. 127 has been moved and amendments Nos. 152, 129 and 134 are grouped with it.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Member for Montgomeryshire (Lembit Öpik) tabled amendment No. 152, which is designed to address the potential confusion dealt with by amendments Nos. 70 and 71—

Patsy Calton (Liberal Democrat, Cheadle)

It might be helpful to the Minister if I said that the reason that I have not spoken to that amendment is that the concerns that it was designed to address are dealt with by Government amendment No. 70. We do not intend to press amendment No. 152.

Sylvia Hermon (UUP, North Down)

The Minister is right. He has picked up on my body language. I am not happy with this at all. I am keen for criminal justice functions to be delegated to the Assembly, which is where I think they belong. I am concerned, however, that our on-going concentration on the First and Deputy First Ministers acting jointly will, in the long run, act as a block on the devolution of those functions to the Assembly.

Andrew Turner (Conservative, Isle of Wight)

My hon. Friend the Member for Reigate made the point that, in the absence of agreement between the First Minister and the Deputy First Minister, the commission's proposals will proceed. Is it the hon. Lady's understanding—I am quite confused about the matter—that that applies in the case of these particular appointments?

Sylvia Hermon (UUP, North Down)

That is not my understanding of the effect of the Government's amendment.

Des Browne (Labour, Kilmarnock and Loudoun)

I shall try again to explain. I may not be getting through to the Committee. Alternatively, it may be that the hon. Lady and the hon. Member for Isle of Wight understand the position, but have a point of principle in relation to the Lord Chancellor, which I understand but do not accept.

The position in relation to all appointments from High Court judge down—if that is not disparaging to those who hold other judicial posts—and tribunal appointments, is that the First Minister and Deputy First Minister, as recommended by the review, will make the recommendation for appointment in some cases and appoint in others. They will do so on a recommendation of the Judicial Appointments Commission. If they fail to accept that recommendation and act upon it, they are required to send the matter back to the Judicial Appointments Commission. They must accept the next recommendation; there can be no stalemate.

For senior judicial appointments, the Prime Minister makes the recommendation to the Queen for the appointment, and the roles of the First and Deputy First Minister are that of consultees. They may be consulted jointly, and it would be helpful if they had a joint view, but the Bill does not require them to agree on their contribution to the consultation process.

Sylvia Hermon (UUP, North Down)

I am happy to report that the Minister and I are actually in agreement this afternoon on his interpretation of amendment No. 70. I thank him for that. I do not intend to say anything further, except to record my disappointment. I feel that the words ''acting jointly'' could mean that there would be no devolution of criminal justice functions to the Assembly. However, I can see that the Minister has no intention of giving way on the matter, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 70, in page 4, line 14, leave out from beginning to 'by' in line 15 and insert—

'If the First Minister and deputy First Minister do not (within a reasonable time after receiving the report under subsection (4)(b)) appoint or recommend for appointment the person selected by the Commission, they must'.

Peter Pike (Labour, Burnley)

With this it will be convenient to discuss the following: amendment No. 162, in page 4, line 14, leave out subsection (5) and insert—

'(5) If one month after receipt of a report under sub-section 4(b), the First Minister and Deputy First Minister, acting jointly, have not approved the decision of the Commission, it must reconsider its decision.'.

Government amendment No. 71.

Amendment No. 153, in page 4, line 24, at end insert—

'( ) If the Commission re-affirms its selection, the First Minister and deputy First Minister are required to appoint, or recommend for appointment, that person to the listed judicial office.'.

Amendment No. 161, in page 4, line 24, at end insert—

'(6A) The First Minister and Deputy First Minister, acting jointly, must appoint or recommend for appointment, any person selected or re-affirmed under sub-section (6).'.

Des Browne (Labour, Kilmarnock and Loudoun)

Because of the debate on the previous two groups of amendments, we now have a unanimous understanding of the provisions of the amendments and their effect.

Peter Pike (Labour, Burnley)

The Chairman certainly understands.

Des Browne (Labour, Kilmarnock and Loudoun)

My impression, Mr. Pike, is that the Chairman understands quite a lot before we do.

The other amendments cover the same ground, and I ask that they are not pressed, because I am satisfied that the issues that they seek to deal with are already covered by the Government amendments.

Amendment agreed to.

Amendment made, No. 71, in page 4, line 24, at end insert—

'(6A) The First Minister and deputy First Minister must, on being informed by the Commission of the outcome of the reconsideration of its decision, appoint, or recommend for appointment, the person selected by the Commission after the reconsideration.'.—[Mr. Browne.]

Clause 5, as amended, ordered to stand part of the Bill.

Schedule 3 - Appointment to listed judicial offices

Des Browne (Labour, Kilmarnock and Loudoun)

I beg to move amendment No. 72, in page 77, line 8, leave out paragraph 16.

Peter Pike (Labour, Burnley)

With this it will be convenient to discuss Government amendments Nos. 73 and 74.

Des Browne (Labour, Kilmarnock and Loudoun)

These are technical amendments, and I shall endeavour to explain their purpose as slowly as I can, in the hope that I will understand them myself.

Schedule 3 provides for the transfer to the First Minister and Deputy First Minister, acting jointly, of the power to make appointments or recommendations for appointment to listed judicial offices. The schedule is not intended to take effect until after the devolution of justice functions, when the Judicial Appointments Commission is set up.

Paragraph 16 provides for the Lord Chancellor's power under section 11(3) of the Coroners Act (Northern Ireland) 1959 to employ persons to assist with investigations to transfer to the First Minister and Deputy First Minister. On reflection, we consider that that power is not directly related to the Lord Chancellor's appointment functions, and that it would be more appropriate for it to be transferred to the First and Deputy First Ministers under a subsequent transfer of functions order. Accordingly, paragraph 16 will be removed from the Bill.

Paragraphs 31 to 33 provide for the transfer from the Lord Chancellor to the First and Deputy First Ministers of a number of appointment functions in relation to the industrial tribunals and the fair employment tribunal for Northern Ireland. Paragraphs 32 and 33A provide for related amendments to the definitions of ''President'' and ''Vice-President'' in various regulations.

