Justice (Northern Ireland) Bill [Lords]

Public Bill Committee, 25 March 2004.

Standing Committee D

Justice (Northern Ireland) Bill [Lords]

Joe Benton (Labour, Bootle)

I remind the Committee that there is a money resolution in connection with the Bill, copies of which are available in the Room. Adequate notice should be given of amendments. As a general rule, I do not intend to call starred amendments, including any that may be reached during an afternoon sitting.Clause 1 Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

Clause 1 - Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

David Trimble (UUP, Upper Bann)

I beg to move amendment No. 47, in

clause 1, page 1, line 5, leave out from 'Schedule 1' to end of line 7.

Joe Benton (Labour, Bootle)

With this we may discuss the following amendments: No. 52, in

schedule 1, page 12, line 4, at end insert

'In section (1) of the 2002 Act, leave out ''of justice''.'.

No. 53, in

schedule 1, page 12, line 8, at end insert—

'(a) 2A section 4 is amended as follows,

(b) In subsection (2) of section 12 after the words ''Lord Justice of Appeal'' at end insert ''or a judge of the High Court''.

(c) leave out section 12A.'.

No. 54, in

schedule 1, page 12, line 24, at end insert—

'(1) In section 9 leave out the words ''Lay Magistrate'' wherever they occur and substitute ''Justice of the Peace''.

(2) leave out section 10.'.

David Trimble (UUP, Upper Bann)

May I say how much I look forward to the proceedings of the Committee, Mr. Benton? I am sure that we all want to remain as well focused as we can.

Amendment No. 47 is a technical amendment that would pave the way for more substantial amendments to the schedule. I shall not refer much to the text of that amendment, but it is appropriate to say

something about the other amendments. The substantive amendments in the group are amendments Nos. 55 and 28. The latter expresses our disdain for this legislation and this clause. When I say ''our disdain''—

Joe Benton (Labour, Bootle)

Order. We are not discussing amendments Nos. 55 and 28. We are discussing amendments Nos. 52 to 54 with amendment No. 47.

David Trimble (UUP, Upper Bann)

My apologies, Mr. Benton. I assumed that we were dealing with all the amendments listed under clause 1, but I see now that amendment No. 55 is on a separate line, so we shall leave the discussion on that until later. That enables me to deal in more detail with the amendments that I have tabled to schedule 1. Amendment No. 47 enabled me to table the other amendments to schedule 1. Amendment No. 51, which has not been selected, is also technical. The substantive amendments are amendments are Nos. 52 to 54. Amendment No. 52 would amend section 1 of the Justice (Northern Ireland) Act 2002.

The reason why I tabled the amendment is quite simple. I approach this legislation with a fairly fresh eye, not having served on the Committee that considered the 2002 Act. Looking at section 1 of that Act, which is entitled

''Guarantee of continued judicial independence'',

I was struck by the fact that it refers to the responsibility to

''uphold the . . . independence of the judiciary.''

That is an admirable sentiment, but why is the responsibility limited to those with responsibility for the administration of justice? It seemed to me that that duty should rest with all in government. All Ministers experience occasions on which they deal with the law and the courts, so it would be right for the duty to uphold the administration of justice to be general in its application, rather than limited as it is under section 1.

My next point also concerns a substantive matter. Section 4 of the 2002 Act relates to appointments of the Lord Chief Justice, Lords Justices of Appeal and High Court judges. It draws a distinction between the provisions for appointing the Lord Chief Justice and lord justices of appeal and for appointing High Court judges. The latter appointments come under the purview of the Judicial Appointments Commission and the procedures set out in section 12A of the Judicature (Northern Ireland) Act 1978, which was added by the 2002 Act. The amendments that I have tabled would treat High Court judges in the same way as the Lord Chief Justice and Lords Justices of Appeal. Will the Minister tell us why appointments of High Court judges have not been treated in the same way?

I want to draw the Minister's attention to the background context. Historically—I am referring to the situation in Northern Ireland under the previous devolved arrangements—a significant distinction was drawn between appointments. Under the Government of Ireland Act 1920, appointments of High Court judges, Lords Justices of Appeal and the Lord Chief Justice were made by the Lord Chancellor in Westminster, whereas appointments of county court

judges and lesser judicial appointments were made by the Government of Northern Ireland established under the 1920 Act. Under those arrangements, the devolved Administration had a role in making appointments up to the level of county court judges, but appointments of High Court judges and above were matters reserved for Westminster.

That was an important measure designed to ensure the independence of the judiciary at that level, and to ensure that there was no possibility of the local Administration exercising partial influence over senior judicial appointments. I should not have to spell out to Members of the Committee the significance of that. Under the 2002 Act, that safeguard is broached, and High Court appointments come under the influence of the devolved Administration. The more senior appointments of Lord Justice and Lord Chief Justice are reserved for a different procedure and can be made only by High Court judges.

By transferring the appointment of High Court judges into the purview of the devolved Administration, we are preconditioning the appointments of Lord Chief Justice and the lord justices of appeal. Is that wise? I have grave reservations about it. I am not sure to what extent that point was considered in the debate on the 2002 Act, but it is worth discussing it in this Committee and I look forward to hearing what the Minister has to say. We must ensure that, with regard to senior judicial appointments at the level of the High Court and above, we limit any partial influence that might come to bear.

Amendment No. 54 may be regarded as self-indulgence on my part. I cannot understand why the historic term ''justice of the peace'' is to be discarded in favour of the ugly term ''lay magistrate''. Why should we replace a phrase that has considerable antiquity, is familiar to people, and carries an indication of the nature of the role, with a comparatively flat and ugly phrase?

Dominic Grieve (Conservative, Beaconsfield)

I think that I can give the right hon. Gentleman the answer. The Government do not like the lay magistracy. Throughout their time in office they have shown a desire to reduce it to insignificance and to limit it to menial tasks in the courts in both Northern Ireland and in England and Wales. The terminology is linked to that.

David Trimble (UUP, Upper Bann)

That may very well be the case, although on that specific point the Minister may reply that we in Northern Ireland took a huge step towards reducing the significance of the role of justices of the peace in 1935. We restricted their role compared to their role in England and Wales and confined petty sessions work to resident magistrates, as they were then called. That name has also been changed and I disapprove of that too.

The purpose of the amendment is simply to ask the Minister why an historic term that is meaningful to people is to be replaced by an ugly flat phrase that no one will consider it an honour to have attached to their name. It is a simple point but it encapsulates a broader

point too. The Government have a tendency to wish to change things and rarely are the changes for the better. I can think of other name changes that have occurred in Northern Ireland, and also some here. I might even be inclined to say, Mr. Benton, that the name change in amendment No. 55, to which you directed me not to speak at this stage, is another example of this tendency to change things not for the better but for the sake of change. Amendment No. 54 might be slightly self-indulgent on my part but amendment No. 53 is a matter of significance. I would like to hear what the Minister has to say on that.

John Spellar (Labour, Warley)

I thank the right hon. Gentleman for the way in which he moved his amendment. As the Bill largely deals with the implementation of the Justice (Northern Ireland) Act 2002, there is a danger of revisiting many of the basic principles that were decided then by Parliament. Many arise from the review of the criminal justice system in Northern Ireland of 2000 and so were the subject of debate for some period before then.

I have no objection to hon. Members wishing to re-raise issues that they feel are significant, but for the good administration of justice and the progress of legislation we cannot keep revisiting issues that have been dealt with many times, although that might be counter-cultural in terms of many of the debates that take place on this subject in this House and elsewhere. I was on the Opposition team in 1994–95 when Mo Mowlam, as shadow spokesman, asked a group—I forget which—whether, as we were a bit tight for time, we could go back no earlier than 1920. I understand this, but there is a danger. No doubt there will be other times when there are issues of principle that have essentially been decided but which will still be the subject of debate. We need to bear in mind the need to move forward on the basis of matters that have already been agreed.

As hon. Members will be aware, the 2002 Act provides for the commission to be established after the devolution of justice functions to the Northern Ireland Assembly. I am sure that we will return to that on later amendments. The commission would be appointed by and make recommendations to the First Minister and Deputy First Minister. The First Minster and Deputy First Minister would also exercise the functions ancillary to the commission such as the making of grants and staffing. The intention to establish the commission in advance of devolution was clearly stated not only in the of criminal justice review but in the implementation plan, which was updated in June 2003. That is achieved by clause 1 and schedule 1, which transfer the functions of the First and Deputy First Minister to the Lord Chancellor.

As has been said, amendments Nos. 47 and 51 would widen the scope of schedule 1 to allow for amendments Nos. 52 to 54. What would amendment No. 52 do? It would amend section 1 of the Justice (Northern Ireland) Act 2002, which refers to those who have the duty to uphold the continuing independence of the judiciary. Under the amendment, that duty would apply to ''the administration'' rather than specifically those with

responsibility for the administration of justice. I accept that that raises an interesting point, and I have given it some thought since the amendment was published. I am not sure that I agree with it, but it demands further reflection—if not in the context of this Bill, in the context of the Constitutional Reform Bill in another place. I assure the right hon. Gentleman that I will reflect further on the suggestion.

The purpose of amendment No. 53 is to treat the appointment of High Court judges in the same way as the appointment of the most senior judicial posts. That is not what the criminal justice review recommended. It is clear that different arrangements should apply to the appointment of the Lord Chief Justice and lord justices of appeal, as they have responsibilities that could go beyond Northern Ireland. We are also dealing with a much smaller pool of potential appointees. The 2002 Act is deliberately framed to make different provision for the most senior judicial appointments, and we see no case for departing from that position or applying those arrangements to High Court judges.

Amendment No. 54 would remove the provision for the new judicial office of lay magistrate and refer instead to the office of justices of the peace. The criminal justice review saw the need for a new office of lay magistrates with a defined role in the criminal justice system, taking on some, but not all, functions of the justices of the peace. According to the review, some of the other functions are rarely exercised anyway. Existing JPs will be able to apply for the new post of lay magistrate, and I fully anticipate that many will do so.

We do not see why we should not proceed with appointments to the new judicial office with its defined functions, especially as that issue was debated fully during the passage of the 2002 Act. Accordingly, we cannot recommend that the amendments be made.

David Trimble (UUP, Upper Bann)

I thank the Minister for his brief and entertaining reply to the amendments. I say ''entertaining'' advisedly. I was struck by his opening comment that we cannot keep coming back to the issues, because we do. This is the second criminal justice Bill for Northern Ireland in a couple of years, and we have had three police Acts in the past few years. We keep returning to the issues, and in coming back, we can perhaps have second thoughts.

The Minister's other amusing comment was that the Bill was designed to implement the 2002 Act and that we should not revisit it. The 2002 Act is clear that the provisions for appointing judges and the Judicial Appointments Commission would come into operation on devolution of criminal justice matters. The Bill is designed to amend rather than implement the 2002 Act, which means that we are revisiting the provisions and changing them. That demands some explanation from the Minister, as what is happening is the reverse of what he said. His comments certainly helped to keep us amused.

I thank the Minister for his undertaking to reflect on amendment No. 52. I shall not press the

amendments, partly because of that undertaking but also because that allows me to pursue the issue in amendment No. 53 at another stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 55, in

clause 1, page 1, line 5, leave out 'Lord Chancellor' and insert

'Secretary of State for Constitutional Affairs'.

I welcome you to the Chair, Mr. Benton, and also welcome the Minister, who is my pair, although I have never been allowed to pair with him in the six years since I have been in the House. I wonder whether we should not have a special clause in the proposed civil partnerships Bill to ensure that the relationship is recognised and can be exercised in future.

The right hon. Member for Upper Bann (Mr. Trimble) was rather shocked to see amendment No. 55 on the amendment paper. He felt that there was an incompatibility between that and my stated views on the future of the office of Lord Chancellor. I reassure him at the outset that this is a probing amendment. Its purpose is to enable the Committee to consider the implications that have arisen from the change in the Lord Chancellor's status since the Justice (Northern Ireland) Act 2002 was passed, and also to find out from the Government what impact that might have on the Bill if further changes occur.

The Lord Chancellor is described in the Bill as the Lord Chancellor, but that is no longer his title. As a result of changes announced last summer, he has become the Secretary of State for Constitutional Affairs and Lord Chancellor. If the Prime Minister had had his way, that latter title would have disappeared; it was preserved only when it was discovered that it could not be magicked away because it featured in more than 500 pieces of primary legislation, and that the Lord Chancellor had set statutory functions.

Nevertheless, as Lord Woolf made clear in debates in the upper House on the future of the Constitutional Reform Bill and the Government's proposals, the Government no longer have the Lord Chancellor in his previous guise, but a hybrid that causes the judiciary a great deal of anxiety, because it mixes functions of a purely political nature with the previous duties aimed specifically at the administration of justice and the representation of the judiciary and judges' rights in Government.

I would therefore like to know at the outset why, notwithstanding those changes, the Bill still uses the expression ''Lord Chancellor''. I hope that the Minister will be able to answer the question, because it would be educational for the Committee to find out why that title has been retained rather than the long title of Secretary of State for Constitutional Affairs and Lord Chancellor.

The second issue that the Committee should consider is what will happen if the Constitutional Reform Bill goes through in its present form and intention. In the schedule to that Bill, will there be a move to re-word this legislation so that for ''Lord

Chancellor'' we substitute ''Secretary of State for Constitutional Affairs'', and if so, what will that Secretary of State's obligations be in respect of Northern Ireland? Will he, as has been suggested, be bound by the special statutory function, which it appears that the Government wish to give to him, to uphold the independence of the judiciary, or will that function extend only to England and Wales? How will his Northern Ireland functions be discharged, and how do the Government intend, in those circumstances, to provide adequate statutory protection to the judiciary in respect of the role previously exercised by the Lord Chancellor?

The issue is simple but raises matters of considerable complexity. It seems to me that in the way in which the Bill has been drafted, the Government have—probably intentionally—glossed over the matter.

Andrew Hunter (Independent Conservative, Basingstoke)

I echo the comments of other hon. Members in welcoming you to the Chair, Mr. Benton. In reply to my hon. Friend, I may say that I am heartily relieved to hear that this is a probing amendment. When I first read it, I reacted with incredulity, since at first sight it runs entirely counter to the main thrust of opposition to the Bill that our party set out on Second Reading: that aspects of the Bill amounted to politicisation of the process of judicial appointments.

I listened with interest to my hon. Friend. I concede that there are matters to be considered and that he raises valid questions. I, too, hope that the Minister's answers will satisfy us. However, I make the point with the utmost brevity to my hon. Friend, that although his is a probing measure, it probes in the wrong direction, because were that route to be followed, it would advance and enhance the very politicisation of the process to which we object.

In time, it is likely that the Secretary of State for Constitutional Affairs may be a man or woman with no legal background or experience, who would therefore, in my crude definition, be an ordinary party politician. It would be disadvantageous for such a person to have the power ascribed in the Bill to the Lord Chancellor.

Andrew Robathan (Conservative, Blaby)

My hon. Friend is pursuing an interesting argument. Does he think that a so-called ordinary party politician would be better or worse than someone appointed on the basis of having shared a flat with the Prime Minister 20 or 30 years ago?

Andrew Hunter (Independent Conservative, Basingstoke)

My hon. Friend scores a valid point. More seriously, in my judgment the further judicial appointments can be taken from elected party politicians, the better.

David Trimble (UUP, Upper Bann)

I, too, am relieved at the reason given by the hon. Member for Beaconsfield (Mr. Grieve) for tabling the amendment. I thank him for raising this serious matter, which I hope the Minister will consider carefully.

As I said in our debate on previous amendments, the measure significantly amends the 2002 Act, which made it clear that the provisions on judicial

appointments would come into operation only on devolution, yet now we are bringing them into effect in advance of devolution. The Minister should bear in mind the probabilities with regard to devolution, which was suspended in Northern Ireland in October 2002; there is no immediate prospect of its being resumed, although the Prime Minister made efforts this week on the matter. The prospects are not good, and it is a brave person who would say that devolution might be resumed in the next year or two. Even if devolution in Northern Ireland is resumed, there is little prospect of justice matters being devolved in the near future.

I said some time ago that there was not a sufficient basis for confidence in the community that the Administration in Northern Ireland could cope with the issues of policing and justice until there were some significant political developments, which are not in prospect. I advert to these matters to make the point that the arrangements in the Bill, which are not part of the 2002 Act but which bring forward parts of that measure to operate prior to devolution, are likely to be in effect for some time. I would like the Minister to reflect on that; the proposal for justice matters and policing to be devolved to the Administration in Northern Ireland and function normally, which was the intention of the 2002 Act, is not likely to be implemented for some time. Taking that into account, the points made by the hon. Member for Beaconsfield come significantly into play, because if the Government's proposals to change the legal system and abolish the Lord Chancellor's post take effect, what on earth will happen?

The post of the Lord Chancellor has evolved, and it was until recently a non-political position, particularly so far as the administration of justice was concerned. The new Secretary of State for Constitutional Affairs is a different sort of animal. That raises the question of what will happen if, in three or four years, justice matters have still not been devolved in Northern Ireland and we have no Lord Chancellor. The significant function of the administration of justice will be exercised by someone who is largely, if not wholly, a party political creature. There are some very serious questions here, and I am not sure what the answers to them are likely to be, but I want to direct the Minister's mind towards the prospect of these arrangements lasting for quite some time into the future.

I hope that I am not breaking any confidences when I say that on Tuesday, when one of the gentlemen who helicoptered into Hillsborough asked me how long I thought that the people in Northern Ireland, particularly Unionists, would be prepared to endure a situation in which the Northern Ireland Assembly was not functioning, my reply was, ''Last time, we managed for 25 years without it.'' We could be looking a long way into the future here: this is not just a temporary measure and should not be considered as such, because it could operate for years, perhaps decades. I should like the Minister to reflect on that and I look forward to what he has to say.

Nick Palmer (Labour, Broxtowe)

I welcome you to the Committee, Mr. Benton. Despite the Front

Bench spokesman's lukewarm endorsement of his own amendment, I find it quite persuasive. There is a lot of sense in it, and unless the Minister makes powerful arguments against it, I am minded to oppose any leave to withdraw it.

John Spellar (Labour, Warley)

That is a temptation that I might find myself able to resist. I welcome the hon. Member for Beaconsfield, who rightly drew attention to the fact that he is my parliamentary pair, but I must reject the slur on the electorate that he implied. We have been unable to use that arrangement because the electorate in their wisdom, or otherwise, have decided to give us such a substantial majority in the House that normal pairing arrangements have been suspended for a period of time. Welcome though it is to have a parliamentary pair, I do not think that he should hold his breath for such happy circumstances—from his point of view—to reassert themselves.

The hon. Gentleman went on to describe this as a probing amendment. It is probing in an odd way. The clause was changed in the other place on the instigation of an amendment tabled by Lord Kingsland. He is not, so far as I am aware, a card-carrying member of the Labour party, nor of the Liberal Democrats, or even of the Ulster Unionists. So far as I am aware, Lord Kingsland represents Conservative interests in the other place. Indeed, in a previous incarnation, as Mr. Christopher Prout, he was an MEP. Again, it would not break any confidence to reveal that he did not represent our party, the Liberal Democrats, or the UK Independence Party.

Desmond Swayne (Conservative, New Forest West)

He was our Chief Whip.

John Spellar (Labour, Warley)

Exactly. What is being sought is an amendment to a concession by the Government in response to pressure from the Conservative party.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps I am trying to rub it in a bit, but as we are debating the matter in this House, it would be useful to hear the reasoning behind the Minister's acceptance of the change and on the other points that I have raised.

John Spellar (Labour, Warley)

Quite simply, we took the point made in the other place that, for conformity and in current circumstances, the amendment relating to the office of Lord Chancellor had merit. That shows that we are a listening Government. This proposal, however, is slightly odd. I can only hope that, in the course of Committee proceedings, communications up and down the Corridor between Conservative spokespersons in the other place and those here will improve. [Interruption.] The hon. Member for Blaby (Mr. Robathan) wants to expound on communication.

Andrew Robathan (Conservative, Blaby)

Once upon a time, I wrote to ask to be the Minister's pair, and he kindly helped me to get another pair, whom I have not used for six years either. However, that is irrelevant.

Surely the point is that the amendment is designed to try to find out where the confusion lies in the

Government's mind. There must be some confusion, because on the one hand they are trying to abolish the post of Lord Chancellor and on the other they are talking about it in the Bill. We are not the Government—and incidentally, as a Back Bencher I do not speak for the Conservatives as a whole. As a humble Back Bencher, I am asking the Minister a question. I understand why we have made the proposal: to find out what the Government intend to do, because there seems to be no clarity of purpose whatever.

John Spellar (Labour, Warley)

Obviously, there has been a failure of communication not only between the Lords and the Commons, but between Opposition Front and Back Benchers. Quite straightforwardly, we took the point that, with the current office of Lord Chancellor, there was a consistency in retaining that in the Bill. Of course, when the Constitutional Reform Bill has gone through the House, there will be a broader change.

Andrew Robathan (Conservative, Blaby)

If.

John Spellar (Labour, Warley)

The hon. Gentleman implies that the will of the unelected House should prevail over the will of the elected House—a subject that we shall debate at considerable length.

Dominic Grieve (Conservative, Beaconsfield)

Before we get carried away, first, we have not heard the will of the elected House, because we have not considered the legislation, so the question of our will does not arise as yet, and secondly, I did not table the amendment just to be mischievous. I tabled it because it is important that the House should understand what the consequences of this legislation will be. The amendment provided an opportunity to pull the trigger, to let the House understand what will happen if the legislation is passed. I have raised a number of important points, to which I hope the Minister will reply. In particular, how will the Secretary of State, if the post of Lord Chancellor disappears, discharge his duties towards the Northern Irish judiciary?

John Spellar (Labour, Warley)

One presumes that, quite straightforwardly, the Secretary of State for Constitutional Affairs, who will be responsible for the judiciary, will assume the role of Lord Chancellor under the legislation that has been mentioned. That is why the Secretary of State was referred to in the first instance. However, we took the point made by the hon. Gentleman's colleagues in the Upper House on the need for current conformity.

I say to the right hon. Member for Upper Bann that we are talking about an office that has been held, for example, by Lord Hailsham, who was generally agreed to be a good Lord Chancellor but who was also a highly political figure in the history of the previous century. Significant political figures have held that post.

Notwithstanding that, the crucial question is why we are bringing forward the establishment of the Judicial Appointments Commission to before devolution. Quite understandably, that question has been asked. Recommendation 77 of the criminal justice review envisages the establishment of the commission post devolution of justice. It is, however, not against the early establishment of such a

commission. We consider that creating the commission—that has merit in itself, quite apart from any question of devolution of justice—is entirely within the spirit of the criminal justice review, because it recognised that the existence of the commission would enhance public confidence in the judicial appointments process. As hon. Members will be aware, the Government also propose such a commission in England and Wales, and there is already a Judicial Appointments Board in Scotland. Therefore, we should not delay a corresponding improvement to the judicial appointments system in Northern Ireland, which we believe will better meet the needs and expectations of the public.

Andrew Hunter (Independent Conservative, Basingstoke)

Some of us would be more convinced by the Minister's explanation if the genesis of the Bill did not lie also in the Hillsborough joint declaration and the political intent of that declaration. Although the Minister seeks to justify the early creation of the commission, he fails to convince us if we bear in mind the political origins of the Bill.

John Spellar (Labour, Warley)

I put it to the hon. Gentleman that the grounds for creating the Judicial Appointments Commission go beyond the question of the devolution of justice and of roles to the First and Deputy First Minister. The principles have their own merits. Circumstances that were not envisaged at the time of the original Bill now mean that there may be a delay. Should the benefits of a Judicial Appointments Commission—we already have the Judicial Appointments Board in Scotland—therefore be denied to the people of Northern Ireland in the interim? The commission has merits and is therefore worth bringing forward.

David Trimble (UUP, Upper Bann)

The reason why I originally sought to intervene was the Minister's reference to the criminal justice review. It might be helpful if the Committee reflects on what it said about the commission. Paragraph 6.102 of the review states:

''We believe that in Northern Ireland an appointments commission would enhance public confidence. But the factor which, above all, sways us in favour of recommending such a body is the imperative that if political responsibility for judicial appointments is to be devolved, the appointments process must be transparent and responsive to society's needs on the one hand, but on the other that it must be clearly seen to be insulated from political influence.''

The factor that ''above all'' swayed them in favour of recommending that body was devolution. The Minister is close to misleading the Committee, because bringing that system into operation in advance of devolution is a significant change to the review.

John Spellar (Labour, Warley)

I obviously beg to differ with the right hon. Gentleman. As he rightly pointed out, the first line of that paragraph states:

''We believe that in Northern Ireland an appointments commission would enhance public confidence.''

He is right that the devolution of justice would make the creation of an appointments commission necessary. We are arguing that the commission's merits make it desirable.

Dominic Grieve (Conservative, Beaconsfield)

My probing amendment was intended to be slightly tongue in cheek, because I was aware of

how the removal of the words ''Secretary of State'' had come about. However, I hoped that it would give us an opportunity to consider the consequences of future change. If the Constitutional Reform Bill ever goes through Parliament, which depends on the will of both Houses, the Government intend to attach a huge schedule that will include the alteration of the term in my amendment—the words ''Lord Chancellor'' will be replaced with ''Secretary of State for Constitutional Affairs''. That is why they were happy to give the concession in the House of Lords. However, as I sought to explain, the Secretary of State for Constitutional Affairs is not the same animal, as was made clear during debates in the House of Lords. Indeed, the Government may be beginning to accept that, because the Constitutional Reform Bill includes proposals for statutory protections for the independence of the judiciary as a result of the Lord Chancellor's removal.

I hoped that the Minister would be able to help the Committee on that point, but unfortunately we have been unable to develop that debate. The reason for tabling a probing amendment is to identify the key issue to the Minister so that his officials can brief him and he can respond if there is settled Government policy and briefing to be provided. I infer from how the debate has developed that no such briefing is available. I suppose that that has been useful in highlighting the black hole that exists on the matter, but I am slightly disappointed, because I had thought that the Government would by now have been able to provide a response.

It was never my intention to reverse what my colleagues in the House of Lords achieved, which was to get the Government to change the terminology. They had to do that, because it is nonsense to refer to the office of the Secretary of State while the office of Lord Chancellor remains and the function is that of the Lord Chancellor. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Andrew Hunter (Independent Conservative, Basingstoke)

I want to put on record the opposition of the Democratic Unionist party to clause 1. The reasons are known, so I do not need to rehearse them in detail. Simply, we cannot accept the Minister's argument that there is merit in the proposal to create the procedures for judicial appointment before devolved government has been reconstructed. We are aware of his argument, but it is found unconvincing for the simple reason, to which I referred earlier, that the real origins of the Bill are to be found in the Hillsborough joint declaration.

The joint declaration was drawn up with the Irish Government to help to create a climate in which the Assembly and Executive could be reconstituted. The declaration, and this Bill that stems from it, are in part a gesture of appeasement towards those who have scant regard for the judicial process in Northern Ireland or elsewhere. Although I shall not force a Division, I register opposition to clause 1 standing part of the Bill for that reason.

David Trimble (UUP, Upper Bann)

I rise to support the points that the hon. Gentleman has just made. He is correct, as the Minister has failed to give any reason why the provisions are being brought into operation in advance of devolution, which is the main provision in the Bill. The Minister's only reason was a throwaway line that there are merits in the proposal. He did not say what they are, however, and no case has been argued for the clause.

The hon. Gentleman's points about the Bill's origins are also correct. The legislation, which talks so much about ensuring the independence of the judiciary and legal system, has its origin in a purely political deal that has nothing to do with the merits of the issue or the independence of the judiciary. A falsehood lies at the heart of the proposal, and I note that no one is prepared to rebut the hon. Gentleman's points and that the Minister has so far been unable to add any justification for the clause.

Desmond Swayne (Conservative, New Forest West)

I agree with the right hon. Gentleman that there seems to be no reason for introducing the Bill before devolution, and, furthermore, there are powerful reasons for waiting, given the lack of legislative slots for Northern Ireland. The Minister is conducting a consultation on several provisions that could, if he had waited, have been included in the Bill. There is a powerful argument for delaying the Bill rather than rushing it through for no apparent reason other than a political one.

David Trimble (UUP, Upper Bann)

I agree entirely with the hon. Gentleman, particularly bearing in mind the representations that the Minister is receiving from all sections of the community in Northern Ireland for rapid progress on antisocial behaviour legislation. Later, we will consider a clause that could facilitate that, but if the Minister had held the Bill back, he could have included such provisions as well. He would then have been introducing a measure that was would be received in the House and by the community in Northern Ireland.

I want to make a further point to the Minister on the general principle. Reference has been made to Lord Chancellors and political influence. The key point that the Minister should bear in mind is that, so far as I am aware, there has never been any suggestion in modern times that persons discharging the duties of Lord Chancellor have acted other than in a non-party manner with regard to judicial appointments and the administration of justice. Some may have been very party-political animals in a different incarnation, but there is no suggestion that recent appointees have not acted impartially when discharging their functions as Lord Chancellor, especially in terms of judicial appointments. That is what concerns me about the Bill.

I will not repeat the arguments that I made on Second Reading. The Minister knows that it is my considered view that the creation of the Judicial Appointments Commission will result in more political influence on judicial appointments than hitherto. It will bring into the commission a number of people, admittedly a minority, who will be there for

purely political reasons and with largely political agendas. This is a wrong step. I would even oppose it being done after devolution, but to do so now will give certain political parties an influence over judicial appointments.

At the moment, appointments are made by the Lord Chancellor in a non-party political way, as most people, including people in Northern Ireland, accept. The clause, however, will allow political parties to influence judicial appointments, which is not a wise move in the present situation. That goes to the principle of the matter and it is why I oppose clause stand part. Like the hon. Member for Basingstoke (Mr. Hunter), having made my point, I do not wish to detain the Committee by dividing it.

Eddie McGrady (Social Democratic and Labour Party, South Down)

I rise briefly to respond to certain aspects of the debate. I do not intend to enter into any of the technical and legal areas, as I am ill equipped to do so. I simply point out that one of the necessities for the future of good government in Northern Ireland is openness and clarity about what is happening in the criminal justice system. It is important that ordinary men and women in Northern Ireland—the lay people—have a clear understanding of how matters are dealt with in the judicial system. They do not have that now. I see no great disadvantage in the representatives of the people of Northern Ireland coming together, through their various party groupings, to map out and propose a way forward that will satisfy the aspect of change that is required.

It is not a fault or an adverse factor that there is a political genesis to the clause; it is the expression of the will of the people of Northern Ireland. The office of Lord Chief Justice is lofty and mysterious to the ordinary person, particularly in the north of Ireland. This process, when it comes to fruition—I hope that devolution take place in whichever way—will enhance the reputation of the judiciary and the criminal justice system in terms of its openness. That openness will undoubtedly give it integrity and that integrity will be protected by its openness. I have no hesitation in lending my support and that of my party to the clause.

John Spellar (Labour, Warley)

I am not entirely convinced by the logic of the arguments advanced by the right hon. Member for Upper Bann and the hon. Member for Basingstoke. The 2002 Act provides for the creation of a Judicial Appointments Commission, to which I think the right hon. Gentleman objected in principle. However, as the creation of a Judicial Appointments Commission is already enshrined in statute, we are arguing about timing: whether we appoint a Judicial Appointments Commission before the restoration of a devolved Assembly and Executive and before the devolution of justice. If we believe there are merits in the creation of a Judicial Appointments Commission, and Parliament, like the reviews, is persuaded of that, there are good reasons for proceeding now, in order to deal with the issues raised by the hon. Member for South Down (Mr. McGrady).

We do not have to draw only on abstract principles as we can consider what has happened in Scotland, which the Select Committee on the Lord Chancellor's Department examined in its second report of the

2002–03 Session entitled ''Judicial Appointments: lessons from the Scottish experience''. The Committee reported a general impression that the Judicial Appointments Board

''had settled down well, and was seen as successful even by those who had initial reservations about its creation or structure.''

I quote for the interest of the Committee; I do not draw a direct analogy. The report continues:

''It was also particularly welcomed by those who regarded the old system of appointment as too open to political influence,''—

that deals with the point made by the hon. Member for South Down—

''too secretive or too dominated by those practising in Edinburgh''.

Some comments relate particularly to the Scottish experience, but the general impression is that things have worked well. We, too, believe that what is proposed will work well, which is why we support the clause.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 2 - Membership of the Commission

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 10, in

clause 2, page 1, line 9, at beginning insert—

'( ) In section 3 of the 2002 Act (makeup of the Commission)

(a) in subsection 5(a) for 'five', substitute 'six' and

(b) in subsection 5(c), for 'five', substitute 'four'.

The amendment relates to the composition of the Judicial Appointments Commission. The matter was considered in the other place, where it was argued that it would be wrong to have a majority of lay members on the commission; that the original justification for the structure in the 2002 Act was that it is a political necessity as part of devolution; and that as devolution is not taking place, there is no reason at present to proceed. I heartily endorse those views.

There is no reason why there should be a lay majority on the commission and every reason why the judiciary should be in the majority. A major concern in relation to the judiciary, here and in Northern Ireland, is that it should as far as possible be seen to be wholly depoliticised. In recent years, under the current appointment system, it has rarely, if ever, been suggested that the Northern Ireland judiciary is politically biased. However, there is a real possibility of problems if the composition that the Government propose is maintained. In the other place, my noble Friend Lord Glentoran made the point that it is necessary to provide reassurance to the Ulster Unionist community that the legislation is not simply another device to undermine the Union and the existing structure. In those circumstances, I believe that the amendment has considerable merit as it would be much more sensible to ensure that there is a judicial majority in the appointments commission. I await the Minister's response.

Andrew Hunter (Independent Conservative, Basingstoke)

I shall be equally brief, but I want to put on record concerns about the concept of ''reflective of the community''. On Second Reading, several hon.

Members made the point that the experience of the Unionist community in Northern Ireland does not lead it to respond favourably, on first hearing, to such expressions as ''reflective of the community''. One need only look at the composition and working of the Parades Commission, the Northern Ireland Human Rights Commission and the former Police Authority for Northern Ireland as well as recent appointments to the Independent Monitoring Commission. Such instances give rise to grave concern among Unionists as to the true purpose and intent of concepts such as ''reflective of the community''.

What precisely is meant by ''reflective of the community''? It is now a fact of life that Sinn Fein is the largest non-Unionist party in the Province. Sinn Fein remains inextricably linked with—indivisible from—the IRA. Is it seriously being suggested that a commission should be ''reflective of the community'' if that community includes representatives of a political movement that has total disregard for the judicial process?

John Spellar (Labour, Warley)

As the hon. Member for Beaconsfield said, the amendment would increase the number of judicial members and decrease the number of lay members of the new Judicial Appointments Commission. However, he then commented on the balance between lay members and those with a legal background. The commission will have two members from the legal profession: a barrister nominated by the General Council of the Bar and a solicitor nominated by the Law Society. Moreover, the Lord Chief Justice is the chairman of the commission.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps I expressed myself badly. I used the word ''lay'', when I should have used ''non-judicial''.

John Spellar (Labour, Warley)

I can only be guided by what the hon. Gentleman says, in the same way that I can be guided only by the amendments he tables.

Andrew Robathan (Conservative, Blaby)

Read his mind.

John Spellar (Labour, Warley)

It is probably easier to read his mind than the mind of the hon. Member for Blaby.

There was debate on the matter when the 2002 Act was going through the House and the House of Lords. The Bill does not alter the composition of the commission, nor, if I may say so to the hon. Member for Basingstoke, does this relate to the question of reflectivity, which we will deal with later.

The criminal justice review tried to strike a careful balance in terms of the commission's membership. We thought it right to identify the useful contribution that lay members could make to the appointments process—for example, the Judicial Appointments Board for Scotland has a lay chair. I believe that we have the right balance, and I ask the hon. Member for Beaconsfield to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I shall not withdraw the amendment; I shall test the opinion of the Committee and press it to a vote. The debate in the Lords on the matter, albeit brief, highlighted concerns, which were expressed from a number of quarters, that the composition of the

commission makes no sense and that it would be better to ensure greater judicial involvement.

My assessment of how Northern Ireland works, as limited as that might be, is that there is much to be commended in the view that a judicial majority is worthwhile, and I would like to register my vote on that.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 1, in

clause 2, page 2, line 1, leave out from 'Chancellor' to end of line 3.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 30, in

clause 2, page 2, line 1, leave out from 'Chancellor' to end of line 7 and insert

'to ensure those persons appointed to be lay members must so far as possible have a sophisticated understanding of legal issues as well as proven experience in selection procedure.'.

No. 2, in

clause 2, page 2, line 4, leave out 'their' and insert 'his'.

No. 3, in

clause 2, page 2, line 7, at end insert—

'(9) Those responsible for making appointments under subsection (8) shall carry out their duties with due regard to the need to promote equality of opportunity in relation to—

(a) religion and political opinion;

(b) gender;

(c) race;

(d) disability;

(e) age;

(f) marital status;

(g) dependants; and

(h) sexual orientation.'.

No. 49, in

clause 2, page 2, line 7, at end insert

'At the beginning of subsection 8 of section 3 of the 2002 Act, insert ''The lay members should be selected on the basis of the additional value they would bring to the Commission's deliberation, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''.'.

No. 50, in

clause 2, page 2, line 7, at end insert—

'(1) In Schedule 2 to the 2002 Act in paragraph 11 (Delegation) for sub-sub-paragraph (1) leave out from ''functions'' to end and insert ''except the function of selecting a person for appointment, or recommendation for appointment, to an office, to any of its committees.''.

(2) In Schedule 2 to the 2002 Act, leave out paragraph 12.'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I shall speak to amendments Nos. 1 to 3, which stand in my name, although I note that I have the support of the right hon. Member for Upper Bann on amendment No. 1.

These are probing amendments, the genesis of which lies in my consideration of the explanatory notes. They are helpful, but slightly misleading in stating:

''The Criminal Justice Review recommended that the Commission should be representative of the community in Northern Ireland (recommendation 79, paragraph 6.104).''

When one reads that paragraph, it becomes apparent that the review recommended that the lay membership of the commission be representative of the community as a whole. The Government proposals go beyond that, as they would make the entire commission representative. Amendments Nos. 1 and 2 would restrict the duties under subsection (1) to the Lord Chancellor and restrict the ambit to lay members of the commission, so that only the Lord Chancellor could appoint those members.

As the Government have taken a different position from that outlined in the criminal justice review, I thought it appropriate to table these amendments to find out why. In principle, I have no objection to the whole commission being reflective of the community, but I wonder whether that is slightly ambitious when one considers the nature of people who become lawyers. Most people will have heard my declarations of interest in that regard.

Andrew Hunter (Independent Conservative, Basingstoke)

I appreciate that the hon. Gentleman's amendments are probing, but will he clarify one aspect of his thinking on amendment No. 3(9)(a)? Before any restoration of devolved government, which has been suspended due to ongoing violence and non-decommissioning, would he envisage Sinn Fein being entitled by statute to places on the commission?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman raises an important point, which I could probably play around with for 15 or 20 minutes without drawing breath. However, I shall resist that temptation, particularly because the Independent Monitoring Commission report will be published in the next couple of weeks and anything I say about that today will probably be irrelevant after its publication.

Paragraph 6.104 of the criminal justice review contains an express reference to the absence of political input in the appointments process:

''In the Northern Ireland context it is important to keep any hint of political input out of the appointments process. The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the ability to assess the personal qualities of candidates.''

Appointing people because they are members of Sinn Fein, or indeed of any political party, does not seem to

have been part of the Government's thinking and I am content to go along with that.

In tabling amendment No. 3, I hoped that a very small part of a very small community—legal professionals in Northern Ireland—could be reflective of the wider community. Perhaps that is slightly ambitious, but I am more ambitious in that regard than the Government, who have not defined the term ''reflective of the community''. If the wording sounds familiar, there is a reason for that. It is more or less directly lifted from paragraph 3 of the section of the Good Friday agreement entitled ''Rights, Safeguards and Equality of Opportunity'', which states:

''Subject to the outcome of public consultation underway, the British Government intends, as a particular priority, to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation.''

If that is good enough for the ''Rights, Safeguards and Equality of Opportunity'' section of the Good Friday agreement, it is good enough for the Bill. There would be a workable framework to define a commission that is ''reflective of the wider community''.

For the interest of the Committee, we have established from the 2001 census that 40.3 per cent. of the population of Northern Ireland claim to be Catholic, 39.5 Protestant and 6.1 per cent. other Christian. I am not sure what the theology of ''other Christian''—neither Roman Catholic nor Protestant—is, but we shall pass on that. Other religions are 0.3 per cent. and none or not stated are 13.9 per cent. By gender, 48.7 per cent. of the population are male and 51.3 per cent. female. By ethnicity, 99.2 per cent. are white, and 0.8 per cent. non-white.

By age, the population are roughly the same as the rest of the country—26.8 per cent. under 18, about 60 per cent. aged 18 to 64 and 13.3 per cent. 65 years and older. The information is available for those who want to check the Government's performance in establishing a commission that reflects the wider community, if that is what they choose to do.

Desmond Swayne (Conservative, New Forest West)

I find that reasoning somewhat bizarre. To be genuinely reflective of the community, according to the minutiae that the hon. Gentleman defines in his amendment, the key question is how many male Catholics are disabled. Multiplying each minority by each minority will give us a genuinely reflective view in the way that he wants, but I do not believe that those statistics exist or that the quest is worth pursuing.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

If the hon. Gentleman believes that such reflective composition is not worth pursuing, I feel sorry for him, although I am not particularly surprised by what he says. He is perhaps a little careless in his use of language and he might consider the difference between ''reflective'' and ''representative''. That is a significant point. We are not proposing a commission that is entirely representative in some statistical way. My point is that the information is already in the public domain,

and it is possible, on an objective measure, to establish whether the commission will be considered reflective.

The same themes are pursued in the amendments tabled by the right hon. Member for Upper Bann, albeit in a different way, and I shall leave him to speak to those. I am particularly intrigued by the formulation in amendment No. 30, although I understand its genesis. I would love to see lay members with

''a sophisticated understanding of legal issues as well as proven experience in selection procedure'',

but I fear that that might exclude a lot of lawyers.

David Trimble (UUP, Upper Bann)

I rise to support the hon. Member for Orkney and Shetland (Mr. Carmichael) on amendment No. 1 and to speak to amendments Nos. 30, 49 and 50. Clause 2, and subsection (1) in particular, changes the commission from being representative of the community, as provided in the 2002 Act, to being reflective. I am interested in the hon. Gentleman's point, which he rightly made, that ''reflective'' is less rigid than ''representative'', and that consequently any arguments for numerical relationships and proportions are less strong if ''reflective'' is used. That point is right and well made.

I also endorse the hon. Gentleman's point that although the Minister has often prayed in aid the criminal justice review and talked about how the Government are implementing it, clause 2 is a significant departure from the review's recommendations. The hon. Gentleman is right that the review is clear about the fact that issues in respect of people appointed to the Judicial Appointments Commission being representative or reflective should apply only to the lay members, but the Bill applies them to the judicial and other members as well. That is a significant shift and a departure from the criminal justice review. It is important to note that.

I have to say to the Minister that it is no part of the function of a judiciary to be representative of the community. Oh yes, it is a good thing for the community to have confidence in the judiciary, but the judiciary should be appointed, as the Bill makes clear elsewhere, solely on merit. The function of the judiciary is to adjudicate on issues that come before it, so the important thing for the judiciary is to have knowledge of the law and good judgment in applying it. Being representative is not the point; it is not relevant. Indeed, to talk in terms of the representativeness of the judiciary is to make a grave mistake.

This country does not have an elected judiciary, although the Labour party seems, in many ways, to be imitating all forms of US political action and social and legal structure. The reforms that have been touched on so far seem to have been drawn quickly from the American experience and sketched out on the back of an envelope with no real consideration, but this matter is worth consideration. We do not have an elected judiciary. In our system, it is not part of the function of the judiciary to be representative. Its members are there to be impartial and skilled.

John Spellar (Labour, Warley)

The right hon. Gentleman will have noted that, although the criminal justice review used ''representative'', the Bill says ''reflective''. Does he think that the judiciary should not be reflective of the community?

David Trimble (UUP, Upper Bann)

I repeat my point: the function of the judiciary is to judge impartially issues that come before it, to apply the law and to do so exercising good judgment. It is not part of its function to be representative. Even using the weaker term ''reflective'' does not allow us to depart from that basic principle. It is a good thing for the public to have confidence in their judiciary, and part of that confidence should derive from the belief that the judiciary is applying the law in a skilled and impartial way. Other considerations are not appropriate. I note that the Minister was unable to offer any reason why, on this matter, the Government have decided to go far outside the provisions of the criminal justice review in this significant way.

That is why I tabled the amendment, which would remove the words that in effect extend to all members of the Judicial Appointments Commission the duty to be reflective. How on earth will the duty for the commission as a whole—lay and judicial members—to be reflective of the community be exercised in practice? It is worth reflecting on the commission's composition. Five members are appointed by the Lord Chief Justice. A barrister is nominated by the General Council of the Bar of Northern Ireland, and a solicitor is nominated by the Law Society of Northern Ireland. Five persons, originally to be appointed by the First and Deputy First Ministers, are now to be appointed by the Lord Chancellor.

Four different parties—two persons and two bodies—therefore make appointments: two appoint five members each and the other two appoint one each. Those different parties are to produce a result that, as a whole, is reflective of the community, but how on earth will that be done in practice? How will the Law Society, in making its one appointment, carry out its duty such that the commission as a whole is reflective of society in Northern Ireland? In practice, that is impossible to attain; it is impossible for the Law Society to do this.

Does the Minister envisage the two persons and two bodies getting together and dividing out the members? Perhaps they will take the list suggested by the hon. Member for Orkney and Shetland. One will say, ''Well, I'll go and look for an ethnic minority representative.'' Someone else will look for a man and someone else will look for a woman. That simply is not practical. I wonder whether any real thought has been given to this, but considering the political origin of the provisions and the persons likely to have contributed to their construction, I am not surprised that little thought was given to them and that they are impracticable. The point behind amendment No. 1 is that it is inappropriate, and in any event impracticable, to apply the duty to the judicial members. In parenthesis, one can add that, as the hon. Member for Basingstoke said, our experience of this is not good.

Paragraph 6.104 of the criminal justice review, part of which was quoted by the hon. Member for Orkney and Shetland, continues:

''The lay members of the Commission should be drawn from both sides of the community, including both men and women. This could be achieved through a legislative provision along the lines of section 68(3) of the Northern Ireland Act 1998 which provides that the Secretary of State should, so far as practicable, secure that the Northern Ireland Human Rights Commission is representative of the community in Northern Ireland.''

The hon. Member for Basingstoke will know that, of the various bodies referred to, perhaps the most risible appointments were those to the Human Rights Commission. The idea that the commission—in its first appointments or as it now exists—has ever represented the community of Northern Ireland is a bad joke. I remember the Secretary of State being unable to justify how the appointments to the commission reflected the political balance in the community in Northern Ireland. The majority political viewpoint in Northern Ireland was simply not represented on the commission. If that is how that provision operated, one wonders how this one will operate.

Amendments Nos. 30 and 49 are two different attempts to deal with the appointment of lay members. I say to the hon. Member for Orkney and Shetland that if I had to choose between the two efforts, I would prefer amendment No. 49. In this as in other matters, second thoughts are often better thoughts. It would be nice to think that we could find people who meet the criteria in amendment No. 30, but on second thoughts I prefer the terms in amendment No. 49. The hon. Gentleman will know—he read it out earlier—that this is the exact language of the criminal justice review.

I emphasise to the Minister that we should include those or similar words in the legislation. The reason for that lies in the fact that, in the event of devolution, the five lay members will be appointed by the First and Deputy First Ministers. The Minister should reflect on the comments made on Second Reading, particularly the view that all decisions are political. We must bear that attitude in mind. Some people in Northern Ireland regard everything as political. If someone of that cast of mind occupies the position of First or Deputy First Minister, they will approach lay appointments with political considerations in mind.

No names, no pack drill, but the Minister will see clearly a view expressed on Second Reading by one of the Northern Ireland Members that all appointments are political. That is the huge danger of creating this body. If the First Minister or the Deputy First Minister considers the appointment of lay members political, judicial appointments will be polluted by political considerations. That is not the criminal justice review's intention, which it is important to carry out.

Nick Palmer (Labour, Broxtowe)

Underlying the right hon. Gentleman's concerns on this and the previous clause is the assumption that lay members might be politically motivated and might overrule judicial members to appoint someone not as unbiased as one would wish. Does he not agree that because of the narrow majority of lay members it would require an almost unique cross-party agreement between lay members from all

parts of the Northern Ireland political spectrum to overrule the view of the judicial members?

David Trimble (UUP, Upper Bann)

The hon. Gentleman could have made that point even more strongly. As I read it there are five lay members of a commission of 13. They are therefore in the minority. Clearly they could never overrule a decision, but where a committee is making a collective decision, any person on that committee can influence that choice. I do not imagine that any member of the commission would explicitly state political factors in favour of appointments—or I hope that members of the commission would not do so—but I will not go back into history. I have already been chided by the Minister for referring to 1920.

If 13 people are choosing between various persons and are doing so by a majority decision, one, two or three members could sway that vote. They could do so for unexpressed political considerations if the persons appointed were of a political character. I referred to the comments made on Second Reading, which I believe show that some lay appointments would be made for political considerations. That is the danger to which this provision of being representative/reflective opens the door.

If some people are appointed for political considerations, it is likely that they will allow those political considerations to condition their approach, which might sway the appointment that is made. That is a huge danger. It is part of the reason why I have come to the conclusion that this concept, either generally or more particularly in Northern Ireland, is bad and will lead to political considerations being introduced to judicial appointments. Some hon. Members may be content with that. I am not.

If we have this commission—I would rather that we did not—we should ensure, in so far as we can, that the lay members are not of a political character. I do not think that the criminal justice review intended that they should be. That is why it is highly desirable to include in the Bill the following words from the review:

''The lay members would be selected on the basis of the additional value which they would bring to the Commission's deliberations, including such qualities as experience of selection processes, the court users' perspective and the utility to assess the personal qualities of candidates.''

Amendment No. 50 is extremely important, particularly in the light of the comments that I have made. It relates to paragraphs 11 and 12 of schedule 2 to the 2002 Act on the operation of a Judicial Appointments Commission and delegation in particular. Paragraph 11(1) states:

''The Commission may delegate any of its functions (to such extent as it determines) to any of its committees.''

The committee can therefore exercise those functions; this is not simply a question of it considering the matter and reporting back.

Furthermore, paragraph 11(2) states:

''A committee to which a function has been delegated may further delegate it (to such extent as it determines) to a sub-committee.''

We are moving further away from the 13-member commission. A sub-committee could exercise a

function, not just consider a matter and make a report with recommendations to the full commission, but actually delegate that function.

Furthermore—this is where the real evil lies—paragraph 12 states:

''If the function of selecting a person for appointment, or recommendation for appointment, to an office is delegated to a committee or sub-committee,''—

it is clear that the committee or sub-committee can make the appointment without reference to the commission—

''the committee or sub-committee must include a member of the Commission and, unless he is a lay member, a person who is eligible to be a lay member.''

One can therefore delegate to a committee or sub-committee that contains persons who are not members of the commission, and the only requirement for commission involvement is down to one person if it is a lay member. There could thus be a situation in which the commission delegates its functions to a committee that includes people who are not members of the commission, but nothing is said about who the other members of the committee should be. We are talking about the commission and how it is made up—appointed by the Lord Chief Justice, the Bar Council, the Law Society and the Lord Chancellor—and we have said that the commission must be reflective or representative of the community, but the functions can be delegated to a committee, and nothing is said about the other members of the committee, who could be anybody.

There is a huge error in the proposal, and it is open to massive abuse. It is technically open to a sub-committee that consists of a lay member, plus other persons who are not members of the commission, to make an appointment. This is a very bad provision, and I want the Minister to think carefully about it. The amendment would considerably confine the proposal.

John Spellar (Labour, Warley)

May I clarify the right hon. Gentleman's point? Paragraph 11(1) puts the ability to delegate in the hands of the commission, so any decision to delegate to a sub-committee would be a decision taken by the commission. It is not an external appointment of sub-committees but the commission itself deciding how to run its own business. Why does he have difficulty with that?

David Trimble (UUP, Upper Bann)

Because very important functions are given to the commission, especially with regard to appointments. What is the point of having a Judicial Appointments Commission if that commission is authorised to delegate its function of making appointments? The whole concept is wrong. Why are there detailed provisions about the make-up of the commission and the character of people on it if a little paragraph in a schedule gives the commission the capacity to delegate the function to what is effectively another body?

John Spellar (Labour, Warley)

Because it is the ability of the commission to make such a decision, especially when it is responsible for about a thousand posts in Northern Ireland, and not just in the court and the High Court—it goes wider than that, and even includes tribunals, as the right hon. Gentleman

knows. For example, it may be argued that to have the president of a tribunal engaged in the appointment of tribunal members is desirable practice. However, I return to the point that the delegation of the powers is in the hands not of Ministers but of the commission, which can therefore sensibly manage its own business. I have confidence in the commission to do that.

David Trimble (UUP, Upper Bann)

I come back to the huge scope of paragraphs 11 and 12. The Minister argues that there might be occasions on which it is sensible to have a committee or sub-committee. Perhaps, but why delegate the entire function? Once a function is delegated, the commission is dependent on the commission members in the committee or sub-committee for information about what is going on. The link can get so tenuous as to be down to a single person, particularly if that person is a lay member who reads into the provisions the justified concern that I have expressed about how they might be appointed post-devolution. The provision is dangerous.

John Spellar (Labour, Warley)

To clarify the position, I repeat that the commission itself will delegate power and that a majority of its members are from the legal profession in one form or another. However, it seems to me that if responsibility for appointment was delegated, but those who had been so delegated had to report back to a body that could overturn their decisions, there could well be an absence of due process. Those who have been appointed on the sub-committee will have interviewed the candidates and formed a judgment of their qualities. To have that decision overridden by those in the commission who were not involved in the interview process would cause difficulties in the commission's conduct. Those who went through the initial process might also have a legitimate cause for complaint.

David Trimble (UUP, Upper Bann)

The Minister is arguing against himself. There is a huge contradiction in his argument. He started by saying that the creation of the sub-committee was the work of the commission and that we should trust the commission to carry out its functions. He then said that it would be wrong for a committee of perhaps only one person, to which the power to make certain appointments had been delegated, to report back to the commission as a whole, so that the other 12 might consider any decision. He thinks that that would be a bad thing. Either he trusts the commission or he does not. If he trusts the commission enough to enable it to delegate functions in that way, why does he not trust it to oversee those functions? There is a huge contradiction in his approach.

John Spellar (Labour, Warley)

I think not. If the commission thought that process had not been correctly conducted, it might be appropriate for it to do what the right hon. Gentleman describes. However, it has delegated those powers because it has confidence in the persons whom it has appointed to the sub-committee to make a judgment based on the interview, the information and the impression that they form of the candidates. The issue is not the integrity or the judgment of any member of the commission. The important point is

that those members of the sub-committee have been able to avail themselves of all the facts. The ability to delegate the relevant function to the sub-committee would indicate that confidence. I do not see that that is an abuse of process.

David Trimble (UUP, Upper Bann)

Again, I return to the fact that the Minister is talking about the confidence that he implies he would have in the non-commission members, who could easily form a majority of a committee or sub-committee. He implies that they are to be trusted enough not to have what they are doing overseen by the rest of the commission.

Who are these people? We do not know. They could be anybody. The duty that the commission should be reflective of the community that the clause provides for does not apply to the committee or the sub-committee—that is, unless the Minister wants to introduce an amendment. Why is there no provision about the character of the appointments? That is not a matter that the criminal justice review appears to have contemplated, although I stand to be corrected—and there are some here who are in a position to do so. However, the commission can delegate any of its functions to committees. That needs to be thought about carefully. We need to receive some information about that.

With respect, the Minister has provided no information at all. The delegation includes the core activity of the commission, namely making appointments. Surely we should know more about this. We are touching on the core matter—one that I consider of huge importance. He may be able to give more detailed comments later, and in the absence of some real explanation of this important issue, which some hon. Members might consider worth a vote, my inclination would be not to press it to a Division now. I want to give him a chance to return to it.

I should be anxious to pursue the matter on Report, if we get to Report, because it appears that a little paragraph tucked into the provisions will open up a huge hole in the operation of the commission. In view of the political and religious considerations, there is a need for something to be spelled out in detail. The Bill does not include that, and unless I have overlooked it, neither does any of the material that we have before us.

Andrew Hunter (Independent Conservative, Basingstoke)

I am grateful to the right hon. Gentleman for raising the issues covered by amendment No. 50, which I had not detected. It reveals a huge hole, as he said. The question is of the utmost seriousness, and the Government must surely pay attention to it. My initial reaction is that it is wholly unacceptable that, while the Government emphasise the idea of the commission as a whole being ''reflective of the community'', it should be possible for the constitution of a committee or sub-committee not to reflect that principle at all. That involves more than a tension. It creates a potential contradiction, and it is a point that needs to be seriously attended to.

I fully support the right hon. Gentleman on amendments Nos. 30 and 49. I share his deep concern about the concept of being ''reflective of the

community''. It is fundamentally flawed and impractical to implement. As the amendments suggest, the only consideration should be the quality and qualifications of the people concerned.

As to the probing amendments tabled by the hon. Member for Orkney and Shetland, I thank him for his reply to my intervention about political requirements, and how far that matter should be extended. I understand his wish to sit on the fence for the time being, so we shall return to that later.

However, will the Minister, in responding to those probing amendments, deal with another issue that perplexes me? Let us suppose that the Bill is enacted and the Lord Chancellor and the other people responsible for making nominations set about trying to secure membership of the commission that is reflective of the community. What will happen if someone is disaffected or disgruntled? That could happen if an applicant was overlooked. I apologise if I am guilty of an oversight, but the Bill appears to me not to include any provision for that.

To whom should the disgruntled person bring a case? Should it be the Lord Chancellor, the very commission that rejected his application, or the Secretary of State for Northern Ireland? Are there, or should not there be, established procedures for such a person to follow? Who is to hold the Lord Chancellor responsible for ensuring that the commission is reflective of the community?

Dominic Grieve (Conservative, Beaconsfield)

This has been a lengthy debate, and I do not want to take up too much more of the Committee's time. Amendment No. 1 was the key amendment, but we have rather wandered away from the central issue, which the hon. Member for Orkney and Shetland very cogently explained.

The 2002 Act did not provide for judicial members of the Judicial Appointments Commission to reflect the community as a whole, but the Bill does. When the matter was considered in another place, various points were made about how difficult it is to find the right people to sit on the commission, given the small pool of judges from which candidates can be drawn. It is slightly strange, therefore, that we should introduce to the Bill a measure that provides—the Minister will correct me if I am wrong—for judicial members to be bracketed according to how they might reflect the wider community.

As the Minister knows, the Opposition support the principle that the judiciary should reflect the community as a whole, although we also emphasise that judges must be appointed on merit. Once judges are so appointed, when does one end the scrutiny of the commission's composition? Must every sub-committee reflect the community as a whole? That is the road down which the Government have chosen to go.

When members of the judiciary are being chosen from the very small pool of available talent to sit on the commission, it appears that the Government now think it appropriate that their religious background—

that is what we are talking about—should be one of the factors considered. That bothers me.

I realise that circumstances in Northern Ireland are unusual, and heaven knows we have introduced enough legislation over the past few years to try to accommodate that, including setting up a system of devolved government of the most bizarre kind. I have always accepted it, given that it may be the only way forward, but the way it operates is, indeed, bizarre. This is my point: having chosen people to be judges—therefore, the assumption is that they are capable of discharging their functions without fear or favour and without bias—are we then to say that those who will sit on the Judicial Appointments Commission must be vetted for external appearances rather than on the basis of their judgment or whether they can make a proper contribution to how the commission operates? It bothers me that we are doing that.

We are breaking down the scrutiny of who is or is not to be appointed almost to the point of absurdity. I can see the force of the argument when it comes to lay representation, because that will be a highly politicised issue, but I ask the Minister to think carefully about taking the same approach with the judiciary.

I think that there is a majority of Roman Catholic judges in the High Court in Northern Ireland. I may be wrong about that, although I see that the right hon. Member for Upper Bann is nodding. I must say that I am totally ignorant of the religious affiliation of senior judges in Northern Ireland, just as I have not the slightest clue about the affiliations of judges in England. That is as it should be. Are we really to say that someone who would be right for appointment to the commission because he has taken a great interest in the recruitment of judges and in the professional advancement of those in the solicitors' profession and those at the Bar could not be appointed because the balance meant that the commission needed either a Protestant or Catholic? That would be most unfortunate.

It may be a distant aim, but we should be striving for a day in Northern Ireland when the question of people's religious affiliation is, as it should be, a total irrelevance. Then we could get rid of the complex legislative structure that tries to provide balance. If we cannot even make a start with those who have passed the scrutiny test in becoming judges in the first place, I despair. This troubles me, and I believe that amendment No. 1 has a great deal of force.

John Spellar (Labour, Warley)

There are several amendments and several issues to engage with. Amendment No. 1 would remove the duty to secure a reflective Judicial Appointments Commission from those responsible for making nominations to it—the Lord Chief Justice, the Bar Council and the Law Society. As the hon. Member for Orkney and Shetland rightly pointed out, amendment No. 2 is consequential.

Clause 2(1) will amend the 2002 Act to provide that the Judicial Appointments Commission as a whole should be, as far as it practicable, reflective of the community in Northern Ireland. Notwithstanding the commission's ability to delegate functions and roles to committees and sub-committees, which we have just

debated at length, it is still a commission as a whole. We must consider the question whether the burden of reflectiveness should fall on the lay membership or on the commission in its entirety.

The provision requires the commission as a whole to be reflective of the community. Those who have the power to nominate members will have to play their part in working towards that objective, and it is not enough to require the Lord Chancellor alone to address reflectiveness when he does not have responsibility for appointments to the commission. Accordingly, I ask for amendments Nos. 1 and 2 not to be pressed.

David Trimble (UUP, Upper Bann)

Before the Minister concludes on amendment No. 1, will he tackle my practical question on how the other bodies—the Bar Council, the Law Society and the Lord Chief Justice—will fulfil the duty that he is imposing on them? That is particularly important for the Bar Council and the Law Society, which each make only one appointment.

John Spellar (Labour, Warley)

I understand what the right hon. Gentleman says, but I again stress the point, which he has graciously accepted, that ''reflective'' is less prescriptive than ''representative''. We have moved away from the review in that regard. I accept that the objective will require those making nominations to consider arrangements between themselves on how this might be achieved, notwithstanding the fact that they must also consider appointments on merit. I understand that there are possible tensions between the two principles, but they are both extremely important.

David Trimble (UUP, Upper Bann)

The Minister says that the bodies should consider arrangements. What arrangements, and how will they be taken into consideration? I refer again to the Bar Council and the Law Society, each of which makes only one appointment. What arrangements could be made with regard to those two bodies?

John Spellar (Labour, Warley)

Those bodies might undertake collective consideration or communicate with each other about whether, consistent with principles of appointment on merit, they can also achieve reflectiveness in the commission. I am not saying that this would be the outcome, but I am sure that the right hon. Gentleman concedes that it would be undesirable if the commission was completely unreflective of the community in Northern Ireland.

David Trimble (UUP, Upper Bann)

I thank the Minister for giving way again, because I want to probe his thinking further. He says that the bodies might communicate with each other. How will they do that and what will they say? Will there be an arrangement such as that which pertains between the Law Society and the Bar, where they get together and the Law Society says, ''We'll appoint a woman solicitor if you appoint a male barrister.''? Is that the arrangement that the Minister is thinking of? If there was an arrangement of that nature, each body would individually be guilty of discrimination, because it would be making an appointment on the ground of gender. Those bodies

will make only the one appointment. I ask the Minister again: what arrangements will there be and how will they be legal?

John Spellar (Labour, Warley)

Again, from the point of view of the commission, and lawfully trying to achieve a reflective commission, I keep coming back to whether the right hon. Gentleman thinks it would be desirable to have a completely unreflective commission. In the same way, we may consider the parallel between the laws of chance and the laws of probability.

The right hon. Gentleman takes the example of the involvement of women in the law. I fully understand that, historically, the legal profession has contained a high percentage of males and that a limited number of women moved up through it. As the number of women engaging in the legal profession has increased, we would think it slightly odd if, for example—I am in no way suggesting that this is the exact situation—that was not reflected in appointments as people move up through the system.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Surely, by definition, it is accepted that the non-lay appointments are not going to be representative. That is the reason for having the lay representatives on the commission.

John Spellar (Labour, Warley)

There is also the matter of considering the commission as a whole to try to make it reflective. Reflective is the important term. We must recognise that we may be talking about a process over time, and that these are the aspirations and objectives that we are working towards. The principles are consistent. The hon. Gentleman, on reflection, might even consider that, from a Liberal Democrat point of view, the objective is desirable.

David Trimble (UUP, Upper Bann)

I do not want to labour the point as it has already been made, but I have just one more request to make of the Minister. Will he please think about this matter and consult with whomever he considers appropriate? Will he also undertake to give either the Committee or the House on Report some indication of what arrangements he has in mind and how they will operate in practice? I refer to the example given earlier. Some arrangements that might naturally come to mind would be illegal and would involve discrimination contrary to legislation. I do not expect the Minister to answer that point in detail now, but perhaps he will come back on Report and say what arrangements he has in mind.

John Spellar (Labour, Warley)

I certainly give the right hon. Gentleman that undertaking. The requirement is for the commission to be reflective

''so far as is practicable''.

We do not believe that that would lead to discriminating unlawfully. However, I assure him that I will reflect further on the points that he has raised.

I will return to amendment No. 3 shortly. Amendment No. 30 would require that the First Minister and Deputy First Minister must, as far as possible, ensure that lay members of the commission

''have a sophisticated understanding of legal issues as well as proven experience in selection procedure.''

The amendment would also remove the requirement that the composition of the commission, as far as reasonably practicable, be

''reflective of the community in Northern Ireland.''

Amendment No. 49 would ensure that lay members are

''selected on the basis of the additional value they would bring to the Commission's deliberation''.

It describes qualities such as

''experience of selection processes, the court users' perspective''

and the ability to

''assess the personal qualities of candidates.''

We might have to define ''the court users' perspective'' carefully in that context.

I appreciate hon. Members' concern that the lay members should bring valuable experience to the commission. We obviously want individuals who can make real and meaningful contributions. The qualities set out in both amendments are laudable. Indeed, we hope that lay members could bring such qualities to the commission, but we do not think it necessary to specify in primary legislation what those desirable qualities would be.

I am sure that hon. Members agree that the matter would be best dealt with administratively. Accordingly, I urge that those amendments should not be pressed.

Amendment No. 3 would make specific the matters to be regarded when seeking to secure a commission that is reflective of the community. It is helpful to think about what is meant by the term ''reflective'', and no doubt many of the matters listed in the amendment are relevant to that issue. Having said that, we have always made it clear that political opinion is not a factor in the judicial appointments process, and we do not propose to consider it in relation to appointments to the commission.

We hope that members of the commission will be reflective of the community in terms of their community background, gender, age, ethnicity, disability and the part of Northern Ireland to which they consider themselves most closely associated. We do not think that there would be an advantage in making the Bill prescriptive.

The Government are fully committed to a reflective commission, and it is right and proper that those undertaking such important work should be identifiable with the community they serve. We do not need to go further than the current provisions. I am confident that when the commission is established it will be reflective of the community as far as possible, and will command the confidence of the community

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will forgive me, but those two sentences were the most wonderful official gobbledegook. It left me completely unable to fathom how a very distinguished Jewish lawyer—who is a member of a very small minority—could be reflective of the community. He cannot, because he may be in such a tiny minority within Northern Ireland that he is reflective of no wider community at

all, but he might be the perfect person to be a judge and serve on the commission.

David Trimble (UUP, Upper Bann)

There are distinguished Jewish lawyers.

Dominic Grieve (Conservative, Beaconsfield)

I am well aware of it, but there is a very small Jewish community. Once the reflective basis is introduced, such people will be squeezed out, not brought in.

John Spellar (Labour, Warley)

I say to the hon. Gentleman that that would be the case were we saying that there should be a representative quota. That is precisely why—unlike the review—we use the term ''reflective'' rather than ''representative''.

Andrew Hunter (Independent Conservative, Basingstoke)

I asked the Minister to clarify whether there would be some formalised means of redress for an aggrieved person. Did I understand him to say that he does not intend to establish any procedures whereby someone who believes that the commission is not reflective of the community can take action?

John Spellar (Labour, Warley)

I shall have to come back to the hon. Gentleman on that point, because I would stress that the matter properly depends on the use of ''reflective'' rather than ''representative''. We are not talking about a quota system; we are looking at a duty for those responsible for appointments to seek to achieve a reflective body. That body would, therefore, be one that commands the widest possible confidence in the community. I am not sure that people would have redress on the matter, and I am not sure whether they could take action on judicial review. I hope that before the end of my contribution, enlightenment will come to me and I shall be able to respond to the hon. Gentleman's point.

Amendment No. 50 would preclude the commission from establishing a committee to select someone to fill a judicial vacancy. We dealt with that matter at some length. Interestingly enough, the criminal justice review report did not envisage that the commission as a whole would conduct interviews. It would clearly not be practical to have an interview panel comprising 13 people. The functions of the commission in relation to particular appointments would have to be carried out by a body other than the commission in its entirety. Paragraph 6.105 of the review says:

''nor do we believe it necessary that each individual panel should consist only of members of the Commission, although that may well be the case for the more senior appointments.''

The review also recommended that a selection panel should have one lay member and a member of the judiciary at the tier to which the appointment would be made.

As I said during the lengthy exchange with the right hon. Member for Upper Bann, the commission is independent and best placed to decide how it carries out its responsibilities most effectively within the parameters defined by the 2002 Act. With some appointments—for example, to specialist tribunals—the commission might want those making the selection to include someone with detailed knowledge of the tribunal. In those circumstances, it might be necessary to include on the selection panel someone other than a commission member. However, we would expect a different approach when selecting people for

appointment to the High Court and there would be a strong case for saying that only members of the commission should be involved. The Lord Chief Justice, who will chair the commission, has agreed that a committee of the commission—the assessment panel—will be established for High Court appointments. It will be chaired by the Lord Chief Justice or, if he is unavailable, a Lord Justice of Appeal, and will comprise at least two other members of the commission, including a lay member and another judge. Only members of the commission would be on the committee to select a High Court judge.

David Trimble (UUP, Upper Bann)

The material that the Minister has just given us is interesting and we want to reflect on it. I note that he said that there is a strong case for ensuring that the committees are composed in particular ways and that senior people, particularly senior judicial members, should chair them. If there is a strong case for ensuring that, why is he content to leave in existence a provision containing absolutely no safeguard?

John Spellar (Labour, Warley)

I have alluded a number of times to the composition of the commission, and we believe that we can rely on the commission to discharge its functions appropriately. We have given it the enabling power and we have confidence in it. Interestingly, we believe that a similar case can be made for some appointments lower down the system, but we do not propose to tie the hands of the commission in that regard. We have confidence in the commission, and I ask the hon. Gentleman not to press the amendment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is almost a convention that at this stage of our consideration the Minister says that we have had a good debate. I do not think that we have had a particularly good debate, because there has been no force of argument from either side. I say to the

Minister, with regret, that his arguments were unusually and uncharacteristically lacking in weight. The right hon. Member for Upper Bann suggested that he would reflect on the arguments on amendment No. 1. I sincerely hope that he will do so, because the issues that we have raised remain unresolved to my satisfaction, and they are substantial and important.

On amendment No. 1 and its consequential amendment No. 2, the difficulty is that the Minister has demonstrated the wisdom of the approach taken by the criminal justice review in the first place. The requirement for lay membership of the commission is there because the people who would be drawn from the legal profession would not necessarily reflect the community as a whole. To extend that to the commission as a whole would create the host of problems that the right hon. Member for Upper Bann raised, and I hope that Minister will deal with those.

On amendment No. 50, it is exceptionally dangerous to offer unfettered discretion for delegation to such a commission. There are any number of ways in which it might be abused. I am not suggesting that it would be, but the possibility exists and there should therefore be safeguards. The parallel that came to my mind was with local government. For example, planning decisions are considered by a planning committee but ratified by the council as a whole. That is eminently sensible. It is not unusual and there are plenty of precedents.

I am mindful of the time and have no doubt that we shall revisit the issues, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

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

Standing Committee D

Clause 2 - Membership of the Commission

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 11, in

clause 2, page 2, line 8, leave out subsection 2.

At the risk of going over ground that was touched on in the other place, we cannot allow subsection (2) to pass without probing the Government on the changes that they have introduced. The Minister will be aware that the Justice (Northern Ireland) Act 2002 provided that a judicial member of the Judicial Appointments Commission would hold office, in effect, for such a period as was linked to his tenure as a judge, unless, of course, he opted to come off the commission. The change provides for a ceiling limit of 10 years' service and for such a member not holding office for more than five years at a time.

I am not unsympathetic to the Minister's aim. I can see the merit of a throughput of people providing expertise to the commission, but the point was rightly made in the other place that the number of judges available to do the work is pretty limited. There must be concern about whether there will be the required number of judges willing to do the work, because it is probably quite onerous, and whether we will end up with a shortage of judges. At the same time, judges who have been doing excellent work will not be able to continue as a result of the provision. I should be grateful to hear the Minister's explanations and views on the subject.

John Spellar (Labour, Warley)

The 2002 Act already places time limits on the other members of the commission—the lay members and the legal professionals—and it seems sensible to treat all members consistently. Under the proposed time limits, judicial members would be able to serve for up to an aggregate of 10 years, and a judicial member could be appointed afresh on being appointed to a different judicial tier. I trust that that will help to assuage the concern that the hon. Gentleman expressed that the time limits could unduly restrict membership of the commission. We do not regard the provision as unduly restrictive. Indeed, we are confident that we will have no difficulty in finding judges of the highest calibre to serve on the commission. I hope that I have reassured him on that.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I should like to push the Minister a little further on the issue. I broadly agree with the terms of the amendment tabled by the hon. Member for Beaconsfield (Mr. Grieve). I, too, am interested to know the genesis of the change. It seems not to have

been in the review or even in the joint declaration. Did the Government agree to it as part of a discussion with one of the other parties? That is something on which we have made our views known in the past. I am sure that there must be a good reason for the proposal, but we established in this morning's debate that there was no particular necessity for lay and non-lay members to be treated alike, so I should like to hear exactly what the Minister is getting at here. Is there a good reason for the change or, as we are talking about judges, is it just some ministerial frolic?

John Spellar (Labour, Warley)

That is scarcely likely. To some extent, the point was made by his hon. Friend the Member for Beaconsfield.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

He is not my friend.

John Spellar (Labour, Warley)

The hon. Gentleman seemed so friendly. It just shows that, as always with the Liberal Democrats, appearances can be deceptive. The point is that 10 years is quite a significant period and, even though I accept that there is a limited pool—that point was also made in the House of Lords—we want to engender some throughput. For that reason, we have proposed the change.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for that explanation, but I am not completely satisfied with the answer that the Minister gave to the hon. Member for Orkney and Shetland (Mr. Carmichael) about the genesis of the change, although I can see that there is a degree of logic behind bringing the lay and judicial members into line. My experience in many areas of life is that it tends not to be a good thing for people to stay on committees for too long; it is always desirable for new people to join.

The Minister has not answered adequately, which will leave the lurking suspicion that there may be an agenda along the lines of that to which the hon. Member for Orkney and Shetland—whom I would call a friend in any place outside this context—referred. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Andrew Hunter (Independent Conservative, Basingstoke)

My position on the stand part debate on clause 2 is very much the same as the position that I adopted on clause 1. Despite all the arguments that we have heard from the Government, I still believe that the concept of ''reflective of the community'' is fundamentally flawed and therefore wholly undesirable. I maintain that appointment to places on the commission should be based exclusively on the quality and qualifications of individuals. Unless clause 2 is amended along the lines proposed by the right hon. Member for Upper Bann (Mr. Trimble), I will find it unacceptable, and although I do not propose to force a Division on the clause, I wish to put on record my opposition to it.

Question put and agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3 - Duty of Commission to secure judiciary reflective of the community

Andrew Hunter (Independent Conservative, Basingstoke)

I beg to move amendment No. 24, in

clause 3, page 2, leave out lines 24 to 38.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 12, in

clause 3, page 2, line 25, after 'of', insert 'continuous'.

No. 31, in

clause 3, page 2, leave out lines 26 to 38.

No. 56, in

clause 3, page 2, line 26, after 'of', insert 'continuous'.

No. 13, in

clause 3, page 2, line 36, at end insert—

'(11) The Commission shall submit a report annually to the Lord Chancellor on the progress of the programme of action and the Lord Chancellor shall lay this report before Parliament.'.

Andrew Hunter (Independent Conservative, Basingstoke)

The amendment is the first of three that I have tabled at the request and on behalf of the Democratic Unionist party. I hope that the Minister will recognise that in his reply. My place on the Committee is due to my having been nominated by the Democratic Unionist party.

The purpose of amendment No. 24 is straightforward and transparent. It seeks to address an important part of our grave concern about the Bill, as expressed on Second Reading. That concern was shared by all Northern Ireland Unionist Members and by many Conservative Members.

If the amendment were accepted, the Bill would require that:

''The selection of a person to be appointed, or recommended for appointment, to a listed judicial office . . . must be made solely on the basis of merit.''

No other consideration of any nature whatever would be taken into account—only a candidate's merit.

Sadly, nothing that the Government said on Second Reading or that the Minister said this morning significantly calms our fears on this matter. I agree with the right hon. Member for Upper Bann, who argued in earlier proceedings that the concept of ''reflective of the community'' was fundamentally flawed and impractical, and that only the qualities and qualifications of individuals should be considered when judicial appointments were made. There is a strong argument to be made that subsections (9) and (10) not only undermine and weaken the requirement of subsection (8)—that appointment should be made on the basis of merit alone—but that when put into practice, appointments ''reflective of the community'' would ultimately be incompatible with appointment on the basis of merit alone.

I agree with the Government that confidence in the justice system is essential, but I do not accept that there is any shortfall of confidence in Northern Ireland's judiciary that is worthy of mention. In short, there is no need for the provisions contained in lines 24 to 38; those provisions are more likely to undermine confidence in the judiciary and the judicial system than to promote it. Where is the evidence to

support the allegation that Northern Ireland's judicial system, and the judges that are an integral part of it, are unfair or biased?

Although I had differences of opinion with Lord Mayhew when he was Attorney-General and Secretary of State for Northern Ireland, I accept the view that he put forward when the Bill was debated in another place. He stated that he did not recall

''any serious lack of public confidence in the judiciary ever manifesting itself.''

He commented that

''the judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law.''

He continued that there was

''no significant or telling imbalance'',

that

''members were appointed . . . solely on merit'',

and that

''marginally more appointments were made from those with Catholic backgrounds''.

He argued that

''public confidence in the judiciary has been deservedly very high.''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107–08.]

The Committee is aware that the concept of ''reflective of the community'' has replaced ''representative of the community'', and that is without doubt a step in the right direction. Nevertheless, the concept of ''reflective of the community'' has the potential of moving us towards the mistaken and fallacious 50:50 equality of outcome approach, especially when one bears in mind the genesis of the Bill: the Hillsborough declaration in March 2003. It is hard to avoid the conclusion that the Government are once again trying to appease the provisional republican movement and its fellow travellers. Some time ago, the Government fell into the trap that once one starts paying the blackmailer, he comes back for more. This aspect of the Bill is another classic illustration of that.

The equality of outcome approach was not sanctioned by the Belfast agreement, so that does not provide justification for it. It is not what the Equality Commission is charged to achieve, nor is it what is meant by human rights instruments when the commission talks of equality. In those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case with judicial appointments and no additional legislation is required.

In the Minister's winding-up speech on Second Reading, one statement particularly caught my attention. He asserted:

''The criminal justice review, which the Bill builds on, is about modernising the system of appointments in line with the changing needs of society.''—[Official Report, 10 March 2004; Vol. 418, c. 1616.]

I suggest that those words encapsulate a fundamental difference of opinion between the signatories of the amendment and the Government. The Minister argues

that the judicial system must be modernised to keep it in line with the ''changing needs of society'', but what does he mean by that? What objective criteria or mechanisms are there for determining the changing needs of society? How are the alleged changes to be qualified and quantified, and by whom? Any attempt to do that is an exercise in subjective judgment. Moreover, even if we could agree about the changing needs of society, they are by definition transient and an unreliable basis for making judicial appointments.

I take the view that, in reality, the qualities required for appointment to judicial office are timeless; they should be unaffected by transient social changes.

The merit only grounds for judicial appointment should not be debased in pursuit of the idol of political correctness. It is deeply worrying that the Belfast agreement's institutionalised sectarianism might be extended to judicial appointments, albeit through the back door.

John Spellar (Labour, Warley)

For a considerable period in the history of this country, all judges were male. Does the hon. Gentleman think that changes in society should not be reflected in the judiciary?

Andrew Hunter (Independent Conservative, Basingstoke)

Changes in society are reflected, as all institutions evolve over time. My objection is to the imposition of change through legislation. No further legislation is needed because of the balance that already exists in the Northern Ireland judiciary. Of course, as society changes over time, all institutions will reflect that. My quarrel is with legislation imposing a requirement for change.

Having addressed that point, I shall make a final observation to the Minister. Although I do not expect it to happen, it is imperative that the Government reconsider and reflect on the provisions contained in lines 24 to 38 of clause 3. We certainly support a system of transparent, open and fair judicial appointment that is free from political motivation and politicisation, but I do not believe that such objectives can be achieved unless those lines are withdrawn from the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I want to concentrate on amendments Nos. 12, 56 and 13, but before doing so, it is perhaps worth passing comment on the points made by the hon. Member for Basingstoke (Mr. Hunter), some of which are extremely valid. We have embarked in Northern Ireland on the process of institutionalising equality in order to achieve a non-sectarian society. That is undoubtedly difficult to achieve in practice and may have undesirable side effects. We need consider only one example. The pool of talent from which the judiciary can be recruited is not, and cannot be, reflective of society, any more than doctors or any other group can be.

As is the usual tendency with Northern Ireland legislation—indeed with all legislation—we do not want to grapple with the issue, which is the creation of a judiciary with no sectarian bias by upbringing or inclination. It ought to be possible to appoint people to discharge judges' functions properly, irrespective of their sectarian background. That is the aim, but as

usual the legislation fudges it in what can only be described as politically correct terminology. We are likely to continue to do that. I reluctantly accept that there has been a lot of pressure behind this amendment to spell out what should be the ultimate state of the judiciary. The clause has the saving grace of the words

''made solely on the basis of merit'',

which go some way to drawing the sting from what is otherwise a very unsatisfactory proposal. However, that is not to say that clause 3 cannot be improved.

Andrew Robathan (Conservative, Blaby)

Before my hon. Friend continues, is it not the case, whether one likes it or not, that because of this Government's policies, the two largest parties are now Sinn Fein, which does not accept the authority of this Parliament and whose members do not take their place in it, and the DUP—among whose members I have many friends—which is considered to be on the more extreme wing of Unionism? In order to reflect society, will the majority of members of the judiciary have to be supporters of the DUP or Sinn Fein? Is that the logical consequence?

Dominic Grieve (Conservative, Beaconsfield)

As the wording is illogical, I do not think that that will be the logical consequence, thank goodness. The consequence will be that a group of people sitting in a room making appointments will look at a person's background and say, ''Is he Catholic or Protestant? Will we end up with a judiciary that appears to be largely Protestant or largely Catholic?'' That will influence their decision on who is appointed next. If the saving provision, which contains the words

''solely on the basis of merit'',

is properly applied, it should ensure that thoroughly competent judges are appointed.

On the other hand, it will also mean that at times an extremely competent person, who should be appointed, is not appointed when he might have expected to be, and that someone who is about as competent, or at least over the threshold of competence, is preferred to him because at the time it looks better on the balance sheet of Protestant and Catholic judges. It will also have a contributory effect in that someone who is neither Protestant nor Catholic will be appointed on the basis that it adds an extra dimension and suggests that the system is working well. That is the reality of the proposition.

Nick Palmer (Labour, Broxtowe)

As the hon. Gentleman says, the issue reaches beyond Northern Ireland. We also discussed whether women felt represented by a largely male Parliament. In the world that the hon. Gentleman would like to see, would appointments be made only on the basis of competence? Is he is opposed in principle to people recognising people like themselves in the judiciary?

Dominic Grieve (Conservative, Beaconsfield)

My position is clear, which will be apparent when we debate the Constitutional Reform Bill, should it reach this House in its present form. Appointments to the judiciary should be made solely on the basis of merit. However, it is desirable in any society to ensure that all those who have merit can obtain advancement, which means that women, Catholics, people of different sexual orientation—

Andrew Robathan (Conservative, Blaby)

Socialists?

Dominic Grieve (Conservative, Beaconsfield)

Indeed, and people with different political views; they should all be appointed as long as they are prepared to subordinate their views to their practice as a judge. Of course, if one notices that a group within the judiciary comes from a very narrow base, it is proper to consider why that situation has come about; it may be for one of a number of reasons. However, I would not depart from the centrality of the issue of merit, because as soon as we start to tinker with it to obtain another outcome, there are likely to be undesirable results.

Tony Clarke (Labour, Northampton South)

Given his defence of the status quo, will the hon. Gentleman tell me why he believes that the majority of the judiciary to date come from one faith?

Dominic Grieve (Conservative, Beaconsfield)

We must be a bit careful here. I do not have the statistics at my fingertips, but I said at this morning's sitting—the right hon. Member for Upper Bann nodded in agreement—that the High Court of Northern Ireland had a majority of Roman Catholic judges. That is a matter of delight, and irrelevance, to me, because it should not influence or be relevant to the discharge of their functions.

David Trimble (UUP, Upper Bann)

I apologise for interrupting the hon. Gentleman's flow, but he made that comment earlier, interpreting my nod in a way that was not intended. I am not fully au fait with the position with regard to the community background of the Northern Ireland judiciary. My understanding is that of the four judges in the Court of Appeal and above—the three Lord Justices and the Lord Chief Justice—three are from a Catholic background. I do not know the position with regard to puisne judges. I am afraid that the hon. Gentleman interpreted my nod as indicating that the majority of High Court judges had a Catholic background, but it is the majority of those superior to High Court judges. I have no idea about the position among puisne judges, and I caution people against making assumptions.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the right hon. Gentleman for correcting me, as I had misinterpreted him. I have not yet had to carry out a study into the religious affiliation of judges in Northern Ireland, so what he says may be correct.

We know that one reason for the imbalance is historical. That is not a reason for not addressing it, but we should consider the state of the judiciary in England and Wales. It was said earlier that there was an insufficiency of women judges, and there are certainly far fewer female judges than male, but we have only to look at the statistics on entrants to the Bar to see that a continuing shift towards more women judges is likely simply because the pool of entrants has changed so dramatically compared with, for instance, when I started my career as a barrister.

The same applies to ethnic minorities in England. Currently, about 18 per cent. of entrants to the Bar are from an ethnic minority, which is considerably higher than the percentage in the population at large, and we are likely to see change come about when those people become eligible for judicial appointment. That all

shows that evolutionary change can take place without statutory manipulation.

John Spellar (Labour, Warley)

The hon. Gentleman has come to the nub of the point. As we are seeing a change in the pool from which appointments are made, do we not expect that change to be reflected in those appointments? We would be surprised if the appointments were not reflective, so it is legitimate to build in a duty for them to be so. That is why we use the term ''reflective'' rather than providing for a representative quota. We are not tying the number to a mathematical formula, but looking at trends and how they will be reflected. By encoding that, we are trying to ensure that a process that could and should happen actually does happen.

Dominic Grieve (Conservative, Beaconsfield)

The Minister makes a valid point. However, it could equally be argued that if the facts are as the Minister has stated—and I agree with them—there is no need to encode anything and that the change will happen of itself because the proper frameworks have been set up through the Judicial Appointments Commission. This is undoubtedly an important issue, and I want to do justice to the contribution made by the hon. Member for Basingstoke. However, I do not want to get bogged down, so I shall turn to my amendments.

I will not seek today to get rid of the whole clause, but I want the Minister to focus on our amendments. They concern what constitutes a programme of action. If the programme of action is to be along the lines that the Minister has identified, it will not be one in which a group of people sit round a table and ask how many members of each religious group are present in the judiciary and how they can ensure that in six months they have made the necessary adjustments. The programme must also aim to ensure that people apply.

We tabled amendment No. 12 to insert the word ''continuous'' to make it clear that the programme of action is a long-term project rather than a short-term fix. The anxiety has always been that the provision would lead to short-term fixes to produce the numerical adjustments that might appear desirable. I should be interested in the Minister's comments on that. I think that the word ''continuous'' adds something to the clause and might go some way to confound the suspicions of those who think that the provision will simply lead to a rigging, whereby talent and merit come second and political correctness comes first.

Amendment No. 13 concerns submitting an annual report to the Lord Chancellor about the programme of action. Again I hope that the Minister will accept our proposal, as it is desirable that the House should be kept informed of what is going on. First, it would enable us to applaud progress. Secondly, it would enable us to consider whether there were any problems with what is not an uncontroversial scheme. I hope that the Government will look favourably on the amendment.

Eddie McGrady (Social Democratic and Labour Party, South Down)

The amendment appears to be based on two presumptions. The first is that the question of equality is somehow in

the same category as an equal outcome. As has been mentioned, equality of opportunity is addressed in the Good Friday or Belfast agreement. The hon. Member for Basingstoke seemed to suggest that securing appointments by a process that is reflective of the community excludes meritocracy, but the two are not mutually exclusive in this context. It is possible to have a reasonably practical reflection of the community while achieving the objective of meritocracy.

The amendment does not assist the proposed duty of the commission to secure a judiciary that is

''so far as is reasonably practicable to do so . . . reflective of the community in Northern Ireland''.

Many of our debates this morning did not take account of that important phrase ''reasonably practicable''. One can achieve only what one can achieve. The meritocracy principle has always to be applied to the end product. Surely it is appropriate that the programme of action for appointments to judicial offices, for instance, should, as far as practicable, be reflective of the community. That does not mean that the end product will be exactly reflective of the community; that will happen only as far as is practicable. That is overridden by the final phrase in subsection (8), which is that the appointments must be made

''solely on the basis of merit''.

The commission has to have available for consideration

''a range of persons reflective of the community of Northern Ireland''.

The onus is on it to make suggestions of persons who are reflective of the community in a practicable way. I see no real reason why those principles should not be applied in everyday life; that is done in many other quarters. Why is it so offensive to many people that it should be done in the judiciary and the administration of justice?

The hon. Member for Basingstoke made one or two other points that seemed totally irrelevant to our debate. He suggested that the amendments appease the republican movement. If they did appease, I would probably be the most vociferous in opposing them, because my community has suffered more than anyone else from the republican movement and those in my party have suffered more than people in any other from the republican movement. I have been in my home for days on end under siege by pickets from Sinn Fein and the republican movement, and my wife and family have also been subjected to those sieges. There have also been threats against my life from other paramilitaries, so I am not in the business of appeasing extremism in any form, be it republican or Unionist.

I am in the business of trying to move our society forward from the isolation and division that it has suffered. We must melt the icy chill that, rightly or wrongly, pertains in certain sectors because the entire community has not been able to be involved in all aspects of life, including the judiciary and the criminal process. We must enable the entire community to be involved in those things. For that reason, I argue strongly that it is proper for these measures to be in the Bill.

We have the safeguards of the override provision relating to meritocracy and the fact that what is to be done on reflectivity must be done with reasonable practicality, so the outcome will not necessarily be reflective of the community. This point has been a source of many arguments, not only in this debate, but in earlier ones, as we could have an outcome that is not reflective of the community but which is the best reasonably practicable result of the process.

For those reasons, I oppose the amendments. I do not think that they have been proposed on a justifiable basis. I am referring to the outcome that would allegedly be achieved if the amendments were agreed to. I go back to the status quo of clause 3 as proposed, which I support.

David Trimble (UUP, Upper Bann)

I wish to make a number of points. First, I agree with the hon. Gentleman in that I do not think that the proposals are intended to be a concession to republicans. They may, however, be a consequence of other concessions to republicans. To put it crudely, the background to the legislation—the hon. Gentleman may not agree—is that the SDLP was so concerned about the electoral consequences of the other concessions that the Government were granting to republicans that it urged the Government to do some things at its behest, so that it could try to persuade the nationalist community that it was just as effective at achieving changes. That is why we have these measures, although they are not terribly well advised and some are downright harmful.

There is another comment to make on the background. Reference has been made to judicial appointments, and I wish to place some comments about that on the record. When the Northern Ireland judiciary was formed in the 1920s, there were only five senior appointments. There was one Lord Justice as well as one Lord Chief Justice, two lords justices and two puisne judges. One of the latter five was a Catholic. The first Lord Chief Justice appointed in Northern Ireland was from a Catholic background. From then until the late 1960s, at least one of the five judicial appointments was always a person from a Catholic background. That judiciary was reflective, to use the Minister's term, of the community.

I can remember only one occasion in my time when it was suggested that there was anything unfair about appointments. If my memory is correct, in the mid-1960s Lord Fitt, then the hon. Member for Belfast, West, suggested that some malign influence from Stormont was holding back the appointment of Ambrose McGonigal as a High Court judge. Why someone in Stormont would want to hold back such a distinguished former member of the Special Air Service I do not know, but, irrespective of the merits of that suggestion, Ambrose was appointed to the High Court bench in about 1968 or 1969. I say that to make the point that it would be unfair of Government Members to think, because of comments that have been made, that there was some problem with appointments in Northern Ireland.

I must make the distinction between appointments to the High Court and above and to county courts. During the last 30 years, there was significant difficulty in persuading Catholics to take appointments as

county court judges. County court judges, because of their involvement in criminal proceedings, bore as much responsibility, according to terrorist circles, as High Court judges without having the same status or remuneration. Regrettably, county court judges of a Catholic background were murdered during that 30-year period. As a result, the difficulty of making appointments led to an imbalance. Those historic points help to show how unnecessary some aspects of the legislation are.

I shall now deal with the legislation. The Government are committed to human rights, and anyone familiar with human rights law knows that there is a huge difference between the basic non-discrimination requirement and any question of affirmative action. There is a clear line to be drawn: if we want to be consistent with human rights legislation, appointments should be made on merit and on an individual basis.

It is permissible to have programmes to encourage people to apply—affirmative access in that sense. The reference in subsection (10)(b) to the need

''to secure that a range of persons reflective of the community . . . is available for consideration''

is a perfectly legitimate form of affirmative action and it does not conflict with basic principles. However, if we go beyond that form of affirmative action—measures designed to assist and encourage people to apply and make themselves available for appointment—towards a system that implies that there must be a quota or equality of outcome, we are crossing the line and behaving unlawfully and improperly. The danger of the provisions is that, having set the standard of equality of opportunity, there will be so much emphasis on affirmative action that people tend to think, ''If we don't achieve equality of outcome, we will be in trouble.'' In that way the process becomes biased and corrupted.

The Government ought to be particularly careful and sensitive to ensure that they stay on the right side of the line. Subsection (10)(b) stays on the right side of the line, but subsection (10)(a) is getting dangerous. It refers to a programme of action

''designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community''.

There is a danger that the merit principle could be overborne by people feeling that they have to secure a particular outcome.

The words that the Minister used in an intervention compound the danger. In response to the hon. Member for Beaconsfield, he said that the Government are imposing a duty that the judiciary should be reflective. That is not my understanding of the legislation. He said that in this Committee and there is a serious danger that that phrase, which is wrong, could be used as an interpretation of the legislation. I beg him to be more careful about the language he uses. There is no duty that the judiciary should be reflective. If there were, that would undoubtedly be wrong. Indeed, the Government may

have to seek another derogation from the European convention on human rights.

Although I see some merit in affirmative action programmes, and subsection (10)(b) might be acceptable, subsection (10)(a) is dangerous—I should be happier if it were removed. The whole concept is misconceived: it returns to the question of the definition of ''reflective''. We are dealing with judicial appointments at various levels. From whom can such appointments be made? They can be made, obviously, only from people with the relevant education, expertise and experience, so inevitably they are drawn from a limited pool. Reference has been made to appointing members of the DUP. I have no objection to that, although the best qualified member of the DUP has just declared himself a candidate for the European Parliament, so that might be a problem. There is a limited pool from which to appoint people, which even the programme of action in the Bill will not broaden—or if it does, it will take decades.

Encouraging more people into university education leading to legal qualifications, rather than media studies or some such, is probably good in itself, but then encouraging them to go into a particular branch of the legal profession would take a long time to have an impact—or is it intended to be a programme of action directed at existing qualified people to encourage them to apply? The most effective way to encourage people to apply for judicial appointments is to increase the salaries and the perks. That is always the simplest and best way of doing it: if there are not enough people from a particular background within the legal profession, the job should be made more rewarding and more remunerative. People are held back from applying because the rewards of staying in practice are greater than those of the bench. If that is what the scheme refers to, it is a simple matter, but if it is intended to encourage people to go to university to study law, it is really quite silly.

This is similar to the provision to which I referred earlier about making the commission reflective of society as a whole: there are huge impracticalities involved, as well as dangers. I should prefer the scope of the provision to be narrower. I am sorry that the hon. Member for Basingstoke and I are the only people who wish to narrow it; I fear that the uncharacteristic political correctness of the Conservative Members present has held them back. Will the Minister reconsider these matters, and in particular the language used in the legislation, some aspects of which are ill-advised?

John Spellar (Labour, Warley)

It might be helpful to consider the reverse picture. We are talking about securing a judiciary that is reflective of the community, but would anyone want to get up and argue in favour of an unreflective judiciary? If it is a legitimate and proper aspiration to have a judiciary, and other bodies, that are, as far as practicable, reflective of the community, it is sensible to consider how that can best be achieved. That is why the commission should consider a programme of action designed to achieve it.

Dominic Grieve (Conservative, Beaconsfield)

I rather disagree, because the Minister is asking a nonsensical question. It is important to have a judiciary that commands public respect and is accepted as discharging its functions impartially and well. Those should be the only criteria. The Government intend, through the legislation, to try to ensure that that happens by providing reassurance to sections of the community that feel alienated. That is the issue, otherwise the choice of words, which the Minister emphasised, is wrong.

John Spellar (Labour, Warley)

I must then part company with the hon. Gentleman. He seems to be arguing that it is irrelevant whether the judiciary or any other body is unreflective.

My noble Friend Lord Filkin argued in the House of Lords in September that there were three good reasons for such bodies to be reflective. He said:

''First, if one does not manage to attract more people as candidates to be selected only on merit, one is at risk of wasting talent.''

We would all be concerned about that. He continued:

''Secondly, there is straightforward human fairness. If one does not treat seriously people who have ability and talent, they are deprived of opportunity.

Thirdly, confidence is a factor.''—[Official Report, House of Lords, 8 September 2003; Vol. 652, c. 134.]

I would argue that the third point is consequential on the other two—it goes to the heart of the point made by the hon. Gentleman about public confidence. If there is a belief that we are not being fair, or that we are wasting talent, that may lead to a decline in public confidence. That is why the clause is drafted as it is: it fully highlights the need for selection on merit, but also identifies the need, for the reasons that I have outlined, to seek to ensure that the judiciary is, in this instance, reflective of the community. That is desirable, and we therefore have to examine how to achieve it. That is why we talk about a programme of action rather than a prescribed outcome. We are talking about an input rather than a prescribed output.

It is reasonable to suppose that that would include investigating possible equal opportunity issues, and examining how to stimulate interest from a broader range of applicants suitable for judicial office. We believe that by stimulating such interest, it should be possible to achieve a more reflective judiciary without compromising the merit principle.

Dominic Grieve (Conservative, Beaconsfield)

I do not want to make the Minister's time more difficult, but the issue centres on what ''reflective of the community'' means. A Protestant judge of the High Court is not likely to be very reflective of life on a north Belfast Protestant housing estate, but it is likely that he will—or may—command at least some measure of respect for being a person who will discharge his functions properly. That is the difficulty with such choices of words, which are then elevated into mantras, because any detailed analysis shows that they do not really mean what the Minister is trying to say that they mean.

John Spellar (Labour, Warley)

I thought that I was quite capable of making myself clear on that matter, as I did in an earlier debate on the membership of the commission. I talked about being reflective in terms of community

background, gender, age, ethnicity and disability, and also reflective of the part of Northern Ireland with which the appointees consider themselves to be closely associated. I said that on age, for example, there would be an inherent difficulty, because of the question of advancement through the system and the building up of experience. That is where the practicality test comes into play.

I know that we must make progress, but I repeat that if we turned the concept round, we would need to examine the implications of saying that we were quite happy with an unreflective judiciary.

Amendments Nos. 12 and 56 would require the Judicial Appointments Commission to engage in a programme of continuous action rather than simply a programme of action. Although achieving a reflective judiciary will be a continuous process, and will build on past experience, I am not sure that the word ''continuous'' adds to what the Bill asks the commission to do. In response to a very similar amendment tabled in another place, the Government tabled an amendment to ensure that the commission will ''at all times'' engage in a programme of action. We therefore responded to that concern at an earlier juncture.

Turning to amendment No. 13, I quite agree that it is important that the Judicial Appointments Commission should report on the progress of the programme of action. Hon. Members will no doubt be reassured that there already exists an express statutory requirement for the commission to report annually on how it has exercised its functions during the preceding financial year. I am happy to assure hon. Members that such reports will include information on the commission's programme of action. Each report is required to be submitted to the Lord Chancellor and laid before each House of Parliament. Accordingly, I ask hon. Members not to press their amendments.

Andrew Hunter (Independent Conservative, Basingstoke)

I imagine that it was predictable that amendment No. 24 would give rise to a recitation of firmly held positions. That does not, of course, detract from the sincerity of the views held. I should like to turn briefly to the comments of the hon. Member for South Down, for whom I have more respect and regard than he sometimes appears to credit. I wish he would convey to us the realisation that no single political party or group of politicians in Northern Ireland has a monopoly of concern for healing historical wounds and building a sound, healthy society.

My academic debate with him focuses on my belief that equality of opportunity for judicial appointments already exists. The danger of the line that the Government are following is converting that equality of opportunity into equality of outcome, with an entirely different outcome from what they would like. The Minister talks of the importance of creating public confidence. My fear is that the affirmative action that the Bill promotes will achieve exactly the opposite and undermine, not promote, confidence in the judiciary.

The debate has been quite thorough. I do not suppose that many of us are entirely happy with how it has gone. Although I will not insist on the amendment,

I should point out to the Minister that it addresses issues to which we may wish to return on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Appointment of Lord Chief Justice

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 14, in

clause 4, page 3, line 5, at end insert

'and—

(c) consult the Lord Chancellor.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 15, in

clause 4, page 3, line 7, after 'consult', insert 'the Lord Chancellor and'.

No. 16, in

clause 4, page 3, line 11, after 'advice', insert

'as to the substance of their recommendation and'.

No. 17, in

clause 4, page 3, line 21, at end insert—

'(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.

Dominic Grieve (Conservative, Beaconsfield)

This is an important clause. It provides that there is system of consultation and recommendation for senior judicial appointments involving the First Minister and Deputy First Minister. That form of consultation is laid down in a statutory form. Our amendments require consultation with the Lord Chancellor at which time the First and Deputy First Minister might make any such recommendation. There must be good grounds for involving the Lord Chancellor in that process.

Looking back to our debate this morning I can see that if he ever disappears and is replaced by the Secretary of State for Constitutional Affairs, the argument might be different, but for the moment there is a Lord Chancellor. He is the head of the judiciary, and that also applies to Northern Ireland, where he has a role. In those circumstances, it strikes me as rather odd that he is excluded from the process as laid down in the clause. Indeed, I cannot but think that one reason why he was excluded is that when the Bill was originally drafted, the Lord Chancellor did not feature, so his alter ego and eventual replacement was named instead. As we still have a Lord Chancellor, he should be consulted, and I will be interested to hear the Minister's response on why he was either removed from the process or never included in the first place.

On the role of the Judicial Appointments Commission, I confess that I find subsection (5) odd and hard to follow. It is worth reading out:

''The Northern Ireland Judicial Appointments Commission shall give to the First Minister and deputy First Minister advice as to the procedure which, whenever they are required by the Prime Minister

to make any recommendation under subsection (3)(a), they should adopt for formulating that recommendation.''

What does that mean? If the advice is only procedural, will the commission be allowed to say only that the First Minister and the Deputy First Minister should sit down in a room one afternoon, decide whom they want and then send the recommendation off to the Prime Minister? If the advice is on anything more, it will concern substance rather than just procedure.

I would be mystified if there was no advisory role for the commission on the substance of who should be appointed. As one of the Bill's purposes is to remove the taint of political or sectarian bias, why should the commission not suggest to the First Minister and the Deputy First Minister the two or three people whom they should consider? After all, the commission will have the expertise, which the First Minister and Deputy First Minister are unlikely to have. That is not because of any specific failings, but unless they happen to be lawyers or are intimate with the legal profession, they may have great difficulty in working out the best people to appoint. Furthermore, one would have thought that if they were doing their job properly, they would informally consult the Judicial Appointments Commission anyway.

For that reason, the Minister should explain the role that the Judicial Appointments Commission will have under subsection (5). In doing that, he should bear it in mind that the commission will be well placed to provide the advice that the First Minister and Deputy First Minister will need in proposing appointments.

Finally, and perhaps most importantly, there is the question of what is being forwarded to the Prime Minister. The procedure envisages that one name will go to the Prime Minister for approval. I presume that the Prime Minister may reject the name and compel the First Minister and Deputy First Minister to reconsider the appointment. Is that sensible?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am intrigued by the hon. Gentleman's comment that one name will go forward. My reading of new subsection (3)(a) is that it does not necessarily envisage a single name. According to it, the Prime Minister shall

''require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment in such form as the Prime Minister may specify''.

If the Prime Minister specified that he wanted two names, he would get two names.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may be right, but equally the procedure could result in only one name going forward.

To pick up on the hon. Gentleman's important point, another oddity that creeps into the system is that the Prime Minister is given the power to make the specification. That raises an interesting question: what are the First Minister and Deputy First Minister actually doing? Either they are being given an important role in the procedure, which is what I expected that the Government wanted, or they are not. Under the new subsection, the specification could be in such terms that only one name already known to the Prime Minister could result from the process, but I do

not think that the parliamentary draftsmen intended that.

In Northern Ireland legislation, drafting is often opaque: I remember the first time I considered the Bill that became the Public Processions (Northern Ireland) Act 1998, which referred to the playing of ''musical and other instruments''; when I inquired what an ''other instrument'' in a band was, nobody seemed to know, so it was deleted. I am always wary of the opacity that creeps in, and of course the Good Friday agreement is one of the most opaque documents known to man. It is probably totally deliberate here, but it is better to be more specific. If the reality is that the Prime Minister will always ask for two names, surely we should say that two names should go forward. If not, why have this funny bit in paragraph (a), to which the hon. Gentleman draws attention? The purpose of being in Committee is not to take dogmatic standpoints but to probe the Government and find out what is going on, so can the Minister enlighten us? It would be much more sensible if two names were prescribed: it is a commonly accepted practice in our constitution. Archbishops of Canterbury are appointed on the recommendation of two names to the Prime Minister, so the practice has been around a long time.

If we end up with one name going to the Prime Minister, the danger is that he may reject the name; the other danger, as highlighted by the hon. Member for Orkney and Shetland, is that the system will be rigged from the outset and the public will say that the First Minister and Deputy First Minister had no discretion in the matter. Neither solution is desirable, so I hope that the Minister will respond positively.

David Trimble (UUP, Upper Bann)

The most significant changes in clause 4 are the proposed changes to section 12(3) of the Judicature (Northern Ireland) Act 1978, as amended by the 2002 Act. The provisions in new subsections (5) and (6) to the 1978 Act are largely the same as those in the 2002 Act, but there is a significant change in new subsection (3) in comparison with section 4 of the 2002 Act. Section 4 refers to the Prime Minister making a recommendation to Her Majesty in these terms:

''The power of the Prime Minister to make recommendations . . . is exercisable only after consultation with

(a) the First Minster, the deputy First Minister; and

(b) the Lord Chief Justice''.

However, the Bill states:

''Before making any recommendations to Her Majesty concerning an appointment . . . the Prime Minister shall

(a) require the First Minister and deputy First Minister, acting jointly, to make a recommendation to him concerning the appointment''.

That is where the change occurs.

The other provisions concern the procedure to be adopted by the First Minister and Deputy First Minister in making an appointment and the taking of advice from the Judicial Appointments Commission on that procedure. Under the 2002 Act, the Prime Minister made the recommendation to Her Majesty, but before doing so, he consulted the First Minister and the Deputy First Minister. That consultation was clearly envisaged as substantial—hence the procedure

set out in section 4(3). Under this Bill, the First Minister and Deputy First Minister will make a recommendation to the Prime Minister on who is to be appointed, which he will then consider. As the hon. Member for Beaconsfield says, presumably that means that the Prime Minister can decide not to recommend that person to Her Majesty for appointment. We have therefore moved from a situation in which the appointment is decided by the Prime Minister after consultation with others to one in which those others suggest a name to the Prime Minister, who has discretion to decide whether to send it to Her Majesty for appointment. That is a significant shift with regard to the appointments of a Lord Chief Justice and Lords Justices of Appeal.

This morning, I made some gloomy comments about the prospect for the restoration of devolution in Northern Ireland. I can refer to myself only as someone who was once First Minister; I cannot even say the once and future First Minister, because the future might be a long way off. However, I would be very uncomfortable with the proposal. It is undesirable for the selection to be made by the First and Deputy First Ministers, subject to a veto by the Prime Minister, but that is essentially what we are talking about.

At present, under the 2002 Act, the selection will be made by the Prime Minister, subject to consultation with the First and Deputy First Ministers, and we are comfortable enough with that. However, for the selection to be made by the First and Deputy First Ministers subject to a veto exercised by the Prime Minister is a huge shift for which no explanation has been given. It is important that it should be explained, especially in the light of all that has been said about excluding political influence from appointments and with regard to other appointments made by the Judicial Appointments Commission, which comes in simply to advise the First and Deputy First Ministers on the procedure they are to follow in making a recommendation.

Making a recommendation is making a selection, so if I understand it correctly, the power to select means that with regard to senior appointments, the selection is done by the First and Deputy First Ministers after they have been advised on the procedure by the Judicial Appointments Commission, and it is subject to a veto by the Prime Minister. Is that the case? If so, why the enormous shift from the 2002 Act to a procedure for very senior appointments that is so different with regard to the Judicial Appointments Commission from that for lesser judicial appointments? I should be happy to have the Minister's guidance.

Eddie McGrady (Social Democratic and Labour Party, South Down)

Senior judicial appointments are the subject of a firm commitment by the Government, which is not reflected in the Bill or the amendments. The Government's summary of commitments in respect of new criminal justice legislation, published in March 2003, states:

''In respect of appointments of Lord Chief Justice and the Lords Justices of Appeal, the First Minister and the Deputy First Minister acting jointly will make recommendations to the Prime Minister, who in turn will recommend appointments on that basis.''

That basis is the submissions made by the First and Deputy First Ministers. That undertaking was given to implement recommendation 75 of the criminal justice review so that the Deputy First Minister would have effective control of senior judicial appointments upon devolution of the justice powers, rather than the Prime Minister.

The Bill as drafted merely obliges the Prime Minister to consider the recommendations of the First and Deputy First Ministers; he is not obliged to make those recommendations to the Queen; and it is he rather than the First and Deputy First Ministers who has effective control of the appointments. It further increases the Prime Minister's control, as he is allowed to specify the form of the recommendation to be submitted by the First Minister and the Deputy First Minister. For instance, he can dictate the number of nominations in the review, allowing him to decide from any number on a list of whatever size. The procedure for making recommendations must also be agreed by the First and Deputy First Ministers with the Prime Minister, which again contradicts the undertaking given by the Government in their summary of commitments in March 2003.

The role of the Prime Minister should be confined to acting on the basis of the recommendations of the First and Deputy First Ministers, as agreed by the Government. He should not be able to overrule the recommendations made to him, to dictate the form of the recommendations or to exercise a veto over the procedure to be followed by the First and Deputy First Ministers when making the recommendations.

It should always be remembered that, under the Northern Ireland Act 1998, the office of First and Deputy First Minister is a joint office, and not two distinct offices. I accept that the First and Deputy First Ministers need guidance on making recommendations and should seek the advice of the Judicial Appointments Commission on what procedures to follow. If they depart from the commission's recommendations, they should have to advise publicly why they have done so.

What we have before us, however, is a derogation of the clear written commitments that the Government entered into last year as a consequence of the negotiations at Hillsborough. Therefore, although I will not oppose the clause, I certainly want to make known my reservations about the fact that the Government are not fulfilling a solemn undertaking given in a written document.

John Spellar (Labour, Warley)

I say to my hon. Friend the Member for South Down that the clause gives the First and Deputy First Ministers a central role in the appointment of the Lord Chief Justice and the Lords Justices of Appeal. It is difficult to conceive of the Prime Minister not basing his recommendation to Her Majesty on their recommendation to him. Equally, we do not believe that the review envisaged the Prime Minister as merely a post box. Therefore, I think that we have got the balance right.

Opposition Members asked about the genesis of the provisions. The clause accurately reflects the recommendations of the criminal justice review, which states that

''responsibility for making recommendations to Her Majesty The Queen would lie with the Prime Minister, as now, but on the basis of recommendations from the First Minister and Deputy First Minister.''

The review went on to state that

''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.

We continue to believe that the Judicial Appointments Commission will be best placed to advise the First and Deputy First Ministers on the procedure to adopt for formulating a recommendation to the Prime Minister, while the clause gives the Prime Minister flexibility as to the number of names he might require from the First and Deputy First Ministers. We therefore feel that we are implementing the criminal justice review and that the procedure will be an effective way of dealing with an extremely important appointment.

I shall now deal with the amendments in turn. Amendment No. 14 would require the Prime Minister to consult the Lord Chancellor before making recommendations, and amendment No. 15 would require the First and Deputy First Ministers to consult the Lord Chancellor before making a recommendation to the Prime Minister. It is not necessary for both the Prime Minister and the Lord Chancellor to be involved in this already robust process. The clause will come into effect only upon devolution of justice. After devolution of justice, the Lord Chief Justice, not the Lord Chancellor, will be the head of the judiciary in Northern Ireland. It is therefore not necessary to make statutory provision for consultation with the Lord Chancellor. There is nothing to prevent either the Prime Minister or the First Minister and Deputy First Minister from consulting the Lord Chancellor if they so wish. On that basis, I ask hon. Members not to press amendments Nos. 14 and 15.

Amendment No. 16 would ensure that the Judicial Appointments Commission, as well as advising the First Minister and Deputy First Minister on the procedure to adopt when making senior judicial appointments, would advise on the substance of the recommendations. Recommendation 85 of the criminal justice review states that

''the First Minister and Deputy First Minister should consult with the Judicial Appointments Commission over the procedure to be adopted''.

It did not recommend that the commission should provide advice on the substance of recommendations to the Prime Minister. That would give the commission a role in individual appointments to senior judicial offices, which was never intended.

David Trimble (UUP, Upper Bann)

Would the Judicial Appointments Commission have any role in the appointment of High Court judges? Such appointments would be of an individual nature.

John Spellar (Labour, Warley)

The review was clear that the commission's direct involvement in appointments should cease at the level of High Court judges. We

recognise that there is a difference with regard to the two appointments in question, not least because of the small number of people involved.

David Trimble (UUP, Upper Bann)

The Minister is bringing in a commission with the objective—I doubt that it will be achieved—of ensuring that there is no political influence in appointments up to the level of High Court judge. Then it stops and more senior appointments are to be explicitly political.

John Spellar (Labour, Warley)

The 2002 Act also envisages those arrangements, as does the review. It therefore ensures that the procedures for senior judicial appointments are based on a recommendation from the First Minister and the Deputy First Minister to the Prime Minister. That is clearly the position that is outlined in legislation and also in the review. That is why we are following it through.

David Trimble (UUP, Upper Bann)

The point of my earlier intervention was to ask the Minister not whether he was following the instructions that he had received, but whether he was content with a situation in which the objective—again, I do not think that it will be achieved in practice—is to exclude political considerations from minor appointments up to High Court level, while most senior appointments are to be made by an explicitly political process. Is he content with that?

John Spellar (Labour, Warley)

We have such appointments in many cases, including that of the Archbishop of Canterbury. We therefore think that such procedure is the right way of handling the issue. That is the basis of the work that we have undertaken. It has been agreed by the House in previous legislation, pretty exhaustively covered by the review and crawled over by many of those who have debated it. We think that that is the appropriate way of handling the issue, and that is why we commend the clause to the Committee and ask hon. Members not to press their amendments.

Dominic Grieve (Conservative, Beaconsfield)

This has been an illuminating debate. I do not have the time to follow Northern Ireland affairs as closely as I would like, and I was not party to the Committee stage of the 2002 Act. I appreciate the existence of links between the two measures, but some of the subtle nuances between them have not always reached me. I was therefore interested to hear the contributions of the right hon. Member for Upper Bann and the hon. Member for South Down about the background to the proposal before us. The latter described the agreement that he understood existed over the role of the First Minister and his deputy in the appointment of the senior judiciary. It appears that he has been misled and that the Government are in fact implementing a markedly different proposal, although I accept from what the Minister said that it tallies fairly closely with what the review suggested.

My earlier comment that there was something opaque about the provision was spot on. On the one hand, the Government have given assurances about the increased role of the First Minister and his deputy, but on the other, the detailed drafting has included mechanisms to neutralise the measure's impact, possibly because of anxieties about whether it could be implemented in the unfortunately continuing environment of tension in Northern Ireland. That

explains the bizarre wording of new subsection (3)(a), which was rightly highlighted by the hon. Member for Orkney and Shetland.

I am mindful of the Minister's difficulties and the comment of the right hon. Member for Upper Bann that it might have been better to leave the process as it was, with the Prime Minister continuing to take the decision.

John Spellar (Labour, Warley)

The legislation already passed by Parliament envisages a considerable role for the First Minister and Deputy First Minister. It is right to point out that there have been some changes to the procedure, but the crucial and significant involvement already exists. The principle has been established, so the hon. Gentleman should not follow the right hon. Member for Upper Bann down the path of not wanting political figures to be involved in the appointments.

Dominic Grieve (Conservative, Beaconsfield)

I disagree. There is political involvement in the appointments process, as there is in all judicial appointments processes. I do not want to be diverted too much, but I point out the great irony in the fact that although the Constitutional Reform Bill talks about the separation of powers at the United Kingdom, England and Wales levels, there is actually no such thing. Indeed, such separation is unachievable because such decisions have to be political, although preferably taken on non-political grounds. That is why even the Constitutional Reform Bill includes a provision ensuring that the Prime Minister and Secretary of State for Constitutional Affairs—or Lord Chancellor, as the post is now—will ultimately have to take certain decisions in the appointment of our higher judiciary. I do not dispute that fact, but I am irritated by the suggestion that a new world is opened up by following the Constitutional Reform Bill road. It is not; there is inevitably still a degree of political involvement.

The new system under the 2002 Act envisaged that the Prime Minister had to consult the First Minister and his deputy. I accept that that was a major departure from previous practice, but it is different from asking the First Minister and his deputy to advise the Prime Minister and give him a recommendation. That is the significant shift in this Bill. However, whether it was done at the last minute or not, the Government have had cold feet about it and have introduced a mechanism by which the Prime Minister still exercises substantial control over the process.

I do not know whether that is desirable. It may be inevitable, although I may question why we are going down such a road at all, especially if it ultimately ends up with a fudge. However, if there are anxieties about the ability of the First Minister and his deputy to come up with an acceptable recommendation, it would be much better to call a spade a spade and say that they have to come up with two names. That proposal was debated in the Lords, where it was suggested that three names should be put forward.

Of all the amendments that we have tabled, amendment No. 17 is the most important, and I intend to press it to a Division. It would be much better to have two names going from the First Minister

and his deputy to the Prime Minister. If we agreed to the amendment, it would then be perfectly possible to reword new subsection (3)(a) so that the opaque part of it was removed. I apologise to the hon. Member for South Down for not taking up that point earlier. I share his disquiet about the fact that new paragraph (a) has apparently given on one hand and passed on a responsibility, but is so worded that it allows the Prime Minister to fix the entire procedure. That is the recommendation that I make to the Minister.

For the moment, I wish to press amendment No. 17 to a vote, but I am sympathetic to what was said by the hon. Member for South Down about new paragraph (a). One would need to return to the assurances that he understood were being given. I think that we have ended up with a sleight of hand by which the appearance is given of responsibility in a devolved Administration, but the reality is otherwise.

David Trimble (UUP, Upper Bann)

To ensure that there is no misunderstanding, the hon. Gentleman is referring to assurances that may have been given to the hon. Member for South Down. Indeed, the latter made reference to an agreement. Let us be clear about that. The arrangements to which the hon. Member for South Down refers are called the joint declaration. This particular aspect of it was not subject to the agreement of any Unionist, nor was any Unionist consulted on the matter.

Dominic Grieve (Conservative, Beaconsfield)

I did fully appreciate that that was the reality. I was quite sure that the right hon. Gentleman would have told me if he had been party to that particular discussion. I inferred that the hon. Member for South Down was left with such an impression as a result of the discussions. All I can say is that his impression, if it is correct—I have no reason to doubt his good faith in saying that that was the impression he got—is at variance with the strict wording of the clause. The right hon. Member for Upper Bann may say that it would be much better to leave things as they are, and I have some sympathy with that.

If the Government are determined to go down this road, it would make much more logical sense for two names to go forward with a clarification that beyond that point the Prime Minister does not have a power to rig the process, rather than leave a situation where there is a danger of people saying that they were duped into understanding that the process would be carried out in a particular way. I cannot see how that is helpful to any aspect of achieving devolved government or the peace process in Northern Ireland. That is my personal view, but I do not think that the hon. Member for South Down disagrees with me, and I am not sure whether the right hon. Member for Upper Bann would disagree with me.

I understand the right hon. Gentleman's point that he would prefer the existing system to remain. We made it clear in the Lords that we would prefer that, too. As I am trying to help the Government, I hope that the Minister will accept my ideas within the constructive framework in which they have been

introduced. To help him along the way, I would like to put amendment No. 17 to the vote, but first I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 17, in

clause 4, page 3, line 21, at end insert—

'(7) Any recommendation made to the Prime Minister under this section shall contain no fewer than 2 names.'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 11.

New clause 1 - Removal or suspension from

John Spellar (Labour, Warley)

I beg to move, That the clause be read a Second time.

The 2002 Act set up a system for removing listed judicial office holders from office. The power to remove a judge is exercisable by the First and Deputy First Ministers acting jointly. A judge may be removed only if a tribunal convened under section 8 of the 2002 Act recommends that he be removed on the grounds of misbehaviour or inability to perform the functions of the office. That system will come into effect after the devolution of justice. By ''listed judicial office'', we mean anyone up to and including a High Court judge, although the system will apply only to High Court judges appointed after the devolution of justice.

The new clause removes the requirement for the Lord Chief Justice's agreement to the removal or suspension of a person from a listed judicial office. The Lord Chief Justice will, however, be consulted on the removal. The removal of a person from a listed judicial office will occur only on the recommendation of an independent tribunal. Such a tribunal will be chaired by a Lord of Appeal in Ordinary, the Lord Chief Justice or a Lord Justice of Appeal and will have another senior judicial member as well as a lay person. The Lord Chief Justice will also determine the procedure of the removal tribunals and select their judicial members.

Given the robust and careful arrangements that the 2002 Act already provides in respect of judicial removals, there is no need for the Lord Chief Justice to have a veto. Indeed, it is difficult to think of any circumstances in which the Lord Chief Justice would not agree with the recommendation of an independent and distinguished tribunal that a person be removed from judicial office. Accordingly, there is no reason why he should have the power that the 2002 Act provides.

David Trimble (UUP, Upper Bann)

If the Government believe that there is no need for the Lord Chief Justice to have a veto, why did they enact a veto in 2002? The Minister has a duty to tell us why that was done and why the Government have changed their mind. If the new clause had been introduced by Opposition Members, the Minister would tell us that the principle was settled in 2002 and we should not be reconsidering it, so I must put the same point to him. I do so in a genuine spirit of inquiry to find out why the Government gave the Lord Chief Justice a veto in 2002 and why they are withdrawing it.

John Spellar (Labour, Warley)

We have reflected on that, and I am advancing some reasons why our further consideration has led to the belief that I have outlined. We have extensive mechanisms in place to deal with the highly unusual circumstance of a judge being removed. We then move to the other almost inconceivable situation of a Lord Chief Justice vetoing the decision of a tribunal that he played a considerable role in setting up—indeed, a committee of which he or one of the very senior judges has been part. We anticipate that the circumstances in which such tribunals are needed will seldom arise. A judge may be removed only if a tribunal has reported recommending that he be removed on the grounds of misbehaviour or inability to perform the functions of the office.

Dominic Grieve (Conservative, Beaconsfield)

Can the Minister help me? I was not in Committee when the 2002 Act went through Parliament. Why was the veto mechanism requiring the agreement of the Lord Chief Justice included?

John Spellar (Labour, Warley)

I would have to refer to colleagues who dealt with that to find out why it was important. I have described the considerations that we examined and the almost inconceivable set of circumstances that would require such a veto.

David Trimble (UUP, Upper Bann)

In keeping the debate going, I hope that assistance might come to the Minister to enable him to explain the thinking behind the 2002 Act. I am in the same position as the hon. Member for Beaconsfield, not having been involved with that Act, so this is all news to me too. In view of the origins of this legislation, I want to put a specific and important question to the Minister: were any representations made to the Government on this change, and if so by whom? Where has this come from?

John Spellar (Labour, Warley)

I will have to get back to the right hon. Gentleman as to any particular reasons, cases or considerations that may have given rise to this, but I have outlined the arguments that led us to believe that the 2002 Act is unnecessary in that regard, and therefore the reason for tabling the new clause.

Desmond Swayne (Conservative, New Forest West)

The Minister's principal argument is that it is inconceivable that the veto would be exercised. If that is genuinely inconceivable, is it worth tabling the new clause?

John Spellar (Labour, Warley)

I do not think that it is necessarily good practice to retain redundant legislation or legislation that does not relate to real circumstances. I have described at length the procedures involved in the unlikely circumstance of there being a need to consider the removal of a judge from the bench, and therefore the already considerable involvement of the Lord Chief Justice in that process. We must then consider the question whether the Lord Chief Justice needs such a power in that process—the senior judiciary, including the Lord Chief Justice himself, is already deeply involved—and whether one person who is part of the process should have a veto over the rest of it.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry to press the Minister again, but the Government must know their business. It must be possible for him to be briefed as to why the 2002 Act gave that veto to the Lord Chief Justice. I find it extraordinary that in a debate that he knows was contentious in another place—he has had to re-table the new clause—he is unable to tell the Committee why the decision to put the veto in the legislation was made, so that we can understand whether the Government's arguments for removing it are valid. Frankly, it would be useful to know.

John Spellar (Labour, Warley)

I have given a considerable number of arguments as to why the procedure as outlined in the 2002 Act is not required. The reason is the considerable involvement of the senior judiciary, including the Lord Chief Justice, throughout the procedure for the possible removal of a senior member of the bench. We considered that power and concluded that it is unnecessary. It was not part of the review and we felt therefore that it was not adding to the process. The new clause probably more properly reflects due process.

David Trimble (UUP, Upper Bann)

I wanted to give the Minister another opportunity to answer the last question that I put to him: has any representation been made to the Government about the matter? What is its genesis? Were any party or other Government involved in making suggestions to the Government about it?

I ask those questions simply out of the normal paranoia that we all have, a paranoia that is reinforced by one's knowledge of the origin of the legislation. I want the Minister to return to that matter. I would not ask the question if it were not for that paranoia, and if it were not for the unexplained matter of why the provision was put in and is now to be taken out.

If one were receiving the provisions de novo, one would note that the detail of the operation of the procedures for removal is not contained in the criminal justice review. The criminal justice review has only a few paragraphs in very general terms about the matter. The detailed procedure has been built by the Government from a few small germs in the criminal justice review. If the Government were proposing to introduce the procedure as they would now like it to

be, I would not feel moved to object to it. One's concern is simply why the provision was introduced and then removed. In the context in which we are operating, and knowing what has happened elsewhere, one suspects that something nasty happened somewhere in the woodshed on the way. I want transparency and openness from the Government about the matter.

John Spellar (Labour, Warley)

We think that the provision that we are reinstating more closely reflects the recommendations of the criminal justice review, and does not impinge on the independence of the judiciary. We believe that there is a strong judicial input, and that therefore the clause stands on its own merits. We constantly receive advice from all sorts of quarters on different measures, and consider whether there is merit in those views. We believe that the proposed process is more substantial.

David Trimble (UUP, Upper Bann)

The Minister says that he constantly receives advice from all sorts of quarters. Did he receive advice on that matter? Why is he being so coy?

John Spellar (Labour, Warley)

No, I have not had advice on that matter, but I am saying that the clause stands on its own merits.

Dominic Grieve (Conservative, Beaconsfield)

I hope that the Minister will not take it personally, but that is one of the most unconvincing explanations and performances that I have heard in Committee for a long time. The clause is important, and was controversial during its passage through the House. He now seeks to change the mechanism for removal under the 2002 Act, and we are left completely in the dark as to why it has been thought necessary to make that change. The impression that he conveys is that he is either embarrassed or unable to tell the Committee about the original decision to introduce the clause and the current attempt to reinstate it.

I can see persuasive arguments to counter what the Minister has said, which I shall outline. The mechanism that we are setting up for disciplinary issues concerning the judiciary in Northern Ireland is a novelty—or was a novelty before the 2002 Act. It is well known that the system in England and Wales requires a resolution of both Houses of Parliament to remove members of the senior judiciary, which has historically taken place on the recommendation of the Lord Chancellor. The last time that that occurred was sometime in the early 19th century. However, I suspect that there may have been a threat to do so about 10 years ago, but that the person concerned left because it was suggested to him that such a resolution might follow if he did not consider his position.

Whatever the situation, one has to think carefully about the implications of moving away from that model. The Minister and I, and the rest of the Committee, will share the view that judicial independence and freedom from political pressure must be maintained. The interesting thing about the mechanism that has been proposed is that it does not involve the legislature. The Northern Ireland Assembly has no role whatever in the process. The link between the legislature and the judiciary in

Northern Ireland is treated for these purposes as non-existent. That may reflect the Government's assessment of the limitations of the Northern Ireland Assembly as a representative body or of the difficulties that the Assembly will face in view of the way in which it was set up. I do not know—the Minister has not condescended to tell us—but I can see that there could be difficulties. I do not want to add to his difficulties by suggesting that the Northern Ireland Assembly has to be the body that makes the decision.

The result of that is that the decision has been cast on the First Minister and his Deputy—that wonderful hybrid institution where two people with diametrically opposite political philosophies, in the current likelihood, have to operate together for the good of the citizens of Northern Ireland. In the 2002 Act, the Government clearly considered that that mechanism was not sufficient. They put in the extra mechanism of providing for a veto for the Lord Chief Justice.

The other feature of the 2002 Act is that the Lord Chief Justice in Northern Ireland becomes an important figure. He becomes the head of the judiciary once the devolved administration is set up. It seems to me—although the entire model strikes me, as a rather old-fashioned constitutionalist, as fairly bizarre—that if one is trying to provide checks and balances to ensure that there is not political pressure on the judiciary and that wrong decisions are not made by members of the Executive, the mechanism of providing for a veto by the Lord Chief Justice is sensible. The Lord Chief Justice is not God, because if we read further on in the 2002 Act a mechanism is available to remove the Lord Chief Justice from office if necessary. That mechanism extends very far and wide to involve the entire judicial establishment of the United Kingdom, or certainly of England and Wales, in that process. That is no bad thing. It is not as if the Lord Chief Justice is not answerable if he should act capriciously.

In such circumstances, the Lord Chief Justice's final say strikes me as eminently sensible. The Minister says that it is not necessary and that that situation could never happen. I do not know about that. I would certainly think that it is most unlikely that it will ever happen, and I hope that it is most unlikely that a tribunal ever has to be convened at all. However, just because it is unlikely, that does not mean that we should not provide a checking mechanism in a system that is untried and untested. As we know, there has been enormous difficulty in operating the Northern Ireland constitution. Otherwise, the right hon. Member for Upper Bann would have had a different career as First Minister. That is the reality of it.

I am afraid that I disagree with the Minister. In the absence of some cogent argument to persuade me otherwise, which has been lacking, I will resist the new clause, because I think that the arguments advanced in another place remain valid and that this is a sensible safety device to which I can see absolutely no downside.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I agree in large measure with what the hon. Gentleman has said. The matter was first dealt with in the House of Lords, and the Government are seeking to reinstate the position. Frankly, I regret

that they feel that to be necessary. I do not see the need. There is no good reason for departing from the procedures followed on this side of the Irish sea, and the Government have not yet evinced one. I presume that the matter will be pressed to a vote, and I will support the hon. Member for Beaconsfield and his colleagues.

John Spellar (Labour, Warley)

I reiterate that the key issue is whether any individual, however eminent and distinguished, should be able to exercise a veto in this regard, particularly when the Lord Chief Justice or other senior members of the judiciary have been involved in the process at an earlier stage and have therefore had a considerable influence on this important issue. The real question is then whether they should also have a veto within the system. On reflection, we decided that they should not. Accordingly, I seek to reinstate the clause that was removed in another place.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 10, Noes 6.

Clause 5 - Duty of Director of

Andrew Hunter (Independent Conservative, Basingstoke)

I beg to move amendment No. 25, in

clause 5, page 3, line 30, after 'shall', insert 'within his discretion'.

This is the second of three amendments that I tabled on behalf of the DUP. Again, it is a quest for the reason for a change, although in this instance it returns, without apology, to the 2002 Act. As the explanatory notes to the Bill make clear, section 34 of that Act amends section 55 of the Police (Northern Ireland) Act 1998, and places on the Director of Public Prosecutions a duty to refer matters to the police ombudsman. The Committee will be aware that recommendation 21 of the criminal justice review stated that the DPP should have a duty to refer to the ombudsman. The clause therefore makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertakings that the Government made in the Hillsborough joint declaration, which the explanatory notes obligingly confirm and emphasise.

It is highly questionable whether an attempt to achieve a political deal is the right basis for sound legislation. The primary purpose of the clause is therefore self-evident. It is also rather worrying, as it

re-enacts the provision in section 34 of the 2002 Act, which was designed to operate after devolved government was up and running in the Province. We have already debated that theme in another context today, but it is disturbing to see that provisions that were intended, under the review, to be enforced only after devolved government was in place, are now to be enforced before. It stands to reason that the DPP should be able to exercise his or her judgment on the referral of matters to the police ombudsman. The previous provision for discretion was sensible and practical and, with this amendment, I seek its restoration.

The DPP exercises discretion in comparable matters, such as whether to prosecute. What is the intrinsic difference in this matter? Why should not the DPP exercise discretion? It is hard to think of a legitimate reason. Assessing the strength of a case and the likelihood of obtaining a conviction is the essence of the DPP's job. Why is that freedom of action being denied? The independent DPP should have discretion to decide whether he has sufficient evidence to bring a prosecution. If he has, the prosecution should go ahead, thus avoiding the further delays that are inevitably created by imposing on him a duty to report the incident to the ombudsman. The Government have yet to explain convincingly why the ombudsman should have a role in the first place. The matter should be determined by the DPP and should result in criminal prosecution, internal disciplinary processes, or no action at all.

On Second Reading in another place, Viscount Brookeborough saw clause 5, which was then clause 6, as another instance of the Government

''eternally tweaking the law ahead of the planned timescale in order to appease''—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1105.]

John Spellar (Labour, Warley)

The hon. Gentleman asked why the ombudsman should have a role in the first place, but he will recognise that the amended Police (Northern Ireland) Act 1998 provides that the DPP, along with the Policing Board, the Chief Constable and the Secretary of State may refer ''any matter'' to the police ombudsman. The ombudsman already has a role, and I am surprised that he is concerned about that.

Andrew Hunter (Independent Conservative, Basingstoke)

I am aware that the 1998 Act was amended by the 2002 Act. I am concerned that the ombudsman has a role in what I believe to be a matter for the DPP alone. It is unnecessary to bring in the additional dimension of the ombudsman's activities, because the matter could be dealt with by the DPP, whose primary job is to assess whether there is any evidence, and whether the case is strong enough to proceed.

The amendment relates to the duty that was imposed in the 2002 Act, which is repeated in the Bill. On that basis, I repeat the argument that the DPP should have the supreme role. To reduce it to simplicity, he should have the discretionary powers to refer to the ombudsman. On that, I rest the case.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I do not necessarily agree with everything that the hon. Gentleman said, but he is

largely right that this is something in respect of which the DPP ought to have discretion. I do not particularly like the form of words in the amendment—instead of ''shall'' it should state ''may'', which would have achieved the same end. However, inasmuch as the DPP is a professional exerciser of discretion, there may be circumstances in which a matter is de minimis—for example, when it is not in anyone's interests for it to be referred in the way envisaged. He ought to have the power not to refer it. That is not in the measure as things stand. Accordingly, there is merit in the hon. Gentleman's argument.

John Spellar (Labour, Warley)

Why does the hon. Gentleman believe that the clause as drafted does not provide what he wants?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Bill states:

''The Director shall refer to the Ombudsman any matter which''.

To my mind, that does not leave him any scope not to refer a matter. Can the Minister see any scope for discretion?

John Spellar (Labour, Warley)

Paragraph (a) uses the words ''appears to the Director''. How does the hon. Gentleman interpret that?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

If it appears to the director that the police officer has committed, or may have committed, a criminal offence or has done something that will encompass disciplinary proceedings, he is obliged to refer the matter to the ombudsman. The point about having discretion is that circumstances may appear to the DPP to indicate that a police officer has committed an offence or done something that will lead to disciplinary proceedings, but it still may not be something that he thinks appropriate to refer to the ombudsman. Surely in such circumstances, which would probably be rare, the DPP ought to have the power not to refer a matter.

David Trimble (UUP, Upper Bann)

I rise to support the amendment and to agree with what has been said about it. The Minister's intervention was interesting because he queried whether the phrase

''which appears to the Director''

introduced any element of discretion. I am not sure that it does, because to whom else would it appear? This is a duty being placed on the director, so it can operate only in respect of something that ''appears'' to him.

The clause continues that the director shall refer any matter which appears to him ''to indicate'' that an officer ''may have'' committed a criminal offence. That sets the bar very low indeed. A low standard is being set and there will be a huge number of referrals. The director is not required to be satisfied that an offence has been committed, or to have reasonable grounds for believing that an offence has been committed. It is sufficient if it appears to him that it may have been committed. To set the standard so low without giving the director discretion over whether to refer is an alarming development.

It is interesting that the Minister referred to the phrase

''which appears to the Director'',

which drew a lot of comment on Second Reading. Some hon. Members were concerned that it contained a discretion, and they did not want any discretion at all. I sometimes think that we are creating a crazy legal system in Northern Ireland, and one of the craziest parts, in all senses of that word, is the operations, role and remit of the police ombudsman's office. The provisions will give a huge power to the police ombudsman's office. The director will be placed under a duty to refer every case where there is any indication that an offence may have been committed. The standard is remarkably low. Persons will be subjected, as we know from experience, to oppressive proceedings.

Anyone who is concerned about maintaining an effective and efficient police service would recoil in horror at the provision. It would be best to give the director a discretion. That proposal could be reinforced with some later amendments, although I shall not discuss those now. I merely argue now for a discretion to be given to the director. Otherwise, a huge number of cases will be referred in which there are no real grounds for investigation. That is not a wise move.

Dominic Grieve (Conservative, Beaconsfield)

I shall in due course speak at greater length on clause stand part, but I completely sympathise with what the hon. Member for Basingstoke is trying to achieve. I understand the clause—that is not the problem—but I am bound to say that it troubles me. It is not the job of the Director of Public Prosecutions to cross-reference to anybody else in respect of the decisions that he must make on whether to initiate public prosecutions. The matter is as simple as that.

Ombudsmen are there for another, important purpose. I do not disagree that the Northern Ireland police ombudsman has an important role in reassuring the public that the police always act properly. However, I do not understand the reason for the clause. I suspect that this specific clause is needed because the Government have realised that without it the DPP might well say that passing to third parties material relating to the process that he must undertake of deciding whether to prosecute is none of his business. That is exactly what the rule should be. It is not the business of the DPP to tip off Government or quasi-autonomous ombudsmen about material that comes before him. It is important both that that should be the case and that he should not be contaminated with administrative roles that are separate from his role in bringing prosecutions or deciding not to. For that reason alone, I would favour the amendment. In fact, I go much further and think that the entire clause should be deleted.

John Spellar (Labour, Warley)

As the hon. Member for Basingstoke rightly said, the amendment would give the Director of Public Prosecutions a discretion over whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it clear at the outset that the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions. The Government are obviously quite happy to endorse fully the

independence and impartiality of the director, in whom we have every confidence.

The Government believe that the clause accurately meets the recommendation of the criminal justice review, which was that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police be fully investigated. I am sure that no hon. Member would dispute the importance of such a provision. It is worth reminding ourselves of the context in which the review made its recommendation. Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early. The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.

Although the discretion will lie with the ombudsman, the clause allows for the director to exercise some judgment—he is not simply an automaton or postbox. That would not be the effect of the amendment. It is also worth pointing out that the provision does not in any way impinge on the director's role in prosecutions, for which the decision about whether to prosecute lies with him. That is different from matters relevant to the ombudsman, who will deal with suspicion of police wrongdoing.

Accordingly, I ask the hon. Gentleman to withdraw the amendment.

Andrew Hunter (Independent Conservative, Basingstoke)

I acknowledge that the wording of amendment No. 25 may not be the best possible to achieve the desired objective. On that basis alone, I shall ask the Committee's leave to withdraw it. However, I believe that the amendment, imperfectly

though it may have been worded, has drawn attention to fundamental issues to which we are entitled to return on Report.

The Minister seemed to be in two minds, at one point beginning to argue that the discretion already existed in new subsection (4A) before moving to a different ground. I do not believe that the ombudsman should have a role in the offences covered in clause 5, as they should be the responsibility of the Director of Public Prosecutions, and if the ombudsman is to have a role, it should be at the director's discretion.

David Trimble (UUP, Upper Bann)

Towards the end of the Minister's comments, he made a reference to the criminal justice review, and I have been able to turn up what appears to be the relevant passage:

''We recommend that Article 6(3) of the 1972 Order be supplemented with a provision enabling the prosecutor to refer a case to the Police Ombudsman for investigation''.

The word ''enabling'' shows that the provision is a discretion, not a duty. Once again, the Minister has referred to the review but is not acting in accordance with it.

Andrew Hunter (Independent Conservative, Basingstoke)

The right hon. Gentleman makes the point emphatically: the situation is not as the Minister describes.

I rest my case. Although I am unconvinced by the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Vernon Coaker.]

Adjourned accordingly at thirteen minutes to Five o'clock till Thursday 1 April at ten minutes past Nine o'clock.