Orders of the Day — Justice (Northern Ireland) Bill [Lords]

House of Commons, 26 April 2004.

New Clause 4 — Anti-Social Behaviour: Report

Desmond Swayne (Conservative, New Forest West)

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

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss amendment No. 26, in title, line 12, after 'services', insert

'to require the Secretary of State to present to Parliament a report setting out certain legislative proposals relating to criminal justice in Northern Ireland.'.

Desmond Swayne (Conservative, New Forest West)

I am sure that all Members are familiar with the depressing complaints of constituents about, for example, fireworks being thrown, hoax 999 calls, abusive behaviour on our housing estates, vandalism and low-level disorder. Such behaviour is one of the depressing features of our modern age. With respect to my discussions with members of the Police Service of Northern Ireland, they say that they want to augment their armoury, as we have ours, with antisocial behaviour orders, local curfew orders, the power to remove truants to a designated place and specific provisions on racially aggravated crime, which, incidentally, is up some 30 per cent. over the last year—so much so that the Northern Ireland Affairs Committee has decided to launch an inquiry on hate crime.

Those preoccupations of the police force have an echo in questions that have been tabled over the last year by Northern Ireland Members. Equally, they have an echo in the reports of the Northern Ireland press, which can be easily scrutinised on the internet through that wonderful vehicle, Newshound. Over and above the requirements of the mainland for those orders, there is an added dimension in Northern Ireland in that such provisions would remove the excuse—the sickening veneer of respectability—that some fools attach to so-called punishment beatings, as if that grotesque paramilitary vigilantism is somehow performing a socially useful function.

I have reservations about the implementation of antisocial behaviour orders, although there are a number of reasons for having the debate. First, we must give voice to the frustration of some Northern Ireland Members, not least the hon. Member for North Down (Lady Hermon), who serve on Standing Committees of the House and scrutinise in detail legislation to provide for the implementation of those orders here on the mainland, in the knowledge that they are not doing that work for the benefit of their own constituencies, or at least not yet. That has given rise to considerable frustration.

Secondly, there is already a consultation under way. Indeed, I have the Minister's consultation document with me, which requires responses by 1 April. It is a reasonable document in terms of the questions that it sets out. I think, however, that the implementation of antisocial behaviour orders will be controversial for two reasons. The first is our experience of them on the mainland. I am familiar with a number of complaints that they are rather complex and bureaucratic and that, despite being civil orders, they require a standard of proof that could almost apply in a criminal case. They also require lengthy case conferences and the collection of huge amounts of evidence. So, the expectation that implementation of such orders would be a quick and easy process has been dashed.

On average, it takes 13 weeks to secure an order, but six months is not untypical. Detectives can spend more time on an ASBO application than on a serious criminal investigation. A study conducted by NACRO—the National Association for the Care and Resettlement of Offenders—stated that 56 per cent. of ASBOs required more than three hearings. It is therefore understandable that their take-up has been well short of the Government's original estimate of some 5,000 a year. Any legislation will therefore be controversial, as Members seek to avoid such pitfalls in the implementation of those orders in Northern Ireland. That will require considerable scrutiny, for which there will be a desire in the House.

Secondly, implementation will be controversial for another reason: the situation in Northern Ireland differs significantly from that on the mainland. The local government structure is very different, and that seems to be the main thrust of the Minister's consultation document, which explores how the orders will be implemented without the same partners that exist for that purpose on the mainland. Again, that will require considerable scrutiny, for which Members will have an appetite.

I understand that the Government already have statutory powers that would enable them to implement ASBOs and the related regulations by order—by administrative law. That would be a highly inappropriate way of proceeding, given the amount of scrutiny that will be necessary and the opinions that will be a consequence, first, of the experience on the mainland, and secondly, of the difference in the local government structure in Northern Ireland. It would be monstrous to bring such regulations before the House on a take-it-or-leave it, unamendable basis. Clearly, therefore, primary legislation is required. Of course, there are not many opportunities for primary legislation—this Bill was such an opportunity, and the Government have missed it. It therefore seems proper to include a provision such as new clause 4, which requires the Government to report to the House on their deliberations on the progress of the consultation, to ginger up their response and to make sure that they do not miss another such opportunity.

Edward Garnier (Conservative, Harborough)

I do not intend to delay the House for long, but I want to support my hon. Friend's new clause.

My only quibble with my hon. Friend's new clause is the length of time that he is prepared to allow the Government to prepare their report. It seems to me that six months is far too long. This is not a new issue—we discussed it in the House in relation to England and Wales in the previous Parliament, and it seems to me that the Government should be fully familiar with the issues that lie behind my hon. Friend's remarks and his new clause. I know that the Minister of State is now well in tune with the social and political climate of Northern Ireland, and he must be only too well aware of the issues in the Province, which to a large extent replicate those in England and Wales, as my hon. Friend mentioned.

I am only too well aware of the difficulties of low-level misconduct on our streets. I plan to have a conference in my constituency, which I am chairing, on 21 May, to which I am inviting local police leaders, church leaders, school heads, governors and representatives of the relevant local authorities, to discuss once again—it is the second time that I have held such a conference in the past four or five years—low-level misconduct on our streets in a particular area, South Wigston, which is the least well-off part of my constituency.

As the right hon. Member for Upper Bann (Mr. Trimble) kindly mentioned about 12 Queen's Speeches ago, I went to school in Northern Ireland. He once even sent me a copy of the record of my entry to Friends' school, Lisburn. In those days, it was in the constituency of Lord Molyneaux, as he now is. I know from my experience of Northern Ireland at that time, and from subsequent visits, that some urban parts are demographically very similar to South Wigston. If antisocial behaviour orders are relevant to my part of suburban Leicester, they must be hugely relevant to Northern Ireland. I urge the Government to treat the subject seriously, and to get on with it rather than waiting for the six months with which the new clause over-generously provides them. The people of Northern Ireland are as entitled to civilised behaviour on their streets as those in any other part of the United Kingdom.

Let me make a constitutional point, which was touched on by my hon. Friend. The hon. Member for North Down (Lady Hermon) is indeed an assiduous attender of Standing Committees on Bills and statutory instruments. It is also true that it is rather extraordinary that Northern Ireland legislation is always introduced by second-hand means. There are few opportunities for the people of Northern Ireland to see their legislation discussed on the Floor of the House. It is a pity that the Government did not think this up for themselves, and a pity that they did not introduce ASBOs and the other orders mentioned by my hon. Friend at the time of the legislation applying to England and Wales. I am afraid that all too frequently Northern Ireland gets fag-end legislation, which gives the people the impression that they are in a second-class part of the United Kingdom. They are not, and they should not be treated as if they were. In some respects they are given first-class representation in the House, and I think that they are entitled to receive primary legislation far more often.

I congratulate my hon. Friend on his ingenuity in trying to amend the Bill's long title, and on hanging the new clause on amendment No. 26. Such action is overdue. I hope that the equivalent of local authorities in Northern Ireland will not experience the problems of expense and delay that ASBOs incur so frequently here.

David Heath (Liberal Democrat, Somerton and Frome)

I too congratulate the hon. Member for New Forest, West (Mr. Swayne) on his new clause. I agree with much of its intention, as opposed to its detail. It is fair to say that we have our differences with the Government on the details of some of their antisocial behaviour legislation—as has the hon. Gentleman's party, judging by some of our discussions on substantive legislation in the House. In any event, the hon. Gentleman is entirely right to say that what applies on the mainland also has its place in Northern Ireland. The issues are the same in all parts of the United Kingdom.

John Spellar (Labour, Warley)

What is the hon. Gentleman's objection to ASBOs?

David Heath (Liberal Democrat, Somerton and Frome)

The Minister, typically, has immediately elided what I said into a statement that I was against ASBOs. What I said was that I was against some aspects of antisocial behaviour legislation. Some parts I still believe to be unworkable, having seen them theoretically in operation but not actually applied since they were first debated in the House. I hope the Minister will not continue to misrepresent what I said. I think that there is a place for ASBOs, and we have made that view plain here and elsewhere. We see a strong case for applying them in Northern Ireland as well—with the safeguards that we have debated at such length.

We believe other parts of the Government's programme to be entirely redundant and based more on a wish to attract headlines than to deal substantively with the problems, but that is not a matter that we need to discuss today. The crucial issue is whether criminal behaviour in Northern Ireland that is not related to any specific issues associated with the specific problems in Northern Ireland is to be dealt with effectively by the Government. My argument—I share the view of the hon. Member for New Forest, West—is that it should be. I agree with his comment that it must have been very irksome to the hon. Member for North Down (Lady Hermon), who spent many hours in Committee dealing with such matters in the Criminal Justice Act 2003 as it now is, to find that they did not apply to the constituency that she represents so ably.

I had an interesting time in Northern Ireland over Easter with the Royal Marines in Dungannon and along the border. I do not claim that that makes me an expert on the difficulties of policing the Province but I hope that it has given me at least a superficial insight into some of the problems.

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

The hon. Gentleman is right to draw attention to the fact that there is an overlay in terms of antisocial behaviour and the type of behaviour that pertains in some areas of the north of Ireland. Can he say who would implement these orders in certain areas and by what mechanism?

David Heath (Liberal Democrat, Somerton and Frome)

As the hon. Gentleman knows, there is a complicated system within United Kingdom legislation on these matters that involves an interplay between local authorities, the police and other agencies. One of the criticisms levelled by the hon. Member for New Forest, West is that that system is over- complicated. I do not agree. I think that the orders have a specific effect, because, in many ways, they are almost a suspended sentence. I do not agree that we should tinker with the standard of proof required, or the inter-relationship between the agencies, but those agencies should be more ready to use the measures that are on the statute book when the occasion is right. I am glad to note that I have seen them used effectively by my own authority.

I do not want to detain the House. I simply say that there is a need to ensure that authorities in Northern Ireland, particularly the police, have available to them the same tools as those available to authorities on the mainland of Great Britain. We are not discussing matters that are specific to Northern Ireland and therefore one would hope that the Government made quick progress, as has been advocated by many parties in Northern Ireland, at least to implement analogous orders to those in operation on this side of the Irish sea.

Nigel Dodds (DUP, Belfast North)

I join others in congratulating the hon. Member for New Forest, West (Mr. Swayne) on tabling the new clause. I welcome the comments of the hon. and learned Member for Harborough (Mr. Garnier), who said that all too often Northern Ireland legislation is dealt with other than by primary legislation. It is welcome that these matters are being dealt with on the Floor of the House by way of primary legislation.

It is important that the Government get a clear message—they should have got it already in this brief debate, which I will not extend any longer than is absolutely necessary. It is clear that, throughout the community in Northern Ireland, there is much concern and fear about the low-level activity that other hon. Members have referred to, and that is characterised as antisocial behaviour. People in Northern Ireland cannot understand why there are provisions such as antisocial behaviour orders for the rest of the country but they are not yet available in Northern Ireland.

That issue was raised on Second Reading, when a number of hon. Members pointed out that the Bill implemented some of the recommendations of the criminal justice review and contained other tidying-up provisions, as recommended by the Chief Constable and others, and that its passage was an opportunity to introduce antisocial behaviour orders. That is an opportunity that the Government have missed, and we should urge them to do as much as possible, as quickly as possible, to introduce antisocial behaviour legislation in Northern Ireland.

I understand that the Minister has undertaken a process of consultation on such a proposal, and I am sure that he will not have received many objections, or heard people say that it is a bad idea. He will no doubt have heard the remarks of the chairman of the Northern Ireland Housing Executive. When I held the position of Minister for Social Development—a responsibility now held by this Minister—I was urged by the chairman of the Housing Executive to consider introducing antisocial behaviour orders as part of legislation under the housing order. However, we were advised that, as antisocial behaviour is a criminal justice issue, it could not be the subject of such an order and was not a matter for the devolved legislature. Our disappointment that such a provision has not been included in the Bill is therefore all the greater—especially given the scarcity of parliamentary time.

Like others, I urge the Minister and the Government to move quickly on this matter to give the police and the authorities the necessary powers to deal with it. One issue that is constantly brought before me as the Member for Belfast, North—an area that has suffered, and continues to suffer, more than its fair share of antisocial behaviour—is that the police are not only under-resourced in manpower but feel that they do not have the necessary powers to tackle the problem. They are very much in favour of the speedy introduction of antisocial behaviour orders.

The Government should act speedily, and I look forward to hearing what the Minister has to say.

David Trimble (UUP, Upper Bann)

I feel that I should speak, because a number of hon. Members have referred to my hon. Friend the Member for North Down (Lady Hermon) and the points that she has repeatedly made on this issue. The hon. Member for Somerton and Frome (Mr. Heath) referred to the long time spent debating it under the Criminal Justice Act 2003, during which my hon. Friend repeatedly called for the legislation to be extended to Northern Ireland. The hon. Gentleman will also remember that my hon. Friend received assurances from Ministers that Northern Ireland would be included in that legislation. Those assurances were repeated to her and to me by the Home Secretary and the Secretary of State for Northern Ireland, so hon. Members will understand our chagrin when those assurances were not honoured or acted on.

This Minister might preen himself because he is finally taking some action, but his Department has been extremely dilatory—and not only that. I can go further back on the issue—back to 1997, when the then Home Secretary gave me an assurance that the legislation that he was about to introduce on antisocial behaviour would extend to Northern Ireland. Reasons for that not being possible were given—or at least emerged later. The different local government structures have been referred to today. However, the Minister might recall the Adjournment debate on the subject in January, when he said:

"Although there can be no direct read-across, our suggestion is to involve local councils and the Housing Executive in the first instance."—[Official Report, Northern Ireland Grand Committee, 15 January 2004; c. 45.]

That is obvious. It was obvious in 1997, and it did not require any great wisdom to see that that was the appropriate way of proceeding, but no action was taken.

The other excuse offered was the criminal justice review referred to in the Belfast agreement, which commenced in 1998. As published, that review contains no provisions relating to antisocial behaviour, and nor was it ever likely to do so. It was used simply as an excuse for inaction. I hope that the Minister will actually do something about the issue and do it rapidly. When he does, will he bear in mind that he is seven years late? It is a reproach to this Government that they have dragged their feet. They have been very quick on this side of the water because they know how serious the problem is, but they have not bothered with what is an equally serious problem in Northern Ireland.

I congratulate the Opposition on tabling the new clause, which gives us another opportunity to remind the Government of the way in which they have failed the people of Northern Ireland.

John Spellar (Labour, Warley)

The new clause seemed to me somewhat like a Liberal Democrat "Focus" leaflet. We know the idea: find out when the pavements are going to be repaired, put out a leaflet demanding that they be repaired, then put out another one saying, "Thanks to the sterling efforts of your local Liberal Democrat 'Focus' team, the pavements have been repaired."

The Opposition and others will be aware from the wide range of exchanges in the House that I announced the consultation on antisocial behaviour orders, and that I compressed the consultation period in an effort to meet the target of introducing them before the summer. My difficulty in dealing with the issue in the way suggested—by incorporating it into the Bill—is that even the compressed timetable, which finished on 1 April, would have given us considerable problems. We wanted to introduce the measure at a fairly early stage in the Lords, which, as Members know, is where the legislation started.

As the hon. Member for Belfast, North (Mr. Dodds) rightly pointed out, although the submissions were not unanimous, the great majority of them were in favour of our suggestion. In that regard, the response was fairly positive. It is true that we could not introduce a straight read-across from legislation for England and Wales because of the different structure of local government. As I have said several times at the Dispatch Box, I accept that we could have acted more expeditiously, but I can reasonably argue that we have now moved matters along fairly rapidly.

The suggested course of action of the hon. Member for New Forest, West (Mr. Swayne)—bidding for an additional slot in primary legislation—would cause considerable delay compared with dealing with such matters through an Order in Council. The situation on the streets of Northern Ireland demands that early action be taken, so I intend to proceed in the manner described. I hope that we have support for the provision.

Mention was also made of racially aggravated offences. I recently concluded a consultation on a draft Order in Council under the Northern Ireland Act 2000. It will make provision for such matters in Northern Ireland, and I intend, subject to parliamentary procedures and timetables, to have the legislation in place by the summer.

So we do recognise the problem, and we are taking action and moving matters along. In the light of that explanation and reassurance, I hope that the hon. Gentleman will withdraw the motion.

Desmond Swayne (Conservative, New Forest West)

Antisocial behaviour is not crime and it is a mistake to treat it as such. It requires a swift remedy; it cannot await the lengthy proceedings of a conviction. We all abide by certain rules in society, and if I may I shall draw a simple analogy. Those who travel to my constituency along the M27 often encounter an obstruction in the outside lane. We are directed to move our cars into two lanes, so at an early stage we begin to do so and to form an orderly queue—but someone always whizzes past on the outside, jumping the queue to get to the front.

We wait and put up with it, and they continue to whizz past. Then someone immediately behind who is unable to stand it any longer pulls out of the orderly queue and drives past. The driver faces a dilemma: to sit there and abide by the rules, or behave like everyone else and be antisocial. Antisocial behaviour is a cancer; it leads to the complete breakdown of orderly society and causes misery for so many people on estates throughout the country. It is an urgent matter, requiring attention.

I congratulate my hon. and learned Friend the Member for Harborough (Mr. Garnier) on the initiative that he has taken in his constituency. I will reflect on it and perhaps do the same in mine. On reflection, he is right; I have been far too patient in providing in the new clause for a further six-month period. As the right hon. Member for Upper Bann (Mr. Trimble) said, the Government's decision is seven years too late. The Minister may well congratulate himself on introducing the measure swiftly, but it is inappropriate to deal with such complex law through a statutory instrument.

The Bill was the proper vehicle for such a measure: it should have contained provision for antisocial behaviour orders. There is nothing urgent in the Bill—nothing that could not have waited. The only urgent matters are the antisocial behaviour orders and other measures—and they are not in the Bill. The point has been well made. The Minister has missed an opportunity. He could have delayed the passage of the Bill and done the job properly. However, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 2 — Membership Of The Commission

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I beg to move amendment No. 4, in page 2, line 3, leave out from 'Chancellor' to end of line 5.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss the following amendments:

No. 5, in page 2, line 6, leave out 'their' and insert 'his'.

No. 11, in page 2, line 9, at end insert—

'(1A) 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 ability to assess the personal qualities of candidates".

(1B) (1) In Schedule 2 to the 2002 Act in paragraph 11 (Delegation) for 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.'.

No. 13, in page 2, line 9, at end insert—

'(1C) In Schedule 2 to the 2002 Act after paragraph 8 insert—

"8A (1) A Committee for interviewing for appointment as a High Court Judge shall consist of the Lord Chief Justice or a Lord Justice of appeal acting under section 3(4), a lay member and a judicial member.

(2) A Committee for interviewing for appointments at deputy resident magistrate and above shall include one member of the judiciary at the tier to which the appointment is to be made.

(3) A Committee for interviewing for appointments to a tribunal shall include a person with detailed knowledge and experience of the tribunal concerned.'.

No. 25, in page 2, line 18, leave out clause 3.

No. 23, in clause 3, page 2, leave out lines 26 to 40.

No. 9, in schedule 1, page 12 line 5, at beginning insert

'in section 1 of the 2002 Act, leave out "of Justice".'.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Amendments Nos. 4 and 5 stand in the name of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who has had the pleasure of inspecting every detail of Kirkwall airport on a fog-bound morning. I have decided to blame the Government for the weather, which is clearly a conspiracy, because they are so afraid of the amendments that we have tabled.

The Bill establishes a judicial appointments commission for Northern Ireland. It will comprise five judges and a member of the Law Society, plus members of the lay community. Under the criminal justice review, lay members of the commission should be representative of the whole community—for an obvious reason: it is sensible to do so. However, the Bill introduces a requirement that all members of the commission should be "reflective of the community".

My hon. Friend the Member for Orkney and Shetland made several important points in Committee. It is apparent that the review recommended that lay membership of the commission be representative of the community, but it did not recommend that the entire membership should be. The Government proposals go beyond that, making the entire commission representative, which poses a number of theoretical and practical difficulties.

The amendments would restrict the duty to the Lord Chancellor and restrict the ambit to lay members of the commission so that only the Lord Chancellor could appoint such members. The Government have adopted a different position, but I do not understand what they are trying to achieve that they could not have achieved originally, or how, in a practical sense, they can meet their objectives. We have nothing against the principle that the commission should be representative of the community as a whole. Who could dissent from that? However, we are worried about how that will be achieved in practice.

The amendments would change the Bill back to the position favoured by the criminal justice review, so that the need to be representative of the community would apply only to lay members, who would be appointed by the Lord Chancellor. Our point is that, in practice, it would be impossible statistically for the commission to be representative of the whole community. The census figures—I shall not read them out—make that perfectly obvious.

Through their comments and actions, the Government repeatedly give the impression that they believe that the community as a whole consists of two large bodies of people—broadly speaking, loyalist Unionists and republican nationalists.

Is the Minister at long last going to acknowledge what many of us have said a number of times: the Government, to some extent, entrench divisions in the community by talking always about the two communities or the two halves of the community? It would be progress if he at least said that the Government accept that the Northern Ireland community is more diverse than many ministerial comments have implied.

In order to justify their position, the Government must explain several things. How exactly do they perceive the process of judicial appointments? What pressure would be put on the Law Society and on individuals to ensure that they were representative of a cross-section? An individual will come from a particular background, and unless the Government are suggesting a strange hybrid person who has spent some time in each community and in each social and ethnic background, it is clearly preposterous to think that one person can represent a cross-section. If the Government do not intend to enforce that provision for each of the four groups making appointments, the question remains of what process the Minister expects to be used to ensure that each interest group works with the others so that the commission as a whole is representative. It will not be good enough for the Government simply to speak against the amendments without giving specific and clear explanations of how they will resolve those difficulties. We are talking not about draft legislation or mere ideas, but about specific rules that will be made on the basis of what the House decides.

Another question is whether the Minister is saying that the requirement to represent a cross-section applies to disabled people, women, young people and so forth.

I shall be interested to hear what the Minister and other Members have to say. The Minister did not give a plausible explanation on those points in Committee. If he believes that a reflective composition is worth pursuing, he must give us an assurance that the Government have thought through the detail. In the absence of a plausible response, I may have to divide the House.

David Trimble (UUP, Upper Bann)

I support amendment No. 4. It is right, largely for the reasons advanced by the hon. Member for Montgomeryshire (Lembit Öpik). I can reinforce his main point, which was that the criminal justice review recommended that the lay members should be representative of the community, which is understandable since they are there to represent the community. Judicial members, on the other hand, and those appointed to represent the legal professions, are not appointed to represent the community but are there to represent the judiciary and the legal professions. One might in turn hope that those bodies would bear some resemblance to society at large, but that is not the point. The point is that judges are appointed on merit and the legal professions are formed by persons who enter into them having complied with the necessary requirements and training. They are there to represent their bodies.

A fundamental mistake underlies the provisions before us. The original legislation was right and the new legislation in the Bill is wrong. I do not want to speak at great length on this point because we debated it in Committee, where I raised the particular provisions that the amendment would remove. The Bill lays a "duty" on those responsible for making nominations

"to make such arrangements . . . as will, so far as is practicable, secure that the membership of the Commission is reflective".

They are placed under a statutory duty to make arrangements. I asked the Minister in Committee what arrangements would be made, and I was thinking especially of the Law Society and the Bar. Those organisations can each nominate one person, but how can they make that one person reflective of the community as a whole? How can they enter into arrangements with others to achieve that objective? Some possible arrangements would involve unlawful conduct.

We asked the Minister to give an indication of what the arrangements might be. In Committee, I asked:

"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?"

The Minister responded by saying:

"I certainly give the right hon. Gentleman that undertaking."—[Official Report, Standing Committee D, 25 March 2004; c. 32.]

Unless I have missed something, the Minister has not yet given us any indication of what those arrangements might be. I hope that at some stage in this debate the Minister will redeem his promise to me. I do not know whether any sensible or lawful—in the light of anti-discrimination legislation—arrangements can be made, and that is an important point because it means that clause 2 is wholly misconceived. If the hon. Member for Montgomeryshire wishes to press the point to a Division, he will have my support—of course, I act on behalf of my party.

Amendment No. 11, in my name, also addresses the issue of the lay members. Understandably and rightly, the criminal justice review said that the lay members should be reflective of the community as a whole, but it also added some further comments about who the lay members should be. Amendment No. 11 seeks to add to the Bill these words from the criminal justice review:

"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 ability to assess the personal qualities of candidates."

It is important that those, or similar, words are inserted into the Bill; otherwise, it might become the practice that the lay persons can be anyone selected to represent an element of the community. That would be a departure from the intention of the criminal justice review. As the Minister knows, I am concerned that the way in which the commission is constituted will result in bringing a wholly unwarranted political influence to judicial appointments. The objective of the amendment is to try to minimise the addition of political influences on judicial appointments. Without the addition of the words of the criminal justice review, there is a danger that the lay members will become political appointees there simply to represent political viewpoints. If the legislation is left unamended, that is certainly what will happen, and that is why I would like the words of the criminal justice review to be written into it.

Amendment No. 11 would also deal with another serious problem. Great effort is being made to ensure that the commission is representative of the community but, when it comes to how it will operate in practice, we find that, under the schedule to the Justice (Northern Ireland) Act 2002, the commission can delegate its functions to a committee that could consist of only one member of the commission. What is the point of trying to ensure that the commission reflects the community if it can then delegate its functions to a body that has no such requirements or standards?

The only safeguard is that at least one member of the commission must be on the committee. We must remember that we are potentially delegating to the committee the power to make judicial appointments, but no safeguards are provided as to the composition of that committee. The idea of delegating the entire function to the committee and enabling the committee appointed by the commission to make the appointments is, in itself, a mistake. If there is to be a committee that includes people other than those on the commission, we should by all means allow the committee to conduct the process of interviewing and deciding whom it feels are the best persons to be appointed, but it should report back to, and have its conclusions confirmed by, the commission. That would be much better practice.

Amendment No. 13 attempts to provide a structure for the commission's committees. The Minister will no doubt recognise the language in the amendment. It would insert a new paragraph into schedule 2 to the Justice (Northern Ireland) Act 2002, and paragraph 8A(1) quotes word for word what the Minister said to me in Committee. I raised the point about the undesirability of delegating to a committee and having no provision about the committee's composition. He triumphantly told me that everything was agreed and that, with regard to the appointment of a High Court judge, the committee would consist of the Lord Chief Justice, a lay member and a judicial member. That is not a bad arrangement, but we would like to rely on something more than a comment made by the Minister in Committee. If he thinks that that is a desirable structure for a committee considering the appointment of a High Court judge, why does he not include such a provision in the Bill? That is precisely what paragraph 8A(1) would do.

Paragraph 8A(2) is again taken word for word from the criminal justice review, which recommends that, with regard to judicial appointments, a member of the judiciary

"at the tier to which the appointment is to be made"

should be on the Committee. It would be appropriate to have an analogous provision for appointments to the tribunal, and that point is covered in paragraph 8A(3), which states:

"A Committee for interviewing for appointments to a tribunal shall include a person with detailed knowledge and experience of the tribunal concerned."

That is wholly in line with the spirit of the criminal justice review.

In the debates on Second Reading and in Committee, the Minister time and time again pointed out that the objective of the Bill was to implement the criminal justice review. Amendments Nos. 11 and 13 would do precisely that. The challenge for the Minister is whether the words that he uttered in Committee and on the Floor of the House about implementing the committees to be set up by the commission are genuine. If they are, I expect him to accept the amendments and particularly those that would give effect to what he himself has said.

I am reminded of the request that I made at the outset that the Minister redeem the promise that he made to provide us with information about the arrangements that will be made to give effect to the Bill. As presently drafted, its provisions for the appointments by the judiciary and the legal professions are not capable of being implemented in practice. However, I shall wait to see what he has to say.

Andrew Hunter (Independent Conservative, Basingstoke)

Amendments Nos. 11, 13 and 25 embody arguments that the right hon. Member for Upper Bann (Mr. Trimble) made in Committee. I supported him then and I do now. If he has it in mind to press them to a Division, he will have the support of the Democratic Unionist party.

I want to put to the Minister an interesting issue that arises out of amendment No. 11, whose paragraph 8A(1) refers to lay members.

We know, of course, that devolved government in Northern Ireland has been suspended because one of the main political parties, Sinn Fein, remains inexorably linked to the IRA, and the IRA is one of the terrorist organisations that is continuing violence and refusing to decommission. The concept of being "reflective of the community" logically means that the composition of the commission should reflect Sinn Fein. To put it bluntly, that would be an intolerable state of affairs, especially in light of the recent Independent Monitoring Commission report. It is something that no true democrat could allow. I hope that the Minister will clarify whether his current thinking is that "reflective of the community" includes Sinn Fein representation on the judicial appointments commission.

I offer highly qualified support to amendments Nos. 4 and 5, and I shall explain why. As I shall argue in greater detail when I come to amendment No. 23, the reason arises from the fact that my hon. Friends and I reject the concept of being "reflective of the community". However, if that concept is to be part of the Bill and become law, it is essential that amendments Nos. 4 and 5 are accepted. Hon. Members have referred to the composite nature of the judicial appointments commission: five members appointed by the Lord Chief Justice; a barrister nominated by the General Council of the Bar; a solicitor named by the Law Society; and five people who were originally to be appointed by the First Minister and Deputy First Minister, but who are now to be appointed by the Lord Chancellor. The point has been powerfully made about how on earth those disparate bodies are to agree nominations that are "reflective of the community". Amendment No. 4 would put that responsibility solely in the hands of the Lord Chancellor, and it is the common-sense, practical way forward. If we are to have the concept of being "reflective of the community" enshrined in the Bill, the Democratic Unionist party supports, with the reservations that I have explained, amendments Nos. 4 and 5.

The purpose of amendment No. 23 is straightforward and transparent. It addresses what was for many hon. Members, both Unionist and Conservative, a grave concern that we expressed on Second Reading and again in Committee. 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 would be taken into account. We argue that the well-intentioned concept of being "reflective of the community" is fundamentally flawed and impractical. Only the qualifications and qualities of individuals should be considered when judicial appointments are made. There is a compelling argument to be made not only that proposed new subsections (9) and (10) undermine and weaken the requirement of subsection (8) that appointments should be on the basis of merit, but that, in practice, appointments reflective of the community would ultimately be incompatible with appointments based on merit alone. Nothing that the Government said on Second Reading or in Committee, and nothing that we have heard today, calms our fears on that issue.

The Minister argued on Second Reading and in Committee that confidence in the judicial system is imperative. No one disagrees with that, but I do not accept that there are any shortfalls of confidence in Northern Ireland's judiciary worthy of merit, or that there is any need for the provisions contained in new subsections (9) and (10). Indeed, those provisions are more likely to undermine confidence in judicial processes and procedures than to promote it. I ask the Minister a simple question: where is the evidence to support the allegation that Northern Ireland's judicial system and the judges who are an integral part of it are unfair or biased? The truth is that there is no lack of public confidence in the judiciary—quite the reverse. The judiciary of Northern Ireland, appointed as it has been by the Lord Chancellor, has justly earned a superb reputation for its fairness and impartiality, to say nothing of its courage and dedication to the rule of law. Members have been appointed solely on merit without creating any significant or telling imbalance. Public confidence in the judiciary has deservedly been very high indeed.

We know that the concept of being "reflective of the community" has replaced that of being "representative of the community". Perhaps that is a small step in the right direction, but adopting "reflective of the community" is a dangerous move toward the mistaken and utterly fallacious approach of seeking equality of outcome—a 50:50 outcome. Concern about "reflective of the community" is compounded when we recall that the genesis of the Bill lies in the March 2003 Hillsborough declaration—a measure that emerged from wheeling and dealing to re-create the climate that would enable the restoration of devolved government. That is not a sound basis for legislation and it does not command confidence. We should remember also that equality of outcome and approaches designed to secure it were neither sanctioned nor remotely justified by the Belfast agreement. Equality of outcome is not what the Equality Commission is charged to achieve or what is meant when human rights instruments speak of equality. In all those cases, the reference to equality means equality of opportunity and the requirement that individuals are treated fairly. That is already the case in judicial appointments and no additional legislation is needed.

In Committee, I drew attention to the Minister's words in his winding-up speech on Second Reading, when he said:

"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.]

Those words encapsulate a fundamental difference in thinking between the Government and Opposition Members. The Minister argues that the judicial system must be modernised to keep in line with the "changing needs of society". Of course society changes constantly and institutions adapt—they evolve with changing circumstances. Our quarrel is with the imposition of change by legislation when changes should be allowed to happen through evolution.

We feel especially strongly about judicial appointments because we do not fall for the line that the Bill sets out to modernise the appointments system. The Bill politicises appointments. The system of appointments has been dragged into the sphere of politics to serve a political purpose demanded at Hillsborough. We certainly support a system of transparent, open and fair judicial appointments, one that is free from political intervention and politicisation, but we do not believe that that objective can be achieved by new subsections (9) and (10).

The matter is one on which we feel sufficiently strongly to wish to divide the House. None the less, I look forward to hearing what the Minister has to say.

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

I shall try briefly to make a rather broad point and to challenge an assumption that I have heard on at least four occasions so far in the debate—that somehow or another, if one has a political view, be it Unionism or nationalism, a Labour view or a Conservative view, one cannot be reflective of the community in which one lives. We should challenge that.

It was astounding that the entire thesis of the hon. Member for Montgomeryshire (Lembit Öpik) verged on a quasi-political, quasi-religious definition of a community. A community is not a sectarian football match or two sectarian teams. It is much deeper and much more fundamental than that. There are many more strands to it. Let me put it this way: when I sit on these Benches, I hope I am reflective of the community that I serve. I have no doubt that Members who sit on the other Benches hope that they are reflective of the communities that they serve. Even though many people in the community would not see me as representative of their political views, they might very well see me and others as being reflective of the type of standards that one might require in the whole political process.

We should challenge the notion that the matter is to be seen in little boxes: there goes the nationalist representative, and there goes the Unionist representative. How do we make room for the Democratic Unionist party representative, then get the republican representative in and, just to keep everything right, squeeze an Alliance person in at the end? It is not like that. Those attitudes are not reflective of the community in the north of Ireland. With all its problems, the community is much bigger than that and much wider. That is where we should look carefully.

There is a second element that we should consider—the extent to which those whom we charge with the protection and implementation of law are aware of what makes people tick in the community in which they live. I pose that question because there is an ivory tower attitude in some parts of the north of Ireland, whatever the political or religious views of those with that attitude. For far too long that ivory tower attitude was preserved in the legal profession. In that community there was a special place—an ivory tower—that was protected and is still being protected by the legal profession.

I noted the fine speech made by the hon. Member for Basingstoke (Mr. Hunter). I detected the tones of legal hurt in his speech, almost a confirmation that people have at last had the audacity and, in my view, the good sense to start knocking on the walls of the ivory tower and rattling a few of the cages inside it.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I am listening to the hon. Gentleman's comments not just about the ivory tower, but about compartmentalisation, which he does not consider an appropriate way forward. Surely he recognises that his support for the Government's arrangements causes more compartmentalisation by creating an artificial requirement, beyond the lay members, to achieve the kind of outcome that we all want in principle, although it is hard to see how we can achieve it in practice without more stress and more friction.

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

I thank the hon. Gentleman for that point, but I do not agree with it. Returning to my original thesis, the reality is that one can be of a community without representing every political or religious view within it. One can bring an ethos that people who do not share one's political or religious views recognise to the legal profession, politics or anything else. That is why it is right to challenge the notion advanced by the hon. Gentleman and others, and to point out that rattling the legal cages was necessary to create a broader approach. If one examines the history of the legal profession in the north of Ireland, one must admit, perhaps grudgingly, that it was the preserve of a very few, whoever they may have been and whoever chose them.

Nigel Dodds (DUP, Belfast North)

The hon. Gentleman talks about rattling the legal cage. On judicial appointments, can he indicate where the current appointments to the senior bench in Northern Ireland—the Lord Justices of Appeal and the Lord Chief Justice of Northern Ireland—fail to reflect the community?

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

I am not saying that those appointments fail to reflect the community; I am saying that there has been great resistance to the change, and that resistance remains within the profession. The hon. Gentleman entices me to do what I am arguing against—to label people in political or religious terms—and I will not do so. I repeat that one does not have to reflect the political or religious attitudes of all the people within a community in order to represent them.

In this House, we are all elected, but does that mean that all hon. Members reflect the constituencies that elect them? I do not believe so. There is another part of this Parliament, and it bears examination, too—I do not want to stray into a different debate, but I hope that that matter will be resolved soon. The right hon. Member for Upper Bann (Mr. Trimble) is delighted, because that issue is an obvious advantage for him and his party, but the hon. Member for Belfast, North (Mr. Dodds) does not delight in it. Perhaps things will change when appointments do not reflect the community, but deal only with this terrible thing—the danger of the influence of politics in appointments. I leave the matter there.

Finally, there is a pristine honesty about those who consistently tell us that there should be no political input to judicial appointments, within a system where, as in the Republic of Ireland, judicial appointments are made by the political process.

I am as keen as the right hon. Member for Upper Bann or anyone else to ensure that political opportunism does not apply to judicial appointments, but let us at least be honest when we consider the arrangements in the Bill. I could make very strongly some points about appointments outside Northern Ireland. I could refer to the two Governments who, as the hon. Member for Basingstoke alleged, proposed this legislation at Hillsborough. I do not intend to stray into making those points, but I say this: I wish to challenge the notion that one cannot be reflective of the community if one does not share the political views of all the people in it.

In that context, we must reconsider the distinction that has been made between appointments among the legal profession and appointments of lay people. That has a tinge of ivory tower syndrome: it suggests that it is okay to have a certain arrangement for lay people but that we must not, for heaven's sake, have it for the people who have come within the compass of the ivory tower. It should apply to everybody, because the whole thesis of reflectiveness is such that such a distinction cannot be made.

Andrew Hunter (Independent Conservative, Basingstoke)

I confess that the hon. Gentleman's argument has left me completely bewildered. Is he effectively saying that appointment should be by merit alone, so amendment No. 23 should not be supported?

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

I believe that all appointments should be made on the basis of merit that is reflective of the community. I remember—this may be before the hon. Gentleman's time and too far back for many people's memories—when people were appointed to the bench in Northern Ireland who had never been seen in the north of Ireland before: they had been educated and had practised abroad, and all of a sudden they were senior judges in the north of Ireland. That arrangement is not reflective of the community. I thank God that the days are gone when only those within big house Unionism got on to the bench in the north of Ireland, and I should like to think that hon. Members within the Unionist community would support me in that. I notice that the right hon. Member for Upper Bann is getting excited. I shall try to end that situation for him.

I believe that this measure is needed. We should not give a position of privilege to people in the legal profession, who already have the huge privilege of administering the law that Parliament makes for them. That should be privilege enough, without our copper-fastening it for them.

Edward Garnier (Conservative, Harborough)

The hon. Member for Newry and Armagh (Mr. Mallon) had the privilege of serving on the Standing Committee on the Bill that became the Justice (Northern Ireland) Act 2002, and we had the pleasure of listening to many similar speeches from him. He and I disagreed on the need for the judiciary and the judicial appointments commission to be

"representative of the community in Northern Ireland",

as section 3(8) of the 2002 Act states. Although we disagreed about the need to lay that down in statute, I could understand the worries felt by the hon. Gentleman, people like him, people whom he represents, and people whose views he reflects.

I do not happen to believe that justice is capable of being described in the terms that lie behind the 2002 Act and this Bill. However, to use a disgraceful and awful expression, we are where we are. Nonetheless, I am no more convinced of the need for the adjective "reflective" than I was, during the Standing Committee in 2002, of the need for the use of the word "representative". I am provided with some hope, however, when I see the words "of the community" which follow "representative" or "reflective". To me, the concept of community does not include those outside the law or those who wilfully seek to destroy our democratic institutions through terrorism, violence or subversion.

If the Government are honest to us, to the people of Northern Ireland and to those who wish to be appointed to the judicial appointments commission, they will make it clear that they will not seek to reflect or represent on the commission people who come from the terrorist and anti-democratic organisations. They will also make it clear that they will allow nominations to be put forward only from those groups, of whatever tradition, which are wholly signed up to the institutions of a democratic Northern Ireland and a democratic United Kingdom, and which believe that judges and senior judicial officers will do justice irrespective of their origins and the origins of the people over whom they will give judgment.

I know that the Government have great faith in the judiciary of Northern Ireland. The Lord Chancellor invited Lord Hutton, one of Northern Ireland's most distinguished judges, to chair the recent inquiry into the death of Dr. David Kelly, and there are many others like Lord Hutton who have served and continue to serve on the Bench of the Northern Ireland judiciary. When these judges try cases, be they criminal or civil cases, they do not say, "Ah, I am now dealing with a case involving an allegation of breach of contract. I will try it in a Protestant way", or "I will try it in a Roman Catholic way", or "I will try it in a Sinn Fein way", or "I will try it in an Ulster Unionist way". They try each case on the facts, and by applying the facts to the law.

Similarly, I feel sure that, when those judges are dealing with criminal cases, either with a jury or in a Diplock court, they do not treat the defendant in a particular way because he is a Protestant or a Catholic. They say, "The Crown has alleged the following, and I must assess the evidence laid against the defendant in support of the charge." If the defendant is convicted either by the jury or by the judge—after the judge has considered the matters before him to the requisite standard of proof—he will then be sentenced according to law. I know that the law in Northern Ireland is—as it is in England, Wales and Scotland—blind to the origins of the person in front of the sentencing judge, save only in relation to studying the pre-sentence report to ensure that a just decision is made in relation to that individual.

So we do not really need a judiciary—and, still less, a judicial appointments commission—which is reflective or representative of the community in Northern Ireland.

That is because, it seems to me, the matters of the rule of law and how judges behave are over and above, as well as separate from and not prepared to take account of, the community, except in the special circumstances of a pre-sentencing report.

I hope the Government can reassure me and the House that when they push through the amendment to the 2002 Act by way of a clause of the Bill, which we are considering through the prism of the amendment—they will do so, as they have the majority in the House—they will ignore wholly in respect of the term "representative" or "reflective" that part of the Northern Ireland population which is distinguished from the Northern Ireland community and which advocates terror and suborning the civilised and democratic institutions and court system in Northern Ireland.

I want next briefly to discuss the amendment tabled by the right hon. Member for Upper Bann (Mr. Trimble) in relation to the committee, or sub-committee, of the JAC that could appoint a judge. It looks very worrying. Schedule 2(8) of the 2002 Act says:

"The Commission may establish committees."

Schedule 2(3) says:

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

That is fine if people are ordering biscuits or furniture for the commission, but if they are appointing judges they are moving into different territory altogether. Up to a point, that is catered for by paragraph 12 of schedule 2, which 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, 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."

Well, I am not sure that that went far enough to protect the integrity of the judicial appointments system, but this Bill makes me even more concerned and I share the right hon. Gentleman's anxieties.

Everything we do in the House is tinged with politics. My hon. Friend the Member for Basingstoke (Mr. Hunter)—I think he is still my hon. Friend—is a little na-ve in thinking that we can pass legislation untouched by politics, even when we are discussing something as apolitical as the judiciary. He is perfectly right, however, to advance the arguments that he and his colleagues have advanced in his attack on the clause that he seeks to amend, because the Government seek not only to introduce to the judicial appointments commission and the judicial appointments system a less safe system of appointing judges on merit, as the right hon. Member for Upper Bann suggested, but, to go further, to provide for a system for the appointment of judges that could skew that system against selection purely on merit towards selection of judges on some other either directly or quasi-political basis.

That concerns me, because as I said at the outset the appointment of our judges and how they behave should be wholly outside the realms of politics. Even in this jurisdiction, for the moment at least, the Lord Chancellor—although he is a politician to some extent, or at least a party political appointee—has selected judges in England and Wales wholly uninhibited by political consideration.

I say that of the current Lord Chancellor, I was happy to say it of Lord Irvine, the previous Lord Chancellor, and I dare say that it was equally true of their predecessors in Conservative Governments. It seems to me, however, that we should not expect the people of Northern Ireland to have judges of any other quality than the very best, selected for any other reason besides legal and judicial merit. To add into the selection process these extraneous and confusing reasons will lead to trouble.

I hope that the Government can reassure me on the points that I have raised, because matters related to justice are easily written off as boring, or a lawyer's whinge, when they are so important for the system of democracy in both the jurisdictions of Northern Ireland and England and Wales.

Nigel Dodds (DUP, Belfast North)

I find myself in agreement with much of what the hon. and learned Member for Harborough (Mr. Garnier) has said. In particular, I want to emphasise his point in relation to the interpretation of the phrase "reflective of the community", which should not under any circumstances be taken to mean that appointments to the judicial appointments commission—or any other appointments in this area—should be permitted of those who support the use of violence, intimidation, threats and so on, or who are allied to the republican movement. Especially in the light of the IMC report, as pointed out by the hon. Member for Basingstoke (Mr. Hunter), those sorts of interpretations would be simply unacceptable and totally wrong. The same issues arise in the context of ongoing calls for members of Sinn Fein-IRA to be members of the Policing Board, for instance. If that happened, there would be people in control of the accountability of the Chief Constable and senior police officers who, as we have seen in the IMC report, are still wedded to violence and to carrying out activities on the streets of Northern Ireland through criminality and terrorism. That would simply be unacceptable as far as the people of Northern Ireland are concerned.

Another issue that concerns me in relation to the phrase "reflective of the community" is what we have seen as regards appointments to other public bodies and organisations in Northern Ireland that are supposed to be reflective of the community or, to use the slightly stronger term, representative of the community. I refer to bodies such as the Northern Ireland Human Rights Commission, the Parades Commission, the old policing authority and others, which do not in any shape or form represent or even reflect the viewpoint of the majority community in Northern Ireland. The Minister will be well aware of the complaints and criticisms—

Peter Robinson (DUP, Belfast East)

To strengthen my hon. Friend's point, does he agree that it is total hypocrisy to have an organisation known as the Equality Commission that does not have one member who would reflect the view of the largest party in Northern Ireland?

Nigel Dodds (DUP, Belfast North)

I thank my hon. Friend for his intervention. He is absolutely right to point to another organisation, which I have not mentioned. As he says, its title implies that it is aimed at the promotion of the concept of equality, yet it, too, has been widely criticised on the grounds of not representing, or having on it those who would reflect or represent, the majority political viewpoint in Northern Ireland. We must therefore be careful when we address such issues in relation to Northern Ireland.

Judicial appointments should be made on merit alone. As the hon. Member for Basingstoke said in his eloquent contribution, we believe that the Government's proposals would go a long way to undermine the merit principle. We therefore wish to see those elements that would undermine it removed from the Bill today.

I hope that the hon. Member for Newry and Armagh (Mr. Mallon) will feel able to agree with our amendment. It seems to me that the logical outcome of what he said would be his joining us in ensuring that, when it comes to appointments to the judiciary, merit should be the only consideration. Towards the end of his speech he spoke of big house Unionists' being appointed, and of people returning from abroad to be appointed. I should be interested to know who he has in mind; I have no idea who on earth he could mean. I note that he did not take an intervention from the right hon. Member for Upper Bann (Mr. Trimble) on that.

The Northern Ireland judiciary are held in high esteem there. They act in the best interests of the community as a whole, as has been shown time and again during the most difficult and challenging periods in the history of the Province. The House would be well advised to accept the amendments, and not to introduce an element of political interference which I think will only damage the process and the confidence of people in Northern Ireland.

Desmond Swayne (Conservative, New Forest West)

I agree with the amendments. I want to concentrate on amendment No. 25, which raises the question of whether clause 3 is necessary. On Second Reading in the other place, Lord Mayhew—in terms echoed today by my hon. and learned Friend the Member for Harborough (Mr. Garnier)—said:

"In five years as Secretary of State for Northern Ireland and four years before that as the Attorney-General for Northern Ireland, I do not recall any serious lack of public confidence in the judiciary every manifesting itself. I suggest that there was a very good reason for that. Throughout the past 30 years, 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."—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1107.]

What are we trying to fix here?

The key to making the judiciary reflective of the community is encouraging all sections of the community to produce suitably qualified candidates. That is a laudable objective, and if it succeeds it will follow that over a period the judiciary will come to reflect the community that has produced such candidates. That is happening here on the mainland as the judiciary change to reflect the increasing number of female and ethnic-minority entrants to the profession.

This is where we part company with the Government: they would turn a natural expectation into a duty. On 25 March, the Minister said:

"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."—[Official Report, Standing Committee D, 25 March 2004; c. 44.]

I think the Minister is right to expect the appointments to be reflective, but entirely wrong to impose such a duty. Consider that that will inevitably, or at least potentially, compromise the principle of selection on merit alone.

Suppose that, unfortunately, it turns out that the best qualified candidate for a judicial appointment is from that section of the community that is already on balance over-represented in the judiciary, and that those who make the selection, considering the requirement to abide by the provision and their duty to ensure that the judiciary be reflective of the community, go for another candidate—a competent, qualified candidate but not the best candidate. We will then have crossed the threshold from a perfectly legitimate objective to affirmative action. That will have the opposite effect from what is intended in the clause. Rather than building confidence in the judiciary, it will undermine it.

John Spellar (Labour, Warley)

I note the comments of the hon. Member for Belfast, North (Mr. Dodds) about the Equality Commission and hope that, as I have recently invited new applications, he will encourage the widest possible pool of applicants for those positions. We look forward to seeing those.

My hon. Friend the Member for Newry and Armagh (Mr. Mallon) asked us to look at the wider perspective. It is worth while rehearsing the benefits of seeking reflectiveness in public bodies, principal among which is that they tend to reflect the composition of the community around them, which inspires confidence and ensures that good people are not overlooked when recruiting and promoting. Such an approach speaks of fairness and reflects criticism.

It is sometimes said in the advertising world that a good way of assessing an advertisement and whether it is working is to hold up a mirror to it and look at its mirror image. On that principle, we should consider whether we would argue that bodies should be unreflective—a position that would clearly be indefensible. With regard to reflectivity, schedule 2 to the 2002 Act requires the commission to report the following information relating to those who applied and were selected for judicial office: gender, age, ethnic origin, community background, and that part of Northern Ireland with which they regard themselves as most closely associated. To deal with the query raised by a number of hon. Members, political opinion is not included.

I appreciate that some hon. Members think—it was clear from the debate—that the Government are overplaying the importance of reflectiveness. Let me put it this way. Many people in Northern Ireland have been prepared to dismiss the important and good work of public bodies and public authorities with unfair criticisms. That undermines the bodies' authority. That is a problem that the Government can do something to address.

Let us put to one side the positive merits of a reflective judicial appointments commission. Think of the damage done by criticisms of an unreflective commission—however, unfair those criticisms may be. Let us not give anyone cause to reject and undermine the commission's work. The simplest way to do that is by seeking to ensure within the bounds of what is reasonable and practical that the commission is reflective. It does no harm and it does a positive good.

The hon. Member for Montgomeryshire (Lembit Öpik) arrived late as a result of his colleague being held up by fog in Kirkwall and assumed that the Government were responsible. When I was Under-Secretary of State at the MOD and responsible for the Met Office, I carefully claimed credit for good weather at festivals in my constituency. We welcome the hon. Gentleman. He raised the question of the possible arrangements. The Bill is not specific as to what the arrangements may be, but one could envisage that there would have to be meetings or correspondence between those with powers to appoint and to nominate. Almost inevitably, there would need to be some collective consideration of the individuals whom persons were minded to appoint or nominate to see whether that could lead to a reflective commission.

David Trimble (UUP, Upper Bann)

May I go back to what the Minister has just said—that, inevitably, there would have to be some sort of collective consideration. Will he explain how the Law Society and the Bar Council could possibly take part in that collective consideration and how it could override their responsibility individually to make a single appointment?

John Spellar (Labour, Warley)

On the question of those bodies being overriden, on this matter we are talking throughout about aspiration—about trying to ensure a reflective commission. Those bodies might well want to secure that, and would therefore want to consider their nominations, of course on merit, but also on whether they would be able collectively to meet that aspiration. That is a reasonable argument.

David Trimble (UUP, Upper Bann)

The Minister must try to answer the question. He has again used the word "collectively". We are discussing the appointment of the commission. At present, the Lord Chancellor appoints the laypersons, the judicial persons are then appointed, and then the Bar Council appoints one person and the Law Society one. How do those bodies, which are themselves collective, take part in collective decision making with the other bodies—the Lord Chancellor and the judiciary? How does the collective body known as the Law Society do that, especially bearing in mind the fact that the Minister is imposing on it a legal duty to make arrangements? The Minister has an obligation to tell us—indeed, he promised to tell us—what those arrangements might be, but he has not yet done so.

John Spellar (Labour, Warley)

I beg to differ on that. I have indicated—

David Trimble (UUP, Upper Bann)

No, the Minister has not.

John Spellar (Labour, Warley)

Yes, I think I have indicated that we would envisage meetings or correspondence between those with the power to appoint or nominate, and some collective consideration, which means a degree of engagement between those bodies. They will then make their own decisions in the light of those discussions. That is not unreasonable. The right hon. Gentleman might disagree with that, but I believe that it is a perfectly credible way of undertaking that duty.

Nigel Dodds (DUP, Belfast North)

Just to tease the issue out a little further, let us suppose that someone was aggrieved at being overlooked for appointment to the judicial appointments commission. Can the Minister tell us who they would take the case against under this arrangement? Would a solicitor take it against the Law Society and a barrister against the Bar Council, or would the case be taken against the Lord Chancellor? If the arrangement were collective, where would the remedy lie?

John Spellar (Labour, Warley)

I envisage that the individual organisations would make the nomination, but that they would do so in the light of their collective discussion. That is not unprecedented in this world, and maintains the individual organisations' ability to make a decision while allowing them also to consider the impact of their decision on the decisions of others.

David Trimble (UUP, Upper Bann)

I am sorry to intervene on the Minister again, but I remind him that the words in his Bill are, "to make . . . arrangements". An arrangement under the Bill means something more than a telephone call. The Minister hints at some sort of collective approach, but the legislation gives to the General Council of the Bar the power to make an appointment. How can a telephone conversation with the secretary of the Bar Council in any way bind, or have any influence on, what the Bar Council as a whole does? The whole approach is misconceived.

John Spellar (Labour, Warley)

It seems to me that the right hon. Gentleman has put his finger on the point exactly in referring to binding or having influence. Such a call could well influence the decision, and that secretary might even then have to go back to other people to consider how his organisation could best achieve the objective. The arrangement seems to be a perfectly sensible basis, which enables each individual organisation to make nominations, but in a framework in which they consider how their individual decisions might impact collectively. That is a perfectly reasonable way of doing business.

Moving on, I recognise what the right hon. Gentleman is trying to achieve in amendments Nos. 11 and 13, and I acknowledge that he is doing so in a genuine attempt to build confidence in the system.

I am not convinced that those amendments are necessary, however, because the appointment of lay members of the commission will be within the purview of the Commissioner for Public Appointments. It will be part of her responsibility to ensure that appointments are made for the right reasons, and I have no doubt that the qualities that the right hon. Gentleman lists are of exactly the sort that she will expect the commission to look for. So it is not necessary to make that explicit in the Bill, and I shall rely on the wisdom of those responsible for the administration of the process.

Likewise, prescribing how committees and sub-committees of the commission should be composed is not a matter for the Bill. The Justice (Northern Ireland) Act 2002 makes it clear that the commission shall be responsible for the regulation of its own practices and procedures, and I have every confidence that the chairman—the Lord Chief Justice—will oversee its functions with great care. I am not sure that there are compelling reasons to amend the Bill as the right hon. Gentleman suggests. But regarding his specific question on my contribution in Committee, although it is for the commission to decide in each case how it organises its business, the practical arrangements are being worked through with the Lord Chief Justice. However, the Lord Chief Justice has agreed that High Court appointments will be dealt with in the way that I described. I hope that that provides additional reassurance to that offered in Committee.

David Trimble (UUP, Upper Bann)

The Minister's response to my amendment No. 13 was wholly inadequate—as, indeed, was his argument against the earlier amendments—and he has not dealt with my further point about enabling the commission to delegate its entire functions to a committee on which there might be only one or two members of the commission. We are talking about enabling a committee to make an appointment, yet there is no safeguard as to its composition, other than that one commission member be on it. How can the Minister regard that as satisfactory?

John Spellar (Labour, Warley)

Frankly, it is a matter for the members of the commission, which will deal with more than 1,000 judicial appointments, and for its chairman, the Lord Chief Justice. It seems that I have greater confidence in the Lord Chief Justice and his fellow commissioners than do others. The provision provides the right balance to enable the commission, which will consist of highly eminent persons, to organise its business effectively.

Edward Garnier (Conservative, Harborough)

Is the Minister suggesting that there are 1,000 judicial office holders in Northern Ireland?

John Spellar (Labour, Warley)

I am advised that 1,000 appointments are catered for.

I realise that some Members are concerned that securing a reflective judiciary will somehow compromise the principle of appointment on merit, but that is not the case: merit and reflectiveness are not mutually exclusive. The 2002 Act makes it clear that individual appointments must be made solely on the basis of merit, but equally, equal opportunities issues may arise that have implications for the judicial appointment process. In most spheres of work, where merit does not lead to a broadly reflective body, it is reasonable to ask why. Sometimes, there are good historical reasons, some of which the hon. Member for New Forest, West (Mr. Swayne) alluded to, but we would want to know what was preventing the emergence of a reflective body. Barriers, disincentives and other problems that are not obvious might mean that talent is being wasted. All that the provision requires is that the judicial appointments commission analyse and address any such problems, in the expectation that the measures put in place will achieve a broadly reflective judiciary.

Desmond Swayne (Conservative, New Forest West)

Will the Minister deal with the example that I gave? Would the commission be wrong to consider another candidate—a competent and good one—if the best one was from, let us say, a part of the community that was already over-reflected in the judiciary?

John Spellar (Labour, Warley)

It is a question not just of what I say, but of the merit principle's not being compromised. It will be no part of the commission's programme to recommend appointments "mainly" on the basis of merit, or to "have regard" to it; rather, it will recommend appointments solely on the basis of merit. I hope that that provides the reassurance that the hon. Gentleman seeks.

Nigel Dodds (DUP, Belfast North)

The Minister referred to the number of judicial appointments in Northern Ireland as being about 1,000. On Second Reading, it was stated that there were only about 900 such appointments a year in England. That matter was also brought up in respect of the size of the commission, which we argued was too big for Northern Ireland. Will the Minister clarify the point? If there were about 1,000 judicial appointments per year in Northern Ireland, that fact would certainly be relevant to the size of the commission.

John Spellar (Labour, Warley)

The number of appointments incorporates a number of tribunals across the board, which brings it up to about 1,000 appointments in a year. I hope that that clarifies the position. I checked up on it for exactly the same reason as the hon. Gentleman: I had the same concern as him.

I hope that I have dealt with most of the relevant issues. The Bill makes some references to the Lord Chancellor, which will have to be changed in time, but that is a matter for the Constitutional Reform Bill. Other issues arise elsewhere in Northern Ireland legislation, but they are not central to this Bill.

Andrew Hunter (Independent Conservative, Basingstoke)

Do the Government specifically envisage that Sinn Fein would be reflected on the commission? The Minister said earlier that politics was not an issue, but that is hard to understand in such a highly politicised society as Northern Ireland. Will he therefore clarify whether Sinn Fein will be reflected in the commission or not?

John Spellar (Labour, Warley)

I do not know how I could be clearer than I was earlier when I explained that the relevant criteria for those who applied to be selected for judicial office were gender, age, ethnic origin and community background in the context of Northern Ireland. I thought that I had been very clear and explicit in that regard.

I have already said that we might consider tabling an amendment to section 1 of the Justice (Northern Ireland) Act 2002 to extend the duty to uphold judicial independence beyond those responsible for the administration of justice. The right hon. Member for Upper Bann raised that important matter, which deserves proper attention, in Committee. However, it has been decided that the point would be better addressed in the context of the Constitutional Reform Bill, so we look forward to dealing with it then. I therefore ask that hon. Members withdraw the amendments.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

My hon. Friend the Member for Orkney and Shetland has now got out of the fog in Kirkwall and has made it as far as Edinburgh, but I feel more lost in fog than when I first walked into the Chamber. My concern is that the Minister has sought to flannel his way through some questions, particularly those asked by the right hon. Member for Upper Bann (Mr. Trimble) and the hon. Member for Belfast, North (Mr. Dodds), without providing any clear mechanism that would allow us to understand how the mandate in the legislation could be brought to pass. The Minister cannot expect us to take his proposal seriously if he cannot explain the mechanism by which it is to be administered or, indeed, explain who would be held responsible if the commission did not turn out to be as representative as it was supposed to be.

The Lord Chancellor will appoint the lay members, but what process will ensure that his work—together with that of the General Council of the Bar, the Law Society and other judicial bodies—generates a cross-section that is truly representative of the community, as the legislation requires? The Minister cannot simply tell us that it is going to happen or that he hopes various people will make phone calls, have conversations or correspond with each other. He knows as well as I do of the frictions that exist in the north of Ireland that affect these discussions. Simply hoping that when the time comes, those frictions will be put aside—and that the Bar Council, Law Society and others will feel that it is their duty to create a process to fill the vacuum left by the legislation—is not good enough. I understand why the Minister may not want to advance the process. I suspect that it would be very difficult to mandate the organisations into doing so without either appearing draconian or seeming to impose impossible demands on them.

I am grateful to the right hon. Member for Upper Bann for saying that he will support amendment No. 4, if it is pressed to a Division. I am also grateful to the hon. Member for Basingstoke (Mr. Hunter), who is allied to the Democratic Unionist party, for his highly qualified support. I understand the qualifications that the Minister has made, which I shall deal with in a few moments, but he has singularly failed to convince any Members other than his hon. Friends that the proposal adds up.

The hon. Member for Newry and Armagh (Mr. Mallon) made some interesting points. At one stage, I felt that he was arguing in favour of the amendments and against the Bill as it stands.

He spoke about compartmentalisation, but the problem is that the Minister is trying to force compartments to work together, which may well increase rather than reduce the very frictions that I am talking about.

I do not feel it appropriate to talk about the privilege of the legal profession. I am not in the law myself and feel no need to discuss how much privilege that profession has had. I am interested in discussing the practicability of what is proposed, and I differ from the hon. Member for Newry and Armagh in that I do not feel that the Minister's proposals are practicable.

I understand that the hon. Member for Basingstoke intends to divide the House on amendment No. 23. I understand his concerns about reflectivity and representative cross-sections. I have had some personal concerns about positive discrimination: I am vulnerable on that since I have two Estonian parents, which means that the Estonian population of the United Kingdom is over-represented here by a factor of 30. [Interruption.] I can hear someone saying that that is easily remedied, but I believe that that is simple jealousy as we near the Eurovision song contest, which Estonia won recently and in which Britain got "nul points".

I take a different view from the hon. Member for Basingstoke on the question of reflectivity. I do not feel that I can support amendment No. 23 for reasons that we have discussed at some length in the past.

The Minister cannot expect us to go along with the Government's procedures when they have not been thought out. He cannot outline in any sensible way—if he can do so at this late stage, he is free to intervene—how he expects to apportion responsibility for an entirely reflective commission. If he cannot tell us how that will happen, he can hardly expect us to support an extension way beyond what was recommended in the report. To do that without cross-party consultation was somewhat irregular. To go further than recommended by experts who have studied the situation in Northern Ireland and to expect us to support that without having gone through any process with all the parties in Northern Ireland is to expect us to swallow too much. I am not aware that any such procedure has been undertaken; the Minister may correct me if I am wrong, but I do not see him getting up so I think that I must be right. In the absence of a plausible defence from the Government of how the proposals will be implemented, I intend to divide the House on amendment No. 4.

Question put, That the amendment be made:—

The House proceeded to a Division.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

I ask the Serjeant at Arms to investigate the delay in the No Lobby.

Clause 5 — Removal Or Suspension From Listed Judicial Offices

Desmond Swayne (Conservative, New Forest West)

I beg to move amendment No. 1, in page 3, line 25, leave out clause 5.

The amendment would preserve the status quo, which requires the Lord Chief Justice's agreement to be sought and obtained before the sacking or suspension of any judge, as set out in the Justice (Northern Ireland) Act 2002. In the other place, clause 5 proved to be the most controversial clause. It was removed, but it was reinstated in Committee in this House.

The removal of a judge in England and Wales requires a resolution of both Houses of Parliament. Strangely, the Northern Ireland Act 2000 gives no role whatever to the elected Assembly, and places the key decision in the hands of the First Minister and the Deputy First Minister. In order to provide a proper check and safeguard for that novel constitutional model, the 2002 Act requires the Lord Chief Justice's agreement, which is, in effect, a veto over the process. That provision strikes me as eminently sensible, given our paramount concern for the independence of the judiciary. Now, only two years later, the Minister requests the removal of that veto. His request is based on neither a powerful argument that we got it wrong in 2002 nor experience gained from the system's bedding in. In Committee, he simply said that it is, in his view, "inconceivable" that the veto will ever be used, and that we should therefore take it away.

The Minister's request prompts two questions. First, if it is inconceivable that the veto will ever be exercised, why table a new clause in Committee to remove it? In Committee, the Minister responded to that question by stating that he favours tidiness in the law, that the veto is unlikely to be used, that it is redundant and that it should therefore be removed. Secondly, if the veto is inconceivable and wholly redundant, why was it given to the Lord Chief Justice only two years ago in the 2002 Act? The Minister replied that he did not know why because he did not serve on the Standing Committee for the 2002 Act.

The Minister's performance in Committee was so unconvincing that the right hon. Member for Upper Bann (Mr. Trimble) speculated that clause 5 might be based on special pleading:

"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?"

The Minister replied:

"I will have to get back to the right hon. Gentleman."—[Official Report, Standing Committee D, 25 March 2004; c. 61.]

I do not know whether special information was imparted.

David Trimble (UUP, Upper Bann)

The hon. Gentleman is correct. The Minister promised to get back to me, and he treated that promise with the same seriousness that he treated his promise to give us the details of arrangements that we debated in Committee. In other words, he has not kept the promise—at least, not so far—and I would be surprised if he were to say anything more coherent than his previous contributions.

Desmond Swayne (Conservative, New Forest West)

The matter is remarkably suspicious. Their lordships removed this key clause, which the Government think so important that they brought it back and forced it through Standing Committee. There has been complete silence on the rationale for clause 5, which prompts this obvious question: what are the Government trying to hide?

The procedure is novel, and I am prepared to admit that such a situation would be rare—it may never happen, and one hopes that it will not. It is admittedly unlikely that the Lord Chief Justice would seek to veto a decision largely based on the work of a commission set up by him, but we are not clairvoyant and cannot read what may or may not happen to that novel constitutional procedure in future. A veto was given to the Lord Chief Justice in the 2002 Act, and if its sudden removal is not based on an argument or experience, the Minister owes us a powerful explanation, which we have certainly not had.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

As the hon. Member for New Forest, West (Mr. Swayne) rightly said, clause 5 was removed in the House of Lords. The Government have not made an adequate case for changing the procedure, and clause 5 means that the involvement of the Lord Chief Justice in suspending or removing judges in Northern Ireland will be different from the involvement of the Lord Chief Justice in similar circumstances in England and Wales. Why change the system in one place, but not in another?

More profoundly, if the Minister is so determined to change a provision that was implemented two years ago, why did he not consult all the parties of Northern Ireland to find out what they think? I hope that he can reassure us that there has not been yet another unilateral deal with one side or another. I am sure that the Government are not foolish enough to pursue that path, which has almost always created the most enormous friction and frustrations in the peace process. As the hon. Member for New Forest, West rightly said, the 2002 Act is not yet in force, and we simply do not know whether the arrangements are effective.

In supporting the hon. Member for New Forest, West, I have two questions. First, what is the rationale for repealing an untried provision that was introduced since the general election and within the term of the current Administration? Secondly, if the Government believe that there is no need for the Lord Chief Justice to have such a veto, how do they explain the powerful rationale advanced for it when it was originally introduced? I am concerned, because if the Minister cannot give us a sound, logical explanation for the Government's approach, it unquestionably reduces our confidence in the changes that he makes.

He must understand that friction and tension will be generated if he proposes for no good reason that the arrangements in Northern Ireland diverge from those in the rest of United Kingdom. I hope that he can reassure us. Certainly, if he provides a powerful rationale for the change with some evidence, albeit circumstantial, I will not oppose it.

Desmond Swayne (Conservative, New Forest West)

Steady.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Indeed—we must be steady.

Should the Minister fail to provide that rationale and the amendment is pressed to a vote, we will have no alternative other than to do the sensible thing by supporting it.

Andrew Hunter (Independent Conservative, Basingstoke)

My hon. Friends and I support the amendment and accept and endorse the arguments advanced by the hon. Member for Montgomeryshire (Lembit Öpik). We believe that it was right that the Lords reinstated the status quo and gave the Lord Chief Justice the power of veto and we share the hon. Gentleman's incredulity that the Government have not explained why they are making this change. It is essential as a safeguard for the whole system that the Lord Chief Justice should have this reserve power to use in the most exceptional circumstances. We strongly support the amendment—to the point of a Division, if needs be.

Edward Garnier (Conservative, Harborough)

We are getting used to this Government changing their mind from time to time. If the Prime Minister can alter over a Sunday lunchtime his view on the necessity of a referendum on the European constitution, we should not criticise too heavily this promising Minister for having changed his mind about the Lord Chief Justice's required agreement to the removal or suspension of a judicial officer. But it strikes me as odd, in the light of the debates on the 2002 Act that took place in Standing Committee. The hon. Member for Kilmarnock and Loudoun (Mr. Browne), who has been transmogrified into the Immigration Minister—he has emigrated from Northern Ireland to an English Department, and good luck to him, as he is a Scottish Member—left behind a perfectly understandable piece of legislation in the 2002 Act, which allows the Lord Chief Justice a lock on the removal of judges. I seem to remember that the Government advanced a perfectly good case for the Lord Chief Justice having that reserve power, and I am not sure that anybody thought it sensible to remove it.

We are now required to accept that the Lord Chief Justice should merely be consulted. The Government have become famous for their ability to consult any number of people while not listening to them. I suspect that, if a judge proved inconvenient to the Northern Ireland Administration, whether under direct rule or devolved rule—in a political climate that perhaps we would not welcome at the moment, but which may come about—the Government would prefer it, politically, if the Lord Chief Justice were merely nodded to rather than having his views listened to. The Minister has a lot of explaining to do. If he can explain as well as he can promise, he will make a huge stride in adjusting the legal constitution of not only the United Kingdom, but Northern Ireland.

The amendment is not just a minor debating point but deals with a matter of acute seriousness. The removal of judges by a First Minister and Deputy First Minister is a matter of some political significance and should not be done lightly. Merely to consult the Lord Chief Justice, which does not import agreement or consent, is an insufficient safeguard to protect the integrity and independence of the judiciary. That is a simple point that was forcefully put by my hon. Friend the Member for New Forest, West (Mr. Swayne). I hope that the Minister will be able to explain this volte-face, U-turn and change of view, which is a complete reversal of the policy that, barely 18 months ago, the hon. Member for Kilmarnock and Loudoun was happy to endorse and which we were prepared to accept on the Floor of the House and in Standing Committee.

Nigel Dodds (DUP, Belfast North)

I support what other hon. Members have said about this important matter. It is not a trivial point but goes to the heart of the central issue of the independence of the judiciary in Northern Ireland. We require a cogent explanation of the Government's proposal to remove the power of the Lord Chief Justice to veto the removal of a high court judge, given that they only inserted such a power two years ago. So far, such an explanation has been completely missing from all the debates in another place and in Committee that I have read. The Minister owes the House a clear explanation of why the Government are taking this radical step.

Clause 5, which is entitled

"Removal or suspension from listed judicial offices",

states that

"In section 7 of the 2002 Act in subsection (5) . . . 'without the agreement of'

the Lord Chief Justice is to be replaced by the phrase, "except after consultation with" the Lord Chief Justice. Will the Minister explain what would happen if consultation took place with the Lord Chief Justice and the most senior judge in Northern Ireland made it clear that he was not, for whatever reason, in favour of the removal of the judge in question? Although it is sincerely to be hoped that such a situation would not arise, is it really politically conceivable that the First Minister and Deputy First Minister would press ahead regardless?

The reasoning and logic that lay behind giving this power to the Lord Chief Justice in the first place was right and proper. The problem is not that the Government's argument for the change is flawed, but that they have advanced no argument at all. I look forward to the Minister's response, but if he has nothing cogent to say, my hon. Friends and I will be happy to join the hon. Member for New Forest, West (Mr. Swayne) in dividing the House on the matter.

John Spellar (Labour, Warley)

During the preparation of the Justice (Northern Ireland) Act 2002, every effort was made to ensure that the legislation contained a balance of provisions that built up the criminal justice system. In some instances, we added provisions that were supplementary to the recommendations of the criminal justice review. The Government are always being encouraged to check our policies against the recommendations of the review. On reflection, we decided that some of the provisions put in place by the 2002 Act are unnecessary. This is a case in point. As hon. Members have explained, the 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. That change more closely reflects the recommendation of the criminal justice review.

David Trimble (UUP, Upper Bann)

Can the Minister refer me to the specific part of the criminal justice review—the exact language—that he is relying on? That would be helpful to the House.

John Spellar (Labour, Warley)

Yes, I will shuffle rapidly through my papers and refer the right hon. Gentleman to that particular section. The criminal justice review recommended that the

"removal from office of a judge or lay magistrate should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour."

It does not, therefore, envisage a subsequent veto on the decision of such a tribunal.

Hon. Members have rightly pointed out that it would be unlikely that there would be circumstances that would lead to the setting up of such a tribunal. Let us also remember that such a tribunal would include two of the highest judicial office holders in the land. That would also mean that the body had been set up by the Lord Chief Justice, who would have agreed to the procedure to be followed by the tribunal.

David Trimble (UUP, Upper Bann)

I hope that the Minister is not trying to mislead the House by saying that the tribunal would be set up by the Lord Chief Justice. The 2002 Act provides that it might be set up by him, but it also provides that such a tribunal could be set up by the First Minister or Deputy First Minister, after consulting the Lord Chief Justice. It does not follow, therefore, that the Lord Chief Justice would set up the tribunal in all cases. Nor does it follow, as the Minister said earlier, that the tribunal would consist of persons holding high judicial office. The Act provides that it can consist of

"a person who holds, or has held"

such office. That includes persons who might now be retired. The Minister needs to be more precise about this.

John Spellar (Labour, Warley)

I thank the right hon. Gentleman for that. A Lord of Appeal in ordinary, the Lord Chief Justice or another senior judge would chair such a tribunal. There would also be a senior judicial member as well as a lay member. As I said earlier, the Lord Chief Justice would also determine the procedure of these removal tribunals. In those circumstances, there would be considerable involvement by senior members of the judiciary. As my colleague, Lord Filkin, said in another place:

"Can we conceive of a situation where the Lord Chief Justice would consider it right to say in that circumstance, 'No, I will have my way. The decision of that tribunal should not carry'?"—[Official Report, House of Lords, 3 February 2004; Vol. 657, c. 600.]

It is, therefore, legitimate to say that, in the difficult circumstances in Northern Ireland, no single person, however high or low, can appoint a judge, and that no single person can veto the removal of a judge.

Edward Garnier (Conservative, Harborough)

if those arguments are so stunning and unarguable, why did the Government not advance them during our deliberations on the 2002 Act? The Minister is in danger of making up constitutional policy on the hoof.

John Spellar (Labour, Warley)

Following the passage of that Act, we have reflected on the situation to see—as we are often pressed to do—whether matters are in accord with the criminal justice review and to examine whether the measures are appropriate. Here we have a situation in which senior members of the judiciary would be involved every inch of the way. I hope that the hon. and learned Gentleman will accept that we are dealing with a very unlikely set of circumstances. Given that that is the case, we are dealing with a situation in which the senior judiciary is involved right the way through the procedure. Would we therefore want to put the Lord Chief Justice in a position in which he effectively had a veto over the decisions of a tribunal in which he and the senior judiciary had been so involved? To some extent, the onus is on the hon. and learned Gentleman to argue why a single person as eminent as the Lord Chief Justice—any Lord Chief Justice—should have such a unilateral right of veto in those circumstances.

Edward Garnier (Conservative, Harborough)

I used the opportunities provided by our deliberations on the 2002 Act to do a lot of arguing, much of which was against the Government's proposals. The Minister has already been exposed for placing false reliance on what he thought was in the criminal justice review and what he thought was in the 2002 Act. We are all entitled to know on what factors he has based this decision. It is no good simply saying, "It's unlikely", or "It's unthinkable." He has presumably applied his mind to the drafting of the Bill and has some cogent reason, which we would like to hear, for entertaining this volte-face.

John Spellar (Labour, Warley)

I resent the hon. Gentleman's implication. I draw his attention to recommendation 104 in paragraph 6.136 of the review, which states:

"We recommend that removal from office of a judge or lay magistrate should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority and convened by the First Minister and Deputy First Minister"—

as the right hon. Member for Upper Bann (Mr. Trimble) pointed out—

"or the Lord Chief Justice, that a magistrate or judge was unfit for office by reason of incapacity or misbehaviour."

There is nothing in that to imply or state that there should be a veto by the Lord Chief Justice within that procedure. There is no mention of a veto.

Desmond Swayne (Conservative, New Forest West)

Of course, that recommendation is perfectly satisfied by the 2002 Act as it stands. The recommendation says nothing about such a decision not being revoked subject to the agreement of the Lord Chief Justice. Recommendation 104 has already been satisfied by the existing legislation.

John Spellar (Labour, Warley)

I reiterate to the hon. Gentleman that the recommendation states that the

"removal of a judge or lay magistrate from office should only be possible on the basis of the finding of a judicial tribunal constituted under statutory authority",

et cetera. Nowhere does the recommendation state that there should be a subsequent veto by the Lord Chief Justice. The hon. Gentleman is absolutely right to say that the 2002 Act introduced such a veto, but that is not sustained by the criminal justice review. I therefore fully accept the argument that we have changed our mind on this matter, but equally I can refer back to the review in saying that perhaps we were wrong in the first place.

David Trimble (UUP, Upper Bann)

The provision that the Minister is quoting does not assist him at all. In fact, if we look not only at the summary of the conclusions but at the paragraph from which the summary is drawn, we see that that paragraph does not go into the detail of the procedure at all. All that it says is that the removal should be possible only on the basis of the finding of a tribunal. That merely sets the initial basis on which to proceed. The review is entirely silent on the procedure thereafter. As the 2002 Act was enacted, it was entirely consistent with the recommendation, and the Minister has not given any explanation for this change. He cannot rely on this recommendation, because it contains nothing that has any bearing on this point.

John Spellar (Labour, Warley)

I would never accuse my colleagues of having introduced inconsistent legislation. The right hon. Gentleman is right to say that the recommendation is silent in that regard, but, equally, the recommendations state that

"removal . . . should only be possible on the basis of the finding of a judicial tribunal".

That does not imply that there should then be a veto by another party who would therefore be able to override a tribunal that either a fellow Lord of Appeal or the Lord Chief Justice himself could have participated in or chaired.

Andrew Hunter (Independent Conservative, Basingstoke)

rose—

Lembit Öpik (Liberal Democrat, Montgomeryshire)

rose—

John Spellar (Labour, Warley)

I give way first to the hon. Member for Basingstoke (Mr. Hunter). I will come back to the hon. Member for Montgomeryshire (Lembit Öpik).

Andrew Hunter (Independent Conservative, Basingstoke)

That is very kind of the Minister, but I have forgotten what I was going to say.

John Spellar (Labour, Warley)

I give way to the hon. Member for Montgomeryshire.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

The hon. Member for Basingstoke (Mr. Hunter) was going to ask the Minister a question, which is this: if his defence is that no veto is implied, why does he think that that is a reason to take a power from the Lord Chief Justice? Why does he not equally accept that it is not implied that there should be no veto? It is an extremely weak argument to say that, because it is not necessarily stated that there should be a veto, he should remove the power. If that is what he is saying, is that the strategy that the Government will henceforth adopt for reviews—taking things out that are not explicitly included?

John Spellar (Labour, Warley)

I am interested that the hon. Gentleman has now taken up mind reading, along with asteroid watching, as one of his occupations. We would of course be interested if his skills in mind reading had allowed him to read the mind of the right hon. Member for Ross, Skye and Inverness, West (Mr. Kennedy), the leader of his party, as to whether he will remain as party leader. We would welcome the hon. Gentleman's contribution on that.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

Clearly the gentleman is not for turning. Indeed, after hearing of injustices of the kind that the Minister is putting forward today, I am sure that my right hon. Friend will fight for as long as it takes to get us on to the Treasury Bench and to enable me, as Secretary of State for Northern Ireland, to right the many wrongs that we are observing this afternoon.

John Spellar (Labour, Warley)

If the hon. Gentleman's leader is going to do that he will have to raise his game, compared with recent performances. We should return to the point, very substantially.

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

No doubt when the Minister was considering the change that the Government want to make he looked back at precedent, and no doubt he is aware of the precedent in this matter. To narrow things down, over the last 40 years, say, how many instances have there been of a judge being removed for either of the two reasons specified and what method was used?

John Spellar (Labour, Warley)

My hon. Friend makes a powerful point, which of course reinforces the point that I made earlier: these are circumstances that are almost inconceivable or very unlikely in respect of there being a need to remove a judge. If we had reached those circumstances and had gone through the procedure as outlined by the criminal justice review—

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

I thank the Minister for giving way. I can well understand that nobody has the information as to how often this has happened, but surely the crucial thing is, if it happened how was it done? Surely that was part of the research that coloured the Government's mind when they were drawing up the original Act and this amendment to it. Can he say how these things were done previously? Only when we know that will we be able quantifiably to assess whether the proposal is an improvement.

John Spellar (Labour, Warley)

Previous provisions have of course required resolutions of the House.

David Trimble (UUP, Upper Bann)

The Minister will want to remember that we are not talking about the removal of a High Court judge, a lord justice of appeal or the Lord Chief Justice. The procedures for those are different, but tonight we are debating the particular procedure that deals with people holding lesser judicial offices right down through what the Minister claims to be nearly 1,000 minor appointments. While the removal of the Lord Chief Justice, a lord justice or a judge of the High Court is done wholly differently and has arisen only in most exceptional circumstances, I am sure that we could find examples where people have been removed from the minor appointments.

Mark Francois (Conservative, Rayleigh)

The Minister's brief says, "Cut your losses and sit down."

John Spellar (Labour, Warley)

Not at all. We have been through a number of these areas, examining the circumstances of the review and also the—

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

I thank the Minister for giving way, because it is essential that we know what the procedure was before. If we do not, we will have no way of measuring what is proposed against that procedure. I would have thought that, having introduced two criminal justice Acts, the information on how the matter was dealt with previously and through what procedure would be readily to hand.

John Spellar (Labour, Warley)

I hope that I can enlighten my hon. Friend. The current grounds and statutory provisions for removal are as follows. The Lord Chief Justice, every lord justice of appeal and every judge of the High Court hold office during good behaviour, subject, as the right hon. Member for Upper Bann said, to a power of removal by Her Majesty on an address presented to Her Majesty by both Houses of Parliament. That is under the powers of section 13(1) of the Judicature (Northern Ireland) Act 1978.

County court judges and resident magistrates may be removed by the Lord Chancellor on grounds of incapacity or misbehaviour under section 105 of the County Courts Act (Northern Ireland) 1959 and section 11 of the Magistrates Courts Act (Northern Ireland) 1964 respectively.

Statutory officers—masters and district judges—hold office during good behaviour and may be removed by the Lord Chancellor on account of misbehaviour or inability to perform the duties of office. That is under sections 71(1) and 71(2) of the Judicature (Northern Ireland) Act 1978.

Members of the deputy judiciary may be removed by the Lord Chancellor, with the concurrence of the Lord Chief Justice and following an investigation conducted by a judge nominated by him, on the following grounds: misbehaviour, incapacity and failure to sit, attend training events or observe standards. Those are the procedures.

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

I am grateful to the Minister for that information. Does he agree that in each of those instances, until now, the people of the north of Ireland have had no say whatever in relation to this part of the legislation? Is not that the type of imbalance that the Bill is trying to redress?

John Spellar (Labour, Warley)

That is partly the case, but of course it is also the case that the changes introduced under the 2002 Act involved more—the people of Northern Ireland and the judicial representatives in Northern Ireland. The real question that is being addressed here between the 2002 Act and clause 5 is how that balance is struck between those various individuals. As I said earlier, there is also a feeling that it is wrong for a single individual to have the right of appointment, or indeed of veto, over a dismissal within the system.

David Trimble (UUP, Upper Bann)

We are beginning to get closer to the heart of the matter. The current arrangements are that removal from the posts we are talking about is done by the Lord Chancellor on certain grounds. Of course, in such a situation the Lord Chancellor would be acting judicially, not politically. The provisions that the Government are including take the balance away from the judicial equivalent, which would be the Lord Chief Justice of Northern Ireland, and towards the First Minister and the Deputy First Minister. What hitherto has been a power resting in someone who would be acting judicially is being balanced towards people who would be acting politically. That again reinforces other aspects of the Bill, whereby the Government are foolishly opening the door to political influence over, first, the appointment and now the removal of judges.

John Spellar (Labour, Warley)

I am sorry, but I cannot accept that argument from the right hon. Gentleman because the decisions on the removal or otherwise of a judge would be taken by a tribunal, which would involve senior members of the judiciary.

David Trimble (UUP, Upper Bann)

That tribunal would be appointed by the First Minister and Deputy First Minister.

John Spellar (Labour, Warley)

I am slightly surprised that the right hon. Gentleman is therefore impugning the integrity of members of the judiciary who would be sitting as a tribunal, who would probably include one of the lords justices of appeal, and who could include the Lord Chief Justice. Whether those are appointed by the First Minister and Deputy First Minister, or by the Lord Chief Justice, I hope that he was not impugning the integrity of those individual judges in taking a proper, fair and impartial decision, irrespective of who had appointed them to chair the tribunal.

David Trimble (UUP, Upper Bann)

The tribunal will be appointed by the First Minister and Deputy First Minister. Of the three persons involved, there is only an absolute requirement that one of them should hold a judicial office.

John Spellar (Labour, Warley)

Certainly, however, they would have enormous influence. It is really a question of whether their decision as members of the tribunal should stand, or whether the Lord Chief Justice should have a veto. That reflects nothing about the Lord Chief Justice. The issue is merely whether, within the system, one individual should have the right either to appoint unilaterally or indeed to prevent the dismissal unilaterally. That is the key question.

David Trimble (UUP, Upper Bann)

In view of the fact that there will be political influence in the appointment of the tribunal, and there is only a guarantee that one out of the three persons on that tribunal will be a person who holds judicial office, that was no doubt part of the reason why the Government in 2002 thought that it would be a useful safeguard to ensure that the Lord Chief Justice would have a power to look again at the matter. The decision of the Government to withdraw that safeguard is a matter of concern and we saw what view was taken of that in the other place.

John Spellar (Labour, Warley)

We do not regard it as a safeguard in that sense but as a veto by one individual over the decision of a properly constituted tribunal in the extremely unlikely circumstances of such a tribunal being required. The right hon. Gentleman is right that that is the nub of the issue as to whether the House regards this as a necessary safeguard or as an unnecessary veto, and that due process would therefore require a properly appointed tribunal to undertake that decision, and for that decision not to be subject to an override by an individual, however eminent and just.

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

The Minister has obviously thought deeply about this matter. Can he give me one good reason why a judicial person should have a veto over the decision of others including the First Minister and Deputy First Minister in the north of Ireland? Secondly, can he give me another good reason as to why the judgment of a legal person should be better and more pristine than the judgment of political people, because the implication of the right hon. Member for Upper Bann (Mr. Trimble) is that that which is judicial is good and that that which is political is questionable?

John Spellar (Labour, Warley)

I am not sure that I go along all the way with the argument that my hon. Friend advances in this regard. What I am saying is that the appointment of a tribunal with the involvement of the senior judiciary, in order to investigate and adjudicate on the question of whether a judge or magistrate is a right and proper person to be holding that office, must properly be made under judicial procedures and with the involvement of the senior judiciary. Once that tribunal has been appointed, either by the Lord Chief Justice or by the First Minister and Deputy First Minister, external or even internal political influence on the operations of that tribunal would be quite improper. That tribunal should come to its decision. That is not what we are deciding today, however; what we are deciding is whether that tribunal, when it has come to a decision, should be subject to a veto by the Lord Chief Justice. As I stress again, that in no way impugns this or any other Lord Chief Justice. I am talking about the basic principle.

Desmond Swayne (Conservative, New Forest West)

For the Opposition, the occasion of a Government U-turn is always joyful. This afternoon has almost been as jolly an experience as last week's great Government U-turn, as we have watched the Minister squirm and try to find an explanation. He says that recommendation 104 requires that it will be possible for a judge to be removed only on the basis of the finding of a tribunal. That is true, and it is true now—it is only possible on the basis of a tribunal, as the procedure sets out in the 2002 Act. The Minister is being falsely pedantic in thinking that simply because that is a necessary condition, which it is, it rules out any other possibility. It is strange that he should be so coy about going beyond the provisions of the criminal justice review, in saying that the Government cannot take one step further than anything that is in black and white in that review. That was not the line that he took with respect to clauses 2 and 3, in which they have gone well beyond that.

I sense that the mood of the House is that we will not get much further on this issue tonight. I therefore wish to press the amendment to a vote.

Clause 6 — Duty Of Director Of Public Prosecutions To Refer Certain Matters To Police Ombudsman

Andrew Hunter (Independent Conservative, Basingstoke)

I beg to move amendment No. 22, in page 3, line 38, after 'shall', insert 'within his discretion'.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to discuss the following amendments:

No. 17, in page 4, line 2, at end insert—

'(4AA) The Director shall refer to the Ombudsman any allegation coming to his attention that a police officer—

(a) may have committed a criminal offence; or

(b) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings,

which is not the subject of a complaint, unless it appears to the Director that the Ombudsman is already aware of the allegation.'.

No. 18, in page 4, line 3, after '(4A)', insert 'and (4AA).'.

No. 19, in page 4, line 6, leave out from 'insert', and insert ', (4A), or (4AA),'.

No. 20, in page 4, line 11, leave out from 'substitute' to end and insert ', (4), (4A) or (4AA).'.

Andrew Hunter (Independent Conservative, Basingstoke)

I think that the Minister's reply on the amendment will be interesting. He spent 40 minutes or so arguing against an amendment on the ground that it was inconsistent with the criminal justice review. Now he will have to stand on his head and argue against an amendment that seeks to make the Bill consistent with the criminal justice review. He will argue, I anticipate, unless I convince him by the power of my arguments, for a clause that is inconsistent with the review.

The aim of amendment No. 22 is self-explanatory. It is to give the Director of Public Prosecutions for Northern Ireland discretion as to whether to submit certain matters to the police ombudsman. Interestingly, the amendment is linked with two amendments that were tabled by the hon. Member for South Down (Mr. McGrady)—I presume that the hon. Member for Newry and Armagh (Mr. Mallon) will argue for them—that seek to do precisely the opposite. If I understand the Social Democratic and Labour party amendments correctly, they, as it were, firm up the obligation of the DPP to refer to the ombudsman.

The essence of the argument for amendment No. 22 is that the Bill—the same applies to the hon. Gentleman's amendments—is inconsistent with the criminal justice review. That review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appeared to him to indicate that a police officer may have committed a criminal offence, or may in the course of a criminal investigation have behaved in a manner that would justify disciplinary proceedings.

Paragraph 4.132 of the review states that article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 should

"be supplemented with a provision enabling"—

"enabling" is the key word, not "compelling"—

"the prosecutor to refer a case to the Police Ombudsman for investigation where he or she is not satisfied with an Article 6(3) response."

The review recommended not that the DPP should be required under an obligation to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that are carefully defined: where he or she is dissatisfied with the reply received under article 63). That in itself prompts the question: what did the review conclude about article 6(3)? Paragraph 4.131 states:

"We recommend that the powers contained in Article 6(3) be retained and that the head of the prosecution service"—

I emphasise that: the head of prosecution, not the police ombudsman—

"should make clear publicly the service's ability and determination to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations of the commission of a criminal offence, and to request further information from the police to assist it in coming to a decision on whether or not to prosecute."

In other words, article 6(3) clearly states that primacy lies with the DPP, not with the police ombudsman. The Bill, to be reinforced by the SDLP amendments, contradicts utterly the conclusions of the criminal justice review, and therefore, according to the arguments recently advanced by the Minister, is unacceptable.

In essence, the review gives the DPP, not the ombudsman, primacy in investigating matters to which clause 6 refers. The review recommended that the powers of article 6(3), which give primacy to the DPP, should be retained. The only duty that the review recommended should be imposed on the DPP was a duty to ensure that any allegations of malpractice by the police are fully investigated. The Bill, therefore, goes appreciably further than the review.

In Committee, the Minister said:

"Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early",

but I think that we are entitled to be cynical about the Minister's words. It seems that spin is at work. That is not what the review recommended. It recommended retaining the powers of article 6(3), which give primacy to the DPP's investigative and prosecutory role, and recommended that the police ombudsman should become involved only if the DPP were dissatisfied with an article 6(3) response. The SDLP amendments, like the Bill, try to turn the criminal justice review on its head.

In Committee, the Minister said:

"The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct",

but that is not what the review says and it is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all misconduct, should be subject to prosecution if the DPP believes that there is a case to be answered that is substantiated by evidence that will stand up in court. The external assistance of the ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating allegations. That should be a matter for the DPP alone to decide, just as the criminal justice review recommended.

The Bill as it stands allows the DPP no discretion. Under the Bill, if any matter appears to the DPP to indicate that an offence has been committed, he is obliged to refer it to the ombudsman. He cannot exercise any discretion, entirely contrary to the criminal justice review.

The Minister said that

"the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions."—[Official Report, Standing Committee D, 25 March 2004; c. 68–69.]

That opinion can be disputed, but we can be certain that the clause undermines the role of the DPP and advances the role of the ombudsman, in contradiction of the criminal justice review. The reason for that is clear. The explanatory notes explain it. They state that the change is in line with the undertaking of the Government in the joint declaration published in May 2003 and referred to at page 33 of the updated implementation plan. The amendment serves the simple purpose of moving away from the wheeling and dealing that resulted in the Hillsborough joint declaration, and makes the Bill consistent with the criminal justice review.

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

I wish to speak to amendment No. 17, to which amendments Nos. 18, 19 and 20 are consequential. I raised the matter on Second Reading. It has also been raised by my hon. Friend the Member for South Down (Mr. McGrady). On both occasions, we were advised that the Government would think about it and, to use the vernacular of this evening, come back to us on it.

I pursue the matter in the interests of seeing where "back" leads to, because I am still not clear about the Government's position.

The matter is important for two reasons. I consider it even more so, having listened to the analysis of the hon. Member for Basingstoke (Mr. Hunter), which tried to rewrite legislation all in one go and transfer from the office of the ombudsman to the office of the Director of Public Prosecutions the ombudsman's entire role in one fell swoop. Of course, that was so transparent that people will realise that very quickly.

First, in the wording that we have presented:

"The Director shall refer to the Ombudsman any allegation coming to his attention",

so that, in effect, the DPP would be able to give an early-warning signal if there were going to be a possible problem. Let us consider some incidents in the past in Northern Ireland that are still unresolved. I refer specifically to the Finucane case—the murder of Patrick Finucane. For 15 years, there might have been a resolution had there been an early-warning signal process, but 15 years later, that matter is still not resolved. It is of weighty contention in relation to the report of Judge Corry. Again, action on that is being awaited. Had the Director of Public Prosecutions been able to work in such a way as to give an early-warning signal, and immediately refer

"to the Ombudsman any allegation coming to his attention",

many past problems might well have been short-circuited.

On that basis alone, it would be worth the Government's while to adopt amendment No. 17, but there is a second element to the matter. Primacy does not rest with the Director of Public Prosecutions; primacy on this matter rests with the ombudsman, and the judgment should be for the ombudsman. The Bill as it stands makes judgment reside with the DPP, referring to a matter that "appears to the Director", rather than saying, as I believe it should, that the DPP should refer any allegation. He should not just use his judgment, but refer any allegation that he is aware of.

There are those who might say that that is too neat a point to be making in legislation, but given the history of what has happened in Northern Ireland, the difficulties that we have had and the way in which efforts have been made to create a criminal justice system that is ahead of anything in England or Wales, or in the Republic of Ireland, we should be very careful with points of this nature.

The Government should respond to this matter. They should welcome an early-warning system and not allow in any way primacy to be transferred from the ombudsman to the DPP. For that reason, I recommend amendment No. 17 to the House.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I was a little agnostic on amendment No. 22, but having listened to the hon. Member for Basingstoke (Mr. Hunter), I do not find it unreasonable to include the words that he outlines. If I had just walked in, having travelled the length of the country—from Kirkwall, for example—and had not known the political affiliation or the status of the hon. Member for Basingstoke, I might have mistaken him for a Minister, from listening to his argument. The argument that he put forward was similar to the kinds of argument that one hears from the Government, in terms of language and rationale.

Desmond Swayne (Conservative, New Forest West)

That is not a compliment.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

I was making it as a morally neutral statement, in the hope that I would persuade the Minister, in responding, to acknowledge—on a matter of judgment, not of principle—that the argument made by the hon. Member for Basingstoke makes sense.

I shall also be interested to hear what the Minister says on the position of the hon. Member for Newry and Armagh (Mr. Mallon) and amendment No. 17. Having listened to his argument, I am not entirely clear what the amendment would add to the legislation as it already stands.

Nigel Dodds (DUP, Belfast North)

As the Bill currently stands, clause 6(3) sets a very low threshold indeed. It says:

"The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a police officer—

(i) may have committed a criminal offence; or

(ii) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

What the Government propose is already a low threshold in terms of reference by the DPP to the police ombudsman.

The hon. Member for Newry and Armagh (Mr. Mallon) seeks to lower the threshold completely—almost so that there is no threshold at all. The DPP would exercise no discretion whatever under amendment No. 17, by whose terms, as I understand them, any allegation at all—including that a police officer might have committed a criminal offence—would have to be automatically transferred to the police ombudsman. That is not reasonable on any terms. Surely it is entirely reasonable that the DPP should make some sort of assessment of whether the allegation in question is entirely vexatious, spurious or trivial, rather than having to transfer every single allegation, however vexatious or trivial, to the ombudsman.

Lembit Öpik (Liberal Democrat, Montgomeryshire)

That is my understanding, too, of what amendment No. 17 would do. Does the hon. Gentleman agree that if that is the correct understanding—and I may have misunderstood—it provides every opportunity to reduce the credibility of the system and to create a moribund environment in which many unproven cases hold up the genuine cases that we would like to see explored?

Nigel Dodds (DUP, Belfast North)

I agree with the hon. Gentleman. That is exactly the danger, and exactly why there needs to be discretion for the DPP. The hon. Member for Basingstoke (Mr. Hunter) set out very cogently the arguments in favour of the DPP's having discretion on this, and I shall not rehearse those arguments except to emphasise that we are dealing with an issue on which the Government's proposals clearly fly in the face of the criminal justice review. The Minister has time and again today prayed in aid the criminal justice review to support his proposals, but on this proposal, which clearly runs counter to the criminal justice review, the Government are proceeding nevertheless. Indeed, that criticism can be doubly applied to the hon. Member for Newry and Armagh, because he wants to move even further away from the terms of the criminal justice review.

That brings us back to the fundamental point that we must look at the origins of the Bill: the Hillsborough talks that led to the joint declaration.

As with the amendment that dealt with removing the veto power of the Lord Chief Justice, I should be interested to know from where exactly the pressure has come, what representations have been made and why the Government feel that, on this occasion, it is right to depart from the criminal justice review, given that they have carefully followed its recommendations and claims in respect of other matters.

John Spellar (Labour, Warley)

I begin by welcoming the hon. Member for Orkney and Shetland (Mr. Carmichael), on whose travels we have had regular bulletins. I am in the interesting position of being pulled in one direction by the Democratic Unionist party and in another by the Social Democratic and Labour party, which might indicate that we have struck the right balance between the two in this clause.

The DUP amendment would give the Director of Public Prosecutions discretion as to whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it absolutely clear at the outset—as the hon. Member for Basingstoke (Mr. Hunter) pointed out, I said this in Committee—that the current terms of the clause are no reflection whatsoever on the professionalism of the Director of Public Prosecutions. I am happy to endorse fully the independence and the impartiality of the DPP, in whom the Government have every confidence.

Contrary to what the Opposition say, the Government believe that the current clause accurately meets the criminal justice review's recommendation, as stated in paragraph 4.133, that a duty be placed on the DPP to ensure that any allegations of malpractice by the police are fully investigated. How would that work out in practice? Let us say that the DPP is working on a case file from the Police Service of Northern Ireland and is examining it to determine whether the case should be prosecuted. In the course of this process, he comes across something that suggests that a police officer may have acted improperly. I am talking here not about evidence being presented as part of the case, but about uninvestigated evidence: incidental details, inconsistencies, niggling questions, worrying gaps in the evidence or in procedure, or allegations made by witnesses—a point to which I shall return. In such a situation, he passes these matters to the police ombudsman. After all, he does not have the responsibility or the resources to investigate them and to find out whether there is any substance to them; that is the proper role of the police ombudsman. Nor, of course, is it the responsibility of the police to investigate themselves—that is why we have a police ombudsman. It is her responsibility to investigate police wrongdoing.

The police ombudsman then investigates the matter. It may turn out to be nothing, or a very serious matter indeed. If there is evidence that could lead to prosecution, she will pass the file to the DPP, who will take a decision on prosecution based on the properly collated evidence placed before him. What the provision does not do is to make the police ombudsman investigate suspected police wrongdoing that has already been investigated once, and in respect of which the DPP has been asked to take a decision about prosecution. It is not a circular process and it does not create double jeopardy. The DPP does not need to refer to the ombudsman matters of which she is already aware.

Nor does the provision allow the DPP to take a decision on the prosecution of a police officer based on a few scraps of evidence that he happens to come across in the course of his work. The fundamental premise on which the provision is based is that the DPP's job is to take decisions about prosecutions on an informed basis, and what we are talking about here are uninvestigated suspicions. I should also make it clear, particularly for the benefit of my hon. Friend the Member for Newry and Armagh (Mr. Mallon), that this provision does not allow the DPP to pick and choose which suspicious matters he passes to the police ombudsman. The DPP does not have discretion over whether he makes a referral; he does, however, have to keep his eyes open and to identify suspicious matters as such.

Some Members are concerned that that means that the DPP has no discretion. As I have explained, he ought not to be given responsibility for sorting out the wheat from the chaff; that is not his job—I doubt whether he would want it—but the police ombudsman's. He exercises his judgment in identifying matters for referral; he is not an automaton. Conversely, my hon. Friend the hon. Member for South Down (Mr. McGrady) complained in Committee, and my hon. Friend the Member for Newry and Armagh complained this evening, that the clause as drafted gives the DPP too great a discretion over referrals. Again, that is not the case. The clause is set at a very low threshold, as the hon. Member for Belfast, North (Mr. Dodds) rightly said. I stress that the DPP must refer to the ombudsman all matters—a clearly comprehensive term—that appear to indicate that a police officer may—

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

I thank the Minister for giving way. In fact, the phrase used is

"any matter which . . . appears to the Director",

so the judgment lies with the DPP. That is the difference, and that is why the Minister's analysis is wrong. That phrase allows the judgment to rest with the DPP, which it should not.

John Spellar (Labour, Warley)

As I said, the DPP refers to the ombudsman matters that indicate that a police officer might have committed a wrongdoing. My hon. Friend should take cognisance of the observation of the hon. Member for Belfast, North that, in fact, that is a very low threshold. Clearly, such matters have to come to the notice of the DPP in order for him to refer them.

As I was saying, the DPP must refer to the ombudsman all matters that indicate that a police officer might have committed a criminal offence, or might have behaved in the course of a criminal investigation in a manner that would justify disciplinary proceedings. Frankly, that covers anything and everything suspicious. For the record, it also covers allegations of wrongdoing, which by their very nature indicate that someone might have done something wrong.

As I said at the outset, I believe that we have struck the right balance and that we are conforming with the criminal justice review. I therefore urge the House to oppose the amendment.

Andrew Hunter (Independent Conservative, Basingstoke)

I listened to the Minister with great interest and although I would like to agree with him, I cannot. He offers an interpretation of the Bill, but it is not a compelling one or the only one. Looking again at proposed new subsection (4A)(a)(i) and (ii), it seems clear that the Bill as it stands will give the DPP no discretion whatsoever. If he believes that the police have committed any criminal offence or wrongdoing, he is obliged to pass matters on to the ombudsman. That is a retrogressive step, so I shall press the amendment to a Division.

Clause 7 — Influencing A Prosecutor

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 7, in page 4, line 13, leave out clause 7.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: No. 14, in page 4, line 29, clause 7, leave out

'a term not exceeding 5 years'

and insert 'life'.

No. 15, in page 4, leave out lines 31 and 32.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

May I say how good it is to be with the House at last? I understand that, courtesy of my hon. Friend the Member for Montgomeryshire (Lembit Öpik), the House has been kept well advised of my progress southwards through the country. I do not know whether the problems of travelling to and from the northern isles or the problems of Northern Ireland will be the first to be resolved, but I suspect that neither outcome will be quick. I am grateful to my hon. Friend for his assistance at such short notice today. I can at least say that the fog has cleared and I am here. If I were less kind, I might say: I am here, so the fog will now clear.

Clause 7 was the subject of one of the more interesting parts of our debates in Committee. I have remarked in the past on the tendency of this and other Governments to criminalise conduct that is already criminal. Part of the Minister's justification for the clause, both on Second Reading and in Committee, was that the creation of offences of this sort would send a signal. That is worth considering, and it is worth asking exactly what signal clause 7 is likely to send. As we heard in Committee, the fact is that it signals that an attempt to pervert the course of justice by influencing a prosecutor is somehow a lesser species of the existing common law offence. The common law offence on indictment attracts a maximum penalty of life imprisonment, whereas the offence in the Bill has a maximum penalty of five years imprisonment, or a fine, or both.

In Committee, the Minister told us that he had researched the point and that the average sentence for the offence of perverting the course of justice was something in the region of 24 months, as I recall.

John Spellar (Labour, Warley)

May I clarify that? The average sentence is between four and 24 months.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am grateful. That was about as helpful as the Minister got in Committee, and I hope that he can go a wee bit further tonight.

The range of four to 24 months where the maximum penalty available to the courts is life imprisonment is an interesting one to consider. If the maximum penalty goes to five years in prison, I would say that there will be downward pressure on the sentences imposed because the penalty will be assessed within the range available to the court. It will be interesting, if the clause is enacted, to revisit it in five or 10 years' time to see what the effect has been on sentencing, and compare that trend against the trend in other respects, my suspicion being that the average length of custodial sentences is increasing.

The clause appears not properly to appreciate the distinction that exists between the possible and the actual penalties imposed. Most worryingly, it betrays a total lack of understanding of the practicalities of work in the criminal courts. Often it may appear to a prosecutor who is preparing a case that this sort of offence is of a lesser seriousness and towards the bottom end of the scale. Only when the witnesses are in court and one can hear the evidence in its totality does it become apparent just how serious an offence may be. To limit the range of sentences available to the court to five years, as the Minister seeks to do, is to limit the range of disposals available to the court, which runs the real risk of miscarriage of justice, in that someone will not receive the full penalty that should be available for them.

In Committee, we asked the Minister why the Government had felt it necessary to introduce the clause. Is there a particular problem to which attention requires to be drawn? How many prosecutions have there been for attempts to pervert the course of justice by influencing a prosecutor in, say, the past five or 10 years? What problems encountered by the prosecution authorities or the courts in obtaining convictions in those cases mean that we now need a statutory offence? The Minister did not answer those questions in Committee, and I invite him again to tell me how many prosecutions there have been and what problems have been encountered. I suspect that the clause is a window-dressing exercise, a bit of padding to make the Bill be seen to be doing something even if it is something that is not necessarily pressing in any way.

The amendment has been grouped with amendments Nos. 14 and 15, tabled by the right hon. Member for Upper Bann (Mr. Trimble). We agree with those. Amendment No. 14 is entirely on all fours with an amendment that I moved in Committee, and the points that I have already made apply to it with equal force.

From the point of view of the practicality of obtaining prosecutions and convictions, amendment No. 15 makes good sense. In relation to proving a charge under the clause, a hurdle is being put in the way of the prosecutor that does not exist for the common law offence. One can quite easily imagine that a prosecutor working under pressure and trying to meet deadlines will find himself or herself either forgetting initially to obtain the director's consent or, worse still, obtaining it but omitting to make proper reference to it on the indictment and therefore failing properly to specify the charge.

I have heard nothing on Second Reading or in Committee to justify the clause. Accordingly, I urge the House to delete it from the Bill.

David Trimble (UUP, Upper Bann)

I pay tribute to the hon. Member for Orkney and Shetland (Mr. Carmichael), who drew this matter to our attention in Committee. I hope that the Minister has reflected on what was said there. All that the hon. Gentleman said was absolutely right. The clause, which the Minister says is intended to highlight a particular matter, in fact sends the signal that that matter is less important. By reducing the sentence and putting a procedural hurdle in the way, the clause will have completely the opposite effect to that which the Minister wants.

The most elegant solution to the problem would be to agree amendment No. 7 and delete the clause. I know, however, that the Minister is not a free agent and is not able to do that because the Government made promises to people that they would introduce clauses of the nature of clause 7, and I tabled amendments Nos. 14 and 15 to remove the limitations being placed on the existing offence and bring the clause into line with the more substantial penalties that already exist. The Government are reducing the penalties available for this form of perversion of the course of justice. I tabled the amendments knowing that the Minister is not a free agent so that he can keep his promises to others without having a perverse effect. I hope that he will do so.

Nigel Dodds (DUP, Belfast North)

I support amendment No. 7 and welcome the hon. Member for Orkney and Shetland (Mr. Carmichael) for, in spite of his late arrival, proposing a very good amendment. I shall not rehearse the arguments that have been put, but the hon. Gentleman said that the clause was a piece of unnecessary padding added to the Bill, and that prompts the question that I have asked about a number of provisions—whether the Minister can explain exactly why the clause was added.

What representations have been made to him? Who has pressed him to introduce this superfluous and unnecessary provision? The Bill's origins lie in the Hillsborough discussions and the joint declaration. Is that really the best way to approach the drafting of legislation in such a crucial area?

Clause 7 is completely unnecessary as it replicates the common law offence. If the hon. Gentleman wishes to divide the House on the issue, he will have the support of my party.

Desmond Swayne (Conservative, New Forest West)

When, in Committee, I asked the Minister why he was troubling us with a new clause that was designed to remedy a situation that, he admitted, was inconceivable, he told me:

"I do not think that it is necessarily good practice to retain redundant legislation".—[Official Report, Standing Committee D, 25 March 2004; c. 62.]

Well if it is not good practice to retain it, it is worse practice to create it, but that is exactly what the Minister has done by creating a statutory offence when a perfectly good common law offence exists.

The Minister's excuse for doing so was given in Committee when he said:

"We are highlighting the seriousness of such an offence".—[Official Report, Standing Committee D, 1 April 2004; c. 90.]

It is a strange way to highlight the seriousness of an offence to reduce the potential sentence from life to five years. I hope that the hon. Member for Orkney and Shetland will press his amendment to a Division.

John Spellar (Labour, Warley)

It is right that we gave considerable thought, as I said in Committee, to the appropriate penalty to attach to the offence. It was decided that it should be compared to the offences of intimidating a juror, which carries a penalty of five years following conviction on indictment, and of perjury, which carries a penalty of seven years following conviction on indictment. It is true that the common law offence, like all such offences, attracts a maximum penalty of life. However, it is not a logical conclusion that moving away from that step towards infinity lessens the penalty.

As I said, case law suggests that the offence has in practice carried a sentence of between four and 24 months. There have been about 11 cases of attempting to pervert the course of justice in the past five years. It is not likely that introducing penalties that are significantly higher than those that are being imposed will lead to a reduction in the range of the tariff. In common law cases that carry a maximum sentence of life, it is not the maximum that is the major determinant, but the case law and the standard tariff that is applied by the courts in a particular jurisdiction.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Is the Minister really telling the House that he cannot envisage circumstances in which a serious attempt to pervert the course of justice by influencing a prosecutor would not merit a sentence in excess of five years?

John Spellar (Labour, Warley)

All I can say is that that has not been the experience, and five years is a substantial penalty. The hon. Gentleman is a lawyer and he could advise me whether a common law case could be mounted if it were felt to be more relevant in the circumstances. The case law shows a substantial gap between the average tariffs imposed and the one that we are suggesting. It is not normally the case that hon. Members suggest that the penalty should be life imprisonment.

The hon. Gentleman rightly points out that Governments of all persuasions seek to put on statute offences found in the common law. Why have they done so? First, common law offences are by their very nature uncertain, particularly at the edges. Offences therefore may be put on statute for reasons of clarity. The common law is open to interpretation, and that interpretation may change over time.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

What particular problems, around the edges or otherwise, relating to the common law offence of attempting to pervert the course of justice have been encountered that have led to this provision being introduced?

John Spellar (Labour, Warley)

It is more a general movement towards rationalising the position. We have considered the offence and the theoretical possibility of a life sentence against the range of sentences that have been imposed, and we will bring the two a little closer together. Secondly, it may be necessary to formalise the range of penalties available for a certain offence. Finally, an offence might be put on statute to ensure that it is fully human rights compatible.

Turning to the specifics of the offence in clause 7, the Government have decided to put it on statute for the sake of clarity. We want to underline the independence of the director by making it abundantly clear that improperly seeking to influence him or her is illegal. The independence of the DPP and the prosecutors is critical to the functioning of the justice system in Northern Ireland. The current director, and indeed the previous incumbent, brought integrity and independence to the job; and have always made their prosecution decisions impartially, independently and objectively.

However, a new system of justice is being created for Northern Ireland, and in that new system, after devolution, the DPP will be an explicitly independent officer. At the moment, the DPP is subject to the superintendence of the Attorney General for Northern Ireland. However, when part 2 of the 2002 Act is commenced, his relationship with the Attorney-General and the Advocate-General will change and become one of consultation. In those changing circumstances and the circumstances of Northern Ireland, it needs to be made very clear that prosecution decisions will be taken impartially, independently and objectively. The creation of this offence will help further to enhance public confidence in the administration of justice.

Amendment No. 15 would mean that prosecutions of this offence could be carried out without the consent of the director. The subsection the amendment seeks to remove is there to ensure that a prosecution is brought only when there is sufficient evidence and when the prosecution will be in the public interest. It is an important safeguard to ensure that only cases that should be prosecuted are prosecuted.

I ask the hon. Member to withdraw his amendment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

In circumstances in which all hon. Members agree that attempting to pervert the course of justice by influencing a prosecutor is a serious matter and requires prosecution with the full array of powers available to the authorities and punishment with the utmost vigour, I find it hard to believe that we will again divide on the issue. But what alternative does the Minister leave us? We have asked him pertinent questions on three occasions. What problems have the prosecuting authorities encountered? How many cases have been lost, and how many have even been mounted? Why is a problem perceived?

The Minister referred to statistics gathered in the past five years, which have, fortunately, been among the calmer in Northern Ireland's history. What would the story be if we went back 15 or 20 years? Is it not possible that we would find instances of attempting to pervert the course of justice by influencing a prosecutor or other people in the criminal justice system that would merit a sentence in excess of five years?

The Minister has answered none of these questions. When I asked him about cases of attempting to pervert the course of justice in which a sentence of five years or more would be appropriate, he said that they could probably still be liable to the common law offence anyway. Does that not show the futility and nonsense of re-enacting that which is already criminal?

The Minister told us that the common law can be problematic because it is open to interpretation. The words

"with the intention of perverting the course of justice"

are contained in clause 7. If there is a problem with the interpretation of the common law offence, there will be a problem with the statutory offence that he seeks to create. If I am wrong, I hope that he will intervene to point out to me why I am wrong. He stays firmly glued to his seat; I suspect that I am not wrong. Worse than that and most frustrating of all, he knows that I am not wrong.

John Spellar (Labour, Warley)

I thought I had indicated at some length—although not as much length as I did on a previous clause—why we believe this is a useful provision. It has the advantages of clarity, ensures compliance with human rights and provides a proper scale of penalty that more accurately reflects the tariff in the courts. That may not satisfy or please the hon. Gentleman, but I do not think that he can say that I have not responded.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am afraid that I can say that because, yet again, the Minister has failed to answer. He was asked: what are the problems, where has the lack of clarity arisen and what in the Bill will change the situation? He has not answered any of those questions. I shall give him one more chance to respond, but it appears that he will not.

In these circumstances, the debate on this clause has been one of the biggest wastes of parliamentary time that I have seen since I came here. The fault for that lies fairly and squarely with the Minister and with his refusal to engage in proper debate with the House. Accordingly, I will press the amendment to a vote.

Clause 8 — Guidance For Criminal Justice Organisations On Human Rights Standards

David Trimble (UUP, Upper Bann)

I beg to move amendment No. 16, in page 4, line 38, at end insert

'contained in binding treaties ratified by the United Kingdom.'.

Under clause 8 the Attorney-General for Northern Ireland is placed under a duty to issue guidance to various criminal justice organisations directing them to exercise their functions in a manner consistent with "international human rights standards", a term that the Bill does not define. Of course, international law covers a multitude of things, and there is a range of international agreements, so various matters could come under that term. There is a sad lack of clarity in this matter.

In a letter to my hon. Friend the Member for North Down (Lady Hermon) the Minister referred to various documents listed in one of the working papers for the criminal justice review. In a revealing phrase, he referred to some of those instruments as containing "soft law". That is a term of art used in international law to describe instruments that are not binding but indicate possible practice and ways of proceeding. Soft law arises out of agreements entered into by just some countries, or from bodies meeting to debate and issue what they call "standards" and so on. I thought that it would be desirable in this situation, particularly as we are dealing with criminal law, to apply a basic principle of criminal law, which is that the law and procedures should be clear. The Attorney-General, in coming to draw up guidance, should know precisely which international standards he should have regard to.

The obvious provision is my amendment, which would define international human rights standards by reference to treaties and agreements that are binding on the UK. It would be improper if the Attorney-General were to base his guidance on provisions that were not binding on the UK, and it would mean giving him discretion to introduce into practice instruments that were not binding on the UK or, therefore, on the bodies concerned. As the guidance will emanate from the Attorney-General, the bodies might feel that they were obliged to follow it, but if it concerned an instrument that was not binding on them, they ought not to be put under that impression.

In the background is the fact that we should bear in mind: if there is devolution, the Attorney-General will be appointed by the First Minister and Deputy First Minister. I repeat what I said earlier: one can be certain that there would be political considerations behind such an appointment, and those considerations might feed into the view about what instruments should be, if not binding, issued as directions to organisations performing criminal justice functions. The object of the Bill ought to be to try to insulate the criminal justice system from political influence, but again and again the Government are removing safeguards and opening the door to political influence, allowing it to seep into the administration of justice.

I have some idea as to what lies behind this part of the Bill, and it is something very bad indeed. However, I have tabled an amendment that would cure the problem. I would like to think that the Minister would treat the matter on its merits, but in light of the way that the debate has been going, we have no expectation of that.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am afraid that, as far as poverty of expectation is concerned, I am very much with the right hon. Member for Upper Bann (Mr. Trimble). I agree with his amendment; it is certainly possessed of a certain elegant simplicity. He has identified the difficulty—the lack of specification about what is meant by the term

"international human rights standards relevant to the criminal justice system."

I commend him for having come up with a solution that makes it clear that the ratification of international treaties is of central importance, because that, quite properly, would mean that the House would be the arbiter on which matters were to be considered.

I cannot for the life of me imagine why the Government would not want to accept the amendment. I cannot see how they could view it as anything other than an improvement to the Bill. The right hon. Gentleman has done tonight, as he did in Committee, his duty as a parliamentarian in seeking to improve legislation, and it is quite depressing that we will again, I suspect, be unsuccessful.

John Spellar (Labour, Warley)

I suspect that part of the reason why the right hon. Member for Upper Bann (Mr. Trimble) has tabled the amendment is to gain further clarity on the standards that the Government intend should be included in the guidance. I hope to be able to provide that clarity.

As an aside, let me say how interested I was in the contribution of the hon. Member for Orkney and Shetland (Mr. Carmichael) on behalf of the Liberal Democrats. We note his downgrading of non-binding treaties and will pay careful attention to statements made by his Front-Bench colleagues when they try to castigate the Government for not following some non-binding treaties. We shall treasure his comments.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister has perhaps been stung by the criticism relating to this amendment and previous ones—his body language is somewhat defensive and telling. He is trying to misrepresent my position. As he well knows, there is a world of difference between treaties that are regarded as non-binding in relation to Government actions and the duties placed on individual officers of state. The Minister knows it, and he is mischievous to suggest otherwise.

John Spellar (Labour, Warley)

Oh yes, I know the difference between binding and non-binding treaties. I am not sure that his colleagues always do. We shall remember what he said when speaking on behalf of the Liberal Democrats today when his Front-Bench colleagues try to present non-binding treaties as being of equal validity to others.

Our intention in the present case is quite different. We have referred to international human rights to provide some clarity about what we expect the Attorney-General for Northern Ireland to refer to in his guidance. We do not wish to pre-empt his considered advice, but he is likely to refer to the sort of international human rights instruments listed in the criminal justice review research report No. 14, which listed several binding treaties and several non-binding treaties, which, as the right hon. Member for Upper Bann rightly said, are also described as "soft law". The report listed 16 such standards, but there is no reason so suppose that the list is definitive. It includes the European convention on human rights, the conventions on the rights of the child, the European convention on the compensation of victims of violent crimes and the international covenant on civil and political rights.

To refer only to human rights standards contained in binding treaties ratified by the United Kingdom would mean that the guidance could not include information on important non-binding treaties, such as the UN rules for the protection of juveniles deprived of their liberty and basic principles on the role of lawyers. It is important to state that the Attorney-General's guidance on the application of standards contained in non-binding conventions and treaties will make it clear that those standards are non-binding. However, not referring to them at all would misrepresent the standards to which the UK Government have signed up, and thereby prevent the draftsmen from ensuring that the guidance is as comprehensive as possible. That gives the right degree of scope to the Attorney-General. It makes clear the difference between the two standards.

I recollect that although the UK has been a party to some international conventions, we have indicated that we would not accept certain parts of them, but did not want to interrupt general progress—for example, the prohibition on the recruitment of children into the military. Such recruitment is a problem in several African countries and elsewhere, but that is entirely different from youngsters joining the UK military with informed consent and the support of their parents. We do not want to obstruct progress elsewhere in the world, but at the same time we have reservations about the prohibition. The arrangements that we have made will enable the Attorney-General to take account of the provisions of international conventions and any reservations expressed by the UK Government, and to indicate which terms are binding and which are not.

We believe that that covers everything, but I do understand what the right hon. Member for Upper Bann was trying to identify. I hope, although with little expectation of success, that I have been able to explain the Government's position and convince him that the amendment is unnecessary.

David Trimble (UUP, Upper Bann)

The Minister has effortlessly managed to get down to the level of our expectation. What he has said is simply not relevant. He said what the Government expect, and confidently stated that the guidance will make clear what is non-binding and that it will take account of UK Government reservations. How on earth does he know that? When the measure comes into operation, it will not be the Government who give guidance to the Attorney-General; the Attorney-General will be the appointee and the creature of the First Minister and the Deputy First Minister. How does the right hon. Gentleman know that the guidance will take the form that he describes? Obviously, he does not. It is quite fatuous to talk about what the guidance will do in such circumstances. That is why we are not happy with the provision.

It is ironic that the Minister referred to various conventions prohibiting the abuse of children through their involvement in military matters, when that is a huge problem in Northern Ireland. There is massive abuse of children, especially those aged between nine and 14, and particularly of young males. Their recruitment to paramilitary organisations is a form of child abuse to which the Government turn a blind eye. It is ironic that the Minister refers to that matter, but turns a blind eye to the huge problem in Northern Ireland.

John Spellar (Labour, Warley)

rose—

David Trimble (UUP, Upper Bann)

If the Minister wants to speak, let him do so.

John Spellar (Labour, Warley)

We do not turn a blind eye. As the right hon. Gentleman knows, there was an attempt by some countries to define Northern Ireland as one of those troubled countries—quite separate from any question of recruitment of child soldiers. That would have converted the problem in Northern Ireland from one of law and order to one of a recognised zone of conflict. As he well knows, the British Government opposed that effort successfully. The right hon. Gentleman is being a little disingenuous.

David Trimble (UUP, Upper Bann)

The Minister, quite predictably, misses the point. I am not referring to the matters to which he referred. I am referring to what happens in Northern Ireland, where the paramilitary organisations are, to use his phrase, recruiting child soldiers, left, right and centre, and the Government of whom he is part turn a blind eye—they do nothing about it.

By doing nothing about it, they tacitly come as close to encouraging it as could be. That is why I find it particularly nauseating that the Minister, a member of the Government, turns a blind eye to the problem, and then cites it in a slightly different context with approval. It is quite revolting to see that happen.

I had no expectation that the Minister would take a sensible line. He has resolutely avoided