Crispin Blunt (Conservative, Reigate)

I do not have a problem with Government amendments Nos. 73 and 74. They appear to be merely technical. I am not so happy with Government amendment No. 72. I would like the Minister to give us further explanation.

The principle that underlies the Bill is that powers should be devolved when appropriate. That is the underlying principle of paragraph (16), which, as the Minister explained, provides the power to substitute the First Minister and Deputy First Minister for the Lord Chancellor in relation to coroners courts. Will the Minister explain why the words ''acting jointly'' do not appear after the words

''First Minister and deputy First Minister''

in the schedule? Is that an oversight? I imagine that it is. Although one might accept the Government's position that this power can be transferred at a later date by regulations under other powers in the Bill, I would prefer the powers to be transferred now, unless there is a much stronger explanation why it is necessary to wait for further regulations.

What would be the consequences of including such a provision in the Bill, albeit that a further technical amendment may be necessary to add the words ''acting jointly'', which appear to have been missed out? I would be grateful for further explanation of why the transfer of power should be done later by regulation rather than being provided for in the Bill now, which would enable the power to be transferred along with the rest of the provisions when the Secretary of State gives his authority under clause 85 on commencement.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman is absolutely right. It is our intention not to include the provision in the schedule because, on reconsideration, the specific roles carried out by those employed to assist with investigations do not fit properly within judicial appointments. That is the short explanation. The words ''acting jointly'' are a red herring because whether they are needed will be determined by the other provisions in section 11(3) of the relevant Act. Sometimes those words are implied, as we shall see later in our deliberations, and sometimes it is necessary to include them specifically, but they are not always needed. The context of the provision usually makes it clear that the First Minister and Deputy First Minister are intended to act jointly. The issue is a red herring because I am aware of at least one provision in the Bill in which the words are omitted, but implied.

The schedule relates to the devolution of appointment functions in relation to listed judicial offices. A person employed to assist with investigations in the circumstances described is not exercising a function in relation to a judicial office. The paragraph that the amendment will delete does not concern a listed judicial office. It was an error that the paragraph crept into the Bill in the first place and it should be taken out. It is the Government's intention to devolve the power to employ such persons to the First and Deputy First Ministers, but not in their capacity, ex officio, of First and Deputy First Ministers in relation to judicial appointments.

Crispin Blunt (Conservative, Reigate)

I am grateful for the Minister's explanation. On the basis of his assurance that the power to appoint investigators for coroners will be devolved when justice is devolved, I shall not oppose the amendment.

Amendment agreed to.

Amendments made: No. 73, in page 79, line 37, leave out 'definition of ''the President''' and insert

'definitions of ''the President'' and ''the Vice-President'''.—[Mr. Browne.]

No. 74, in page 79, line 41, at end insert—

'33A In regulation 2(2) of the Fair Employment Tribunal (Rules of Procedure) Regulations 1989 (SR 1989 No. 445), in the definitions of ''the President'' and ''Vice-President'', for ''Lord Chancellor'' substitute ''First Minister and deputy First Minister''.'.—[Mr. Browne.]

It being after Five o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June 2001] and the Orders of the Committee [28 and 31 January 2002], to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Schedule 3, as amended, agreed to.

Clauses 6 to 11 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clauses 12 and 13 ordered to stand part of the Bill.

Schedule 5 - Transfer of functions to Lord Chief Justice

Peter Pike (Labour, Burnley)

I now put the Question on schedule 5, as amended, clauses 14 to 20, schedule 6 and clauses 21 and 22.

Question put:—

The Committee divided: Ayes 12, Noes 7.

Edward Garnier (Conservative, Harborough)

On a point of order, Mr. Pike. May I ask your advice on the procedures that you or your co-Chairman, Mr. Conway, will adopt in the future? Some time on 14 February, you will invite us to consent to a motion saying that we have considered the Bill and that it should be reported to the House. If today's activities are anything to go by, we have plainly not considered the Bill; indeed, we have just voted on more than half of part 1 without having

considered a line of it. That is regrettable and brings our procedures into disrepute. I do not suggest that that is your fault, because you are as much a servant of the procedures of the House as the rest of us. None the less, it is unfortunate, to say the least—

Peter Pike (Labour, Burnley)

Order. You have made your point, Mr. Garnier, and I understand it. You should remember that the Committee will be able to divide on the motion at the end of our proceedings. As Chairman, I am not in a position to express a view on whether adequate time has been given to our consideration, just as I could not determine the order of consideration earlier. I hope that whatever has been agreed by the usual channels will enable us to make progress. The Committee agreed the programme motion earlier today and, as Committee Chairman, I have to carry out procedure agreed by the Committee.Clause 23 Attorney-General

Clause 23 - Attorney-General

Crispin Blunt (Conservative, Reigate)

I beg to move, amendment No. 29, in page 14, line 18, at end insert—

'(1A) The Attorney-General for Northern Ireland in respect of Northern Ireland shall assume all the functions of the Attorney-General and Solicitor General for England and Wales other than those allocated to the Advocate General under Schedule 7 of this Act.'.

I agree that you, Mr. Pike, are equipped with the perspicacity to which the Minister referred earlier. Although you are not allowed to express an opinion on whether we have done justice to part 1 of the Bill, I have no doubt that in your own mind—

Peter Pike (Labour, Burnley)

Order. The hon. Gentleman should not presume to read the Chairman's mind. Even my wife cannot do that.

Crispin Blunt (Conservative, Reigate)

Let me say, before we move on to part 2, that what we have just seen is wholly unfortunate. The Minister and the Government Whip should be ashamed of the way in which they have treated the people of Northern Ireland in the consideration of part 1 of the Bill. Everything that I and other Opposition Members have said about programme motions in Committee, on the Floor of the House and in the Programming Sub-Committee has turned out to be correct.

Edward Garnier (Conservative, Harborough)

Will my hon. Friend give way?

Crispin Blunt (Conservative, Reigate)

Of course.

Peter Pike (Labour, Burnley)

Order. Before I call Mr. Garnier, I remind the hon. Member for Reigate that I called him to move the amendment. I have allowed him to make a brief point and I hope that his hon. and learned Friend who is about to intervene will be very brief and will recognise that I can rule his intervention out of order if it is not relevant to the amendment. Please be extremely brief, Mr. Garnier.

Edward Garnier (Conservative, Harborough)

My anger is getting the better of me, Mr. Pike. I am dismayed at the way in which the Government are treating the proper scrutiny of

legislation, especially in relation to Northern Ireland. As there are only three Ulster MPs on the Committee, it seems incumbent on us to look all the more carefully when we are dealing with the interests of minority parties in a part of the United Kingdom that is not as well represented—

Peter Pike (Labour, Burnley)

Order. The hon. and learned Gentleman has made his point. I call Mr. Blunt to speak to the amendment.

Crispin Blunt (Conservative, Reigate)

I just wonder whether the Attorney-General of England and Wales should have some responsibility for the proper scrutiny of legislation. Perhaps that would be a diversion from the purpose of the amendment.

It was my observation, and that of a number of contributors to the review process and to the consultation, that the duties of the Attorney-General of Northern Ireland are not defined in the Bill. The duties of the Director of Public Prosecutions are extremely clear and well laid out. The DPP is responsible to the Attorney-General and, where the Attorney-General has to exercise functions in relation to the DPP, those functions are clear. What is not clear is the detail of the role of the Attorney-General of Northern Ireland. I assume that it is as legal adviser to the Executive, the First Minister, the Deputy First Minister and the Assembly.

The purpose of the amendment is to ensure that all the functions that the Attorney-General usually exercises within England and Wales are, where appropriate, transferred to the Attorney-General for Northern Ireland. It can be put as simply as that. I look to the Government to explain why they oppose the amendment--if they do. If it assists in defining the role of the Attorney-General for Northern Ireland, which is not done in the Bill, I hope that the Government will accept it. That will make the role of the Attorney-General for Northern Ireland clearer.

Des Browne (Labour, Kilmarnock and Loudoun)

I am grateful to the hon. Member for Reigate for explaining his amendment, and I can give him the reassurance that he seeks. In so far as the amendment is intended to ensure that the new Attorney-General takes up the existing functions of the post, it will have no effect on the Bill.

The Bill removes the link between the posts of Attorney-General for Northern Ireland and Attorney-General for England and Wales, which is set out in section 10 of the Northern Ireland Constitution Act 1973. That removal will automatically confer the existing functions of the post on the new, locally appointed law officer. That is separate from the changes under schedule 7 to which the hon. Gentleman refers in his amendment, so I infer that he understands them. It is also separate from the functions transferred to the Director of Public Prosecutions under clause 41. The hon. Gentleman can be reassured that unless they are transferred somewhere else in the Bill, all the existing functions of the post will be transferred to the new Attorney-General.

I have two lists in my hand. One sets out in about 30 lines the functions of the Attorney-General for Northern Ireland as proposed in the Bill, and the other sets out the functions of the Advocate-General for Northern Ireland as proposed in the Bill. No one would welcome my reading those lists out, but I shall ensure that they are circulated to all Committee members so that they can have the parity that the hon. Member for Reigate says is missing.

I had understood that, during the process of consultation and advice that I had set up before the Bill was introduced, someone in the Conservative party had been given the lists. Perhaps they did not reach the hon. Gentleman; such things happen. I do not want to make a major point about that, but another copy can be sent to him if it will assist him. The reassurance that he seeks to add to the Bill through the amendment is already there.

Peter Pike (Labour, Burnley)

Order. Before we move on, I have been asked to give guidance as to what time the sitting will end. As I suggested at the programming meeting that I chaired earlier in the week, afternoon sittings of the Committee start at 4.30 on a Tuesday and 2.30 on a Thursday, and can continue with a meal break until it is agreed that the Committee adjourn. That means that we can sit until 10 o'clock, 6 o'clock tomorrow morning or whenever, until the Committee agrees to adjourn.

The matter is not for the Chair to determine, but if we sat until such a time—I presume that we will not—I would determine a meal break at some stage. I am sorry that I cannot say at what time the Committee will adjourn, as I do not know. [Interruption.] It has been indicated informally across the Floor that we shall adjourn at 6.30 pm.

Crispin Blunt (Conservative, Reigate)

I have listened to the Minister and look forward to receiving the list of functions. I cannot recall having seen them, which he obviously suggests is either my fault or that of another member of my party who has not passed them to me. I am happy to take his word on that, and on the amendment's being unnecessary because what it would do has been achieved in the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24 - Attorney general

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 30, in page 14, line 37, leave out '70' and insert '75'.

The amendment would raise the age up to which the Attorney-General for Northern Ireland can be in his post to 75 from 70, and there is nothing complicated about its purpose. When I considered the issue, it struck me that the range of people who are available for appointment in Northern Ireland is inevitably more restricted than elsewhere because it is a small community. The Attorney-General's functions will

not be hugely onerous, particularly as he is disqualified from being an active politician. My understanding is that the retirement age for judges is 75—the Minister is shaking his head, so perhaps it is 70.

5.15 pm

Des Browne (Labour, Kilmarnock and Loudoun)

I did not say anything.

Crispin Blunt (Conservative, Reigate)

Perhaps I should not entirely trust the indications that I receive from members of the Government Front Bench after my earlier experience. I hope that I am correct about the age limit for judges, but if I am not, I would be grateful for a correction—I am not getting one.

The point at issue is the judgment of the First Minister and Deputy First Minister about whether someone is capable of undertaking their responsibilities. Everyone is staying fitter longer into old age, and I see no reason why potential Attorney-Generals should be any different from anyone else. Given the responsibilities that come with the post, it would be reasonable to raise the age limit from 70 to 75.

There are obviously enormous issues of principle for lobby groups such as Age Concern about the age up to which people can make a proper contribution to public life. There is no age limit on electing people to public office, and the First Minister and Deputy First Minister could surely make a judgment in each case.

The Committee should consider the age limit for the post of Attorney-General, and our decision will be a matter of judgment. We shall not change the face of history in Northern Ireland if we accept the amendment, but it would be a pity if an Attorney-General had to leave office at the age of 70 even though his personality was right and his fitness for office was beyond reproach. He could have gained an irreproachable reputation for the quality of his legal advice to the Administration and for the way in which he oversaw the Director of Public Prosecutions. We are not overloaded with people of indisputable reputation and balance who can take on that role, and it would be an enormous pity if the Bill disqualified someone who was approaching the age of 70, but who was fit enough to do the job and whom everyone wanted to be reappointed.

We are talking about only one post, not a range of posts. I may have misdirected myself on the age limit for the judiciary, but that involves the appointment of a large number of people, and it must be possible to come to a judgment about the fitness of the whole group. It may be proper for Parliament to say that people between the ages of 70 and 75 will cease to be able to perform those functions effectively. If that is what we are saying by setting the retirement age of judges at 70, it may be a proper judgment to make.

In this case, however, we are considering one post alone, and a judgment that the First Minister and Deputy First Minister will make. The reference to the age of 70 is too prescriptive, and I hope that the Committee takes a stand for those aged between 70 and 75, who could make a full contribution because they could still be fit and have all their faculties. I hope

that the Government will accept the amendment or that, with some assistance from Labour Back Benchers, we impose it on them.

Andrew Turner (Conservative, Isle of Wight)

I am less moderate than my hon. Friend on this matter. I am glad that he moved the amendment. Although I am sorry that he felt the need to give any age limit, I understand that he hopes by that to gain support from the Committee.

I have recently dealt with a constituency case in which the local authority refused to employ people over 65, except in certain part-time capacities. It is extraordinary that a Government who are concerned about equality are prepared to discriminate against a whole section of the community on the grounds of age, which is not something that any of us can change about ourselves.

I suggest to my hon. Friend that an age of retirement is given for the judiciary and bishops because they enjoy life tenure for those appointments, whereas this appointment has no life tenure. Indeed, it is an appointment for a fixed period of five years. That provides another argument against any upper limit. However, the amendment is perfectly reasonable and I look forward to the Government's defence of such unjustified discrimination.

Des Browne (Labour, Kilmarnock and Loudoun)

That was a powerful argument against any retirement age being prescribed at all, as it would be interpreted by the hon. Member for Isle of Wight as discrimination against older people. For many people, reaching retirement age provides an opportunity to move into another phase of their lives, and is a relief from the pressure of spending most of their lives in a working environment. However, let us concentrate on the issue before us.

The hon. Member for Isle of Wight seems to be ignorant as regards judges' retirement ages, whereas the hon. Member for Reigate was at least prepared to say that he was not clear on the matter. Over the past 20 years or thereabouts, judicial appointments that were traditionally made for life—or, more properly, ad vitam aut culpam—have been made subject to retirement ages. When I first began to practise law, there were judges who were well into their 80s, some of whom had to be physically carried on to the bench. I agree with the hon. Member for Reigate that, intellectually, they were very sharp, but for very good reasons a view was taken that judges should have relevant experience of life when dealing with the issues that come before them.

Repeated criticisms were made of decisions made by judges, on the grounds that they were old buffers or codgers or knew nothing about life. Jokes and stories were told about people appearing before judges who did not even understand the up-to-date vocabulary. Everyone knows the story of the judge who had to ask who the Beatles were in the 1960s.

Peter Kilfoyle (Labour, Liverpool, Walton)

Will my hon. Friend give way?

Des Browne (Labour, Kilmarnock and Loudoun)

I shall give way to my hon. Friend, who comes from the same city as the Beatles.

Peter Kilfoyle (Labour, Liverpool, Walton)

Being grey-haired and 55 years of age, I am increasingly divorced from the perceptions and experience of my children and of many of the younger generation. I am fascinated to hear my hon. Friend speak about an arbitrary age limit of 70. It is a legitimate point. Surely we are talking about fitness for office, not about applying an arbitrary age limit.

Des Browne (Labour, Kilmarnock and Loudoun)

The answer to my hon. Friend is that it is not an arbitrary limit. I cannot speak for him, but I suspect that he has been a politician long enough to have been party to criticisms of decisions made by judges who were perceived to be out of contact with ordinary people. [Interruption.] He nods his head; perhaps he remembers doing so.

I suspect that there are only a few hon. Members with that length of experience who have not expressed the view that a decision handed down by a judge was perceived by their constituents to have been out of contact with the times. It is a legitimate criticism, but once such perceptions creep in about judges at that level in the judicial process, it damages the process of law because people start to concentrate on the age and description of judges and whether they are equipped to understand the issues that come before them. As I said before, jokes abound in the legal profession about judges having to ask about ordinary, everyday things, not knowing what was happening on the soaps and so on. Some of those things are more important than others, but they all damage the administration of justice.

Tony Clarke (Labour, Northampton South)

Is it their age that leads my hon. Friend to believe that judges have no contact with the outside world, or is it simply the narrow focus of their outside interests? At the age of 75 or 80, they could have an active life and a wide range of outside interests that would enable them to carry out that function.

Peter Pike (Labour, Burnley)

Order. I should point out that I shall be 65 in June.

Des Browne (Labour, Kilmarnock and Loudoun)

I am over the limit myself, Mr. Pike.

I do not criticise judges for their age. I am saying that the administration of justice was being criticised regularly with such observations. It is a matter of history. Anyone who has lived through the past 30 or 40 years will know that it happened. As a result, successive Governments and the judges accepted that it would be helpful to the college of justice represented by the judges if it could be regularly refreshed by younger people. Instead of staying on and handing down the same sort of justice against the same standards for 40 or 50 years, many judges agreed that they should accept a retirement age that would allow younger people to be appointed. To my certain knowledge, as the age of judges became lower—that coincided in all parts of the United Kingdom with an increase in the number of judges in order to increase the courts' capacity—the criticisms reduced significantly and the ordinary person's confidence in the justice system improved.

The retirement age that was imposed on judges did not start at the present age of 70. Some judges are still in place who have statutory contracts that allow them to retire later, and transitional provisions are in place for that. However, there is a general acceptance that judges should retire at the age of 70. I recollect that the benefits of retirement were disputed by some judges when it was first imposed, but it is generally accepted in the legal profession and in the courts, and it seems to have improved people's confidence in judges' decisions.

Peter Kilfoyle (Labour, Liverpool, Walton)

I am conscious that if a retirement age of 70 is accepted by the legal profession, it would meet the approval of those outside, especially as it would create more job opportunities for impecunious lawyers.

My original point was that the issue depends on performance. Of course we have all made comments about judges who seem to be out of touch with the real world, but this is a changing world and the legal profession is one of the slowest to react to that. We have an increasingly ageing population, and one could argue that judges are far more in touch with an increasing majority of the population. The Minister's argument seems specious. The selection of 70 as the retirement age instead of 75 is arbitrary, unless it were to be redefined in terms of the incompetence or otherwise of the incumbent.

Des Browne (Labour, Kilmarnock and Loudoun)

My hon. Friend and I will have to agree to disagree on the matter. I thought that I had spoken to him in a reasonable fashion. There has been a progressive understanding, in response to the public's view, as expressed repeatedly by people such as himself—I might do some research into that. Measures have been taken in response to criticism, principally expressed by politicians, relating to the perception of judges' behaviour with reference to their age and their failure to understand and connect with ordinary people. There has been, progressively—

Mr. Blunt rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I shall not give way any more, because this issue has taken up more time than it needs. There are very important issues to discuss, and concerns have already been expressed about our not having time to debate them. We are getting bogged down unnecessarily in discussion of a relatively unimportant issue.

The description by my hon. Friend the Member for Liverpool, Walton (Mr. Kilfoyle) of the measure as somehow being about jobs for the boys and impecunious lawyers is a distortion of a position that has been arrived at by a steady progression. The phrases he used are cheap. The legal profession and judges in particular responded to demands that were being placed on them, and were driven by politicians to accept retirement ages. It has worked—the general perception of the quality of justice emanating from a

generally younger group of judges has improved. The judiciary is less criticised on that front in the press and other media.

All we have done is to adopt the age already set elsewhere. The qualification necessary to become Attorney-General is to have been a member of either of the legal professions for 10 years, as it is to become a judge. The role is equivalent to that of a judge and should have the same terms and conditions insofar as is appropriate. That is the position; as the hon. Member for Reigate said, it is a matter for judgment. Our judgment is that the retirement age for judges is the appropriate age limit in this case. That is not driven by a prejudice against older people, or any of the other motives that have been attached to it, which are not true and have no relevance to our thinking. That is the practice that has developed in response to the view of the populace.

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

Will the Minister give way?

Des Browne (Labour, Kilmarnock and Loudoun)

I am not giving way any more. In my view, it is appropriate that we should use those qualifications and that age.

Peter Kilfoyle (Labour, Liverpool, Walton)

I am saddened by the Minister's attitude, and I mean that sincerely. I am not too happy with the way in which he has responded to what I considered to be a serious point. He may think that it is a minor matter that a post of such significance should be denied, on what I consider to be arbitrary grounds, but I do not.

I do not care what the Minister chooses to imply about comments that I may have made about judges. I hope that I will not stand corrected when he checks the record. I do not remember making a comment in public life about a judge's age per se being a barrier to that judge being able to hand down a decision. I might have questioned whether a certain decision was right—on the basis not of age but of the evidence that the judge had before him or her. I take a simple view that it is important that the Government be consistent in such matters, in terms not just of law or the legal profession but of the message that they send out to older people. I stand by my comments about older people and an ageing population. That should be recognised in the Bill as in all things.

The fact that the appointment will be for five years can be used judiciously by those who make the appointment. It seems bizarre that the cut-off age should be so arbitrary, especially given that one might expect that, in such a post and up to a certain point, with advancing years may come increasing sagacity. Of course we want to ensure that judges are in touch with the upcoming generation. One could legitimately make the same argument about the age of MPs, yet we hear no such argument being advanced in the House.

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

I wanted to make the same point as my hon. Friend the Member for Liverpool, Walton about the age of MPs. We have heard recently from the Chairman of the Select Committee on Transport, Local Government and the Regions, my hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody), who is over that age and is performing a

sterling job in bringing her experience to bear. I am not sure that this is the time to conduct this business, but I am 56, and if I were as hale and hearty as the Transport Select Committee Chairman, I would probably want to carry on doing this job, hoping to do it as well as she does.

Many of us have signed early-day motions on ageism in an attempt to oppose strongly the general way in which the Minister has talked today. I agree with him that it has been of benefit to stop the open-ended age limit on being a judge, which sometimes made it difficult to get rid of incompetent people. However, perhaps the same principle should not apply to the most senior position, which is a short-term appointment anyway, and when those making the appointment have a large field to choose from. Maybe this is not the place to start breaking that ageist pattern of reasoning, but I am disconcerted by the Minister's reasoning. Having signed an early-day motion on ageism, and believing that the House gets tremendous value from people in that age range, it would be inconsistent of me to give the Minister my wholehearted support. I hope that, in his response, he will say that he will think about the issue between now and Report.

Tony Clarke (Labour, Northampton South)

I do not want to delay the Committee, but I want to ensure that the Minister understands the strength of feeling on the issue. Surely it is not for us to say that someone is out of touch with society just because they have reached the magical age of 75. It is a question of whether they are in touch with the world through their outside interests. I can think of many reasons why someone under 70 may not be fit to hold office, including that they are out of touch with society and with those who think they know better, or because of their lifestyle. What if a judge under 70 leads a restricted lifestyle, perhaps living in his mansion or other such dwelling that can be afforded only by members of the judiciary, and is unable to understand the workings and dealings of those who come before him in his work?

Some of us feel strongly that it is impossible to pick an arbitrary age of 70, 75 or 80, and if we are to set criteria by which to judge the fitness of those working in the legal system, those criteria should include more than just age. Perhaps, during our deliberations, we could consider what other criteria might be more fitting.

Des Browne (Labour, Kilmarnock and Loudoun)

It would ill behove me not to listen to my hon. Friends, as well as to other hon. Members, on this issue. I had not intended that the debate would cause so many people to parade their ages in front of the Committee. I explained that retirement ages for senior figures had resulted from an evolutionary process that reflected public opinion. Such views are often expressed by politicians, because that is their job. To my recollection, the process was never arbitrary, and nor were the figures, which emerged from discussions about the people to whom they applied.

My hon. Friends' arguments apply to not only the job under discussion but, by read-across, the job from which the figure was taken. I do not know whether my

hon. Friends say with one voice or separate voices that we ought to reconsider, reverse the process that led to retirement ages for judges and go back to the previous system, which measured a judge's ability. There was great dissatisfaction with that process.

I resist the amendment because there is a coherent reason for the provision, in parallel to the retirement age of judges. I shall have to reflect on the wider ramifications of the debate in the context of the judicial system of Northern Ireland and all judges. I shall engage in conversations with any hon. Members who want to talk to me on the subject, because the debate goes wider than the amendment. The logic of the position put to me by the hon. Member for Reigate and others is extensive. However, I resist the amendment today because there are good reasons, in relation to the status quo, for a read-across at that age.

Chris Mole (Labour, Ipswich)

I welcome the Minister's argument, which I found persuasive. I used to share the views of some earlier speakers, although the older I get, the less persuaded I am by anti-ageist views. I am surprised by the argument made by the hon. Member for Reigate, given that his party put in place an age limit of 70 for members of police authorities in the Police and Criminal Evidence Act 1984. As I understand it, the Conservative party has operated a limit at 70 for local government candidates for the past 10 years or so.

Andrew Turner (Conservative, Isle of Wight)

The final point made by the hon. Gentleman is entirely inaccurate. In my authority, Conservative candidates aged 78 were selected at the most recent county council elections. They were not elected, but they were selected.

The Minister would do himself justice if he explained that he was being ironic, as the report of our proceedings will not show it. I suspect that he was being ironic earlier when he suggested that I argued against retirement age.

Des Browne (Labour, Kilmarnock and Loudoun)

I was not being ironic.

Andrew Turner (Conservative, Isle of Wight)

It seems that the Minister was not being ironic. My argument was not against retirement age, but against refusing to consider someone for a post because they had reached or were likely to reach a certain age within a certain time. That is the fundamental problem with the Bill. I say to the hon. Member for Croydon—

Chris Mole (Labour, Ipswich)

Ipswich.

Andrew Turner (Conservative, Isle of Wight)

It is all north of the Solent. I tell the hon. Member for Ipswich (Mr. Mole) that the fact that we did something 10 years ago is no reason for him to do it now. A hundred years ago, many people felt that women could not make the same judgments as men, which disqualified them from occupying a place in the House. Rather fewer years ago, it was felt that black people could not make the same judgments as white people. I do not suggest for a moment that the Minister holds those views, or even that his view is equivalent to those views. However, views evolve and sometimes

evolve back again. An evolutionary process led to agreement that there should be an upper limit on the age of judges who would otherwise hold their positions for life. That is no argument for there being an upper limit on age for appointment to an office with a fixed period of tenure. I do not see the connection.

I am fortunate enough to represent a constituency in which a large proportion of the population is retired and it is pleasant to be called a nice young man or even an impudent young man when one is approaching 50. Many people over retirement age are perfectly able and should not be discriminated against. The Minister has not made his case.

Crispin Blunt (Conservative, Reigate)

Mr. Pike, I distinctly heard the Minister remark, in response to you, that he is older than he looks. Arguments about age put by anyone who has sufficient self-regard to make that remark should be treated with the greatest of scepticism.

On the substance of the issue, I am grateful for the contributions of the hon. Members for Liverpool, Walton, for Hemel Hempstead and for Northampton, South (Mr. Clarke), because they have convinced me that the amendment is wrong—it should remove the age limit altogether. However, we are not in a position to strike the provision out, because it is part of a clause.

Sylvia Hermon (UUP, North Down)

What is the current term of judicial appointments? Is there a statutory age now?

Crispin Blunt (Conservative, Reigate)

If I understand correctly from the advice that the Minister has given the Committee, the retirement age for judges is 70 unless they hold tenure by virtue of appointment under earlier rules that allowed them to serve until the age of 75.

Peter Kilfoyle (Labour, Liverpool, Walton)

I do not know whether I am in order in asking this, but could the hon. Gentleman not withdraw the amendment in the light of the Minister's comments, with a view to reconsideration of the clause and the age limits therein on Report?

Crispin Blunt (Conservative, Reigate)

I am grateful to the hon. Gentleman for raising that issue, because I should like to address it. The Minister said ''I resist the amendment''. I did not hear him give an undertaking to come back on Report with an amendment in the terms that the hon. Gentleman and I would seek.

Tony Clarke (Labour, Northampton South)

In supporting the point of view of my hon. Friend the Member for Liverpool, Walton, does the hon. Gentleman accept that his amendment is as unpalatable to Labour Members as the age currently shown? Picking 75 is as arbitrary as suggesting 70. He is unlikely to gain support for the amendment, so withdrawing it might be the best way of ensuring that the issue is re-examined on Report.

Crispin Blunt (Conservative, Reigate)

What I shall say now is terribly important, because I believe that I have an opportunity to convince the hon. Gentleman to support the amendment. Picking 75 is better than sticking to 70 because it gives the First Minister and Deputy First Minister, in appointing the Attorney-General, the ability to appoint people for longer. If we

showed an age of 110 or 120, we would create exactly the position that he and I seek. Any advance from 70 gives those two Ministers greater flexibility. We have a practical problem in considering the Bill, which is that we shall have a very short time on Report in which to debate the matter. If it is not tabled as a Government amendment on Report, it will not be considered. The only way in which to be certain of triggering a debate on the matter on Report is to accept this amendment now. I shall then give the hon. Member for Northampton, South the undertaking that I shall table on behalf of the Opposition the amendment that he and I seek, which removes the age limit altogether. If the Government were to come forward with such an amendment, it would be accepted.

Chris Mole (Labour, Ipswich)

Given the hon. Gentleman's earlier arguments about the need to improve the representation of women and ethnic minorities on the Judicial Appointments Commission, can he tell me whether he thinks that the action he describes will enhance that process or delay it? I would say the latter.

Crispin Blunt (Conservative, Reigate)

That has nothing to do with it.

Chris Mole (Labour, Ipswich)

The hon. Gentleman is suggesting that there is a pool of women and people from ethnic minorities aged over 70 who will help with that process.

Crispin Blunt (Conservative, Reigate)

This matter has nothing to do with the Judicial Appointments Commission. We have moved on from part 1 of the Bill, having not considered three quarters of it. We are now considering part 2. The hon. Gentleman, in raising the matter of the Judicial Appointments Commission, is introducing arguments that are irrelevant to a single post.

Just one man or woman is required for this post. That is where the argument that the age limit is arbitrary defeats the Minister's arguments, which apply only in the case of a class of people such as judges or members of policing boards. Assumptions can be made about what might be a reasonable age, on average, for such people to retire, and I accept the arguments on that. I disagree with the principled arguments being made that there should be no age limits at all. It can be argued that, when dealing with a large group of people, it is reasonable to impose a retirement age.

However, in this case, this House is imposing an arbitrary limit on one person. That person is selected by the First Minister and Deputy First Minister. They will have a retirement age of 75 if either amendment No. 30 or the amendment that I shall table on Report, should I fail to secure the higher age of 75 in Committee, is adopted. I shall come to why it is necessary to put the age of 75 in the Bill to ensure that there is a debate on the matter later on. Under clause 25, if that person becomes incapacitated, the First Minister and Deputy First Minister can initiate a process by which he can be removed.

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

I urge the hon. Gentleman to think carefully about what he is doing, because there are many different dimensions to the matter. Having a

retirement age for a post that is held for a definite time, such as that of a Member of Parliament where the electorate decide, or the post under discussion, is different from the issue of having of general retirement age. I am basically in favour of a general retirement age, although I believe that people should have rights, when they reach that stage, that they do not currently enjoy.

The argument is becoming complicated and I am worried that, because there are many different positions, if the hon. Gentleman were to press his amendment it would not succeed. We would then lose the benefit of the review of the problem that the Minister has promised us. Like my hon. Friend the Member for Northampton, South, I urge the hon. Gentleman to accept what we have gained so far and see whether we can run with it at the next step.

Crispin Blunt (Conservative, Reigate)

In normal circumstances, I would, but with the hon. Gentleman's support and that of his hon. Friends, who have indicated that they agree with us on the principle involved in the issue of this one post—

Peter Kilfoyle (Labour, Liverpool, Walton)

I want to disabuse the hon. Gentleman of a misapprehension that he is under. The tactical considerations of the Opposition and what may or may not happen on Report are not issues that interest my hon. Friends and myself. I can only reinforce what my hon. Friend the Member for Hemel Hempstead said a moment ago: we cannot possibly find those tactical arguments persuasive. I understand why the hon. Gentleman puts them forward, but they contradict the principled position to which he alluded.

I urge the hon. Gentleman to withdraw the amendment and engage in a debate later, if necessary. Unlike him, I am inclined to accept what the Minister intimated a few minutes ago: that we should take representations and address the matter seriously, as many members of the Committee have.

Peter Pike (Labour, Burnley)

Order. We should not get too involved in what may or may not happen on Report. I understand the relevance of that matter to the hon. Member for Reigate, but he should keep his references as brief as possible.

Crispin Blunt (Conservative, Reigate)

I am grateful for your guidance, Mr. Pike.

If the amendment were passed by the Committee and the Government disagreed with it, they would have to return to it on Report and reinsert the age of 70. That would be the position, if the Committee insisted on having 75 rather than 70. The Committee may choose to rest on the Minister's assurances—although I am not clear that we have them, and want the Minister to repeat them. I am carefully considering what the hon. Member for Liverpool, Walton said. I have not made up my mind and want to clarify the position so that we all understand what the consequences will be if I choose to withdraw the amendment.

Sylvia Hermon (UUP, North Down)

To assist the hon. Gentleman in his clarification of the argument, may I say that the review makes a distinct recommendation on this matter. It states:

''Consistent with the exhortations of human rights instruments about security of tenure, we endorse the current arrangements that give full-time judges and magistrates tenure during good behaviour until a statutory retirement age.''

In fairness to the Minister, if the current arrangement is a retirement age of 70, that is what the review committee recommended.

Crispin Blunt (Conservative, Reigate)

I am sure that the Minister will rely on the review committee, but we as legislators must make judgments for ourselves. The position of Attorney-General in Northern Ireland is not consistent with a group of other posts; it is an individual post made by the First Minister and Deputy First Minister to produce legal advice for the Assembly, to be publicly accountable to the Director of Public Prosecutions, and so on.

If I withdraw the amendment, there may not be time to debate an Opposition amendment, tabled as my hon. Friends and I would desire. That is a practical problem that we face. We are also faced with the fact that the Government, having listened to consultation, may not table an amendment, which would leave the House with no opportunity to debate the issue again.

Tony Clarke (Labour, Northampton South)

I would like to help the hon. Gentleman with his deliberations, taking into account the comments made by my hon. Friend the Member for Liverpool, Walton. As none of us seems able to support his amendment, does he not see that simply withdrawing it is the only means by which to take the argument forward? It is in no one's interest to press the amendment to a Division and then be defeated, given that we disagree as much with the amendment as with the age limit in the Bill?

Crispin Blunt (Conservative, Reigate)

I have tried and failed to convince the hon. Gentleman that 75 is better than 70. He has made it clear that he will not support the amendment.

Edward Garnier (Conservative, Harborough)

Perhaps I can help my hon. Friend, as the argument is becoming rather circular. It is common ground between my hon. Friend and me that the Committee and the House are stifled in the amount of time available to debate the Bill. However, the Government cannot control the debate in another place. If there is no time on Report and we cannot get the assurances that we require from the Minister, might it not be a good idea to pack this up and resurrect it in the other place? The wealth of experience that exists there will allow the matter to be properly explored.

Crispin Blunt (Conservative, Reigate)

I shall not go quite that far. I will take note of what Labour Members said, and I will not press the amendment now. I will rely on their ability to convince the Minister that it would be a good idea for the Government to come forward with the amendment that they seek. I will table such an amendment myself

on Report. If they fail to convince the Government and my amendment is reached, I sincerely hope that they will support it.

The debate has been instructive, and we have touched on a number of fundamental principles. I know that it has taken some time, but it is part of our responsibility to explore those issues. I had not anticipated that this would spark the concern that it has. It has been instructive for me too. I am extremely grateful to Labour Members for their contributions. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25 - Removal of Attorney General

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 170, in page 16, line 2, leave out 'Lord Chancellor' and insert

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

When I first saw this amendment in the name of the hon. Member for Newry and Armagh I wanted to support it on the principle that it is best for the Lord Chancellor to be taken out of this exercise and to be replaced by a First Minister and Deputy First Minister, acting jointly wherever possible. Having examined the amendment and its effect, it appears that the First Minister and Deputy First Minister would appoint members of a tribunal, even though they would, in effect, be the plaintiff on that tribunal by seeking the removal of the Attorney-General. I hope that I have understood that correctly.

However, given that the desire is to devolve those functions to Northern Ireland as far as possible, it would be an appropriate compromise to give the function to the Secretary of State. The hon. Member for Newry and Armagh is on the right lines in trying to remove the Lord Chancellor from the process. It would be appropriate for that function to be held by the Secretary of State, not by the Lord Chancellor. That is more in line with the devolution of justice to Northern Ireland. I accept that there is a concern that because this is a quasi-judicial position, the Lord Chancellor should have a role. However, as far as possible the principle that should direct the Committee is the removal of the functions of the Lord Chancellor. It is appropriate for such quasi-judicial functions to rest with the Secretary of State, who is closer to Northern Ireland business than the Lord Chancellor.

Des Browne (Labour, Kilmarnock and Loudoun)

As the hon. Member for Reigate says, amendment No. 170 would require the First Minister and the Deputy First Minister, rather than the Lord Chancellor, to select members of the removal tribunal. The membership of the tribunal was carefully chosen to ensure that the question of whether the Attorney-General should be removed from office would be decided impartially and independently. That is why the arguments of the hon. Member for Reigate are, with respect, not applicable. Judges from England, Wales and Scotland, but not Northern Ireland, are chosen to make up the tribunal. The person who

chooses those judges does not require knowledge of Northern Ireland; he requires knowledge of judges and their abilities outside of Northern Ireland.

The hon. Gentleman's point about the framing of the amendment is correct. There would be a manifest conflict of interest if the potential plaintiff selected the tribunal's membership. There is an additional point, to which I have alluded. Given that the members of the tribunal will be drawn from outside Northern Ireland, it is unlikely that the First Minister and the Deputy First Minister would have the necessary knowledge to select them. On the basis of the hon. Gentleman's own logic, whoever holds the office of Lord Chancellor is far more likely to have the knowledge to select the membership than the Secretary of State for Northern Ireland. For practical reasons, he is the most appropriate person. I have other points to make on the involvement of the First Minister and the Deputy Minister in the removal tribunal but they are adequately summed up by the points that the hon. Member for Reigate made about the conflict of interests.

Crispin Blunt (Conservative, Reigate)

I am satisfied with that explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Annual report by Attorney General

Crispin Blunt (Conservative, Reigate)

I beg to move amendment No. 171, in page 16, line 36, after 'Deputy First Minister', insert 'acting jointly'.

Peter Pike (Labour, Burnley)

With this it will be convenient to take amendment No. 172, in page 16, line 41, after 'deputy First Minister', insert 'acting jointly'.

Crispin Blunt (Conservative, Reigate)

The Minister is nodding at me. I think that two out of three of his indications across the Floor have been right. Working on the basis of probability, I hope that these technical amendments assist the Government. I assume that the omission of ''acting jointly'' is an oversight. If not, I would be grateful if the Minister could explain what it means, in the specific circumstances of the clause and more widely, if those words are not in the Bill.

Sylvia Hermon (UUP, North Down)

Given what I said earlier, I am sure that it will come as no surprise to members of the Committee that I formally register my objection to an extension of the ability of the First Minister and the Deputy First Minister to act jointly. The Bill should stay as it is.

Des Browne (Labour, Kilmarnock and Loudoun)

I have no comfort to offer the hon. Lady. The amendments would clarify that the First Minister and Deputy First Minister must exercise their functions jointly with regard to the Attorney-General's annual report. I am grateful to the hon. Member for Reigate for introducing the amendments.

My hon. Friend the Member for Newry and Armagh, who tabled the amendments, may not thank me for drawing attention to the fact that he had to leave our sitting or else he would have pursued the amendments himself. I am sorry that I will disappoint the hon. Member for North Down, but I am grateful for the opportunity to respond to the points that have been raised.

This is the appropriate part of the Bill to discuss the amendments, although my hon. Friend the Member for Newry and Armagh sought to table them on another clause. The Government's argument is that, under subsection (4), the Bill already requires the First Minister and Deputy First Minister to act jointly in connection with the annual report of the Attorney-General. I am advised that whether the words are included is a drafting matter. Since subsection (5) relates to subsection (4) under which the First Minister and the Deputy First Minister are constrained to act jointly, it is not necessary to repeat that under subsection (5) because their duties under subsection (5) can be carried out only in the context of subsection (4).

Mr. Blunt rose—

Des Browne (Labour, Kilmarnock and Loudoun)

I do not want the debate to turn into another long and involved discussion about a comparatively small issue. Although it may be important to the hon. Member for Reigate, I shall not give way now.

I have had the opportunity outside of the Room to discuss the matter with my hon. Friend the Member for Newry and Armagh. Although he is not here to speak for himself, I think that he agreed that the Bill had the legal effect that he and the Government want, but that it was a matter of presentation. He was anxious that no opportunity was left for an argument, and was worried that the absence of the words under subsection (5) could cause division. I understand how strongly he feels about the matter, and how strongly the hon. Lady feels about it. However, the Government have nailed their colours to the mast in relation to ''acting jointly''.

I assured my hon. Friend the Member for Newry and Armagh that I would reconsider the drafting of the Bill. Perhaps his proxy, the hon. Member for Reigate, could be persuaded to withdraw the amendment on the basis that we shall look again at the inclusion or otherwise of the words. The Committee must bear in mind the fact that it is the Government's intention that the First Minister and the Deputy First Minister should act jointly, and that has already been achieved because of the way in which the Bill is drafted. It was not intended to leave out those words, it being a convention of the draftsmen that words are added only if they are absolutely necessary. They are not necessary under subsection (5).

The rest of the debate is in Hansard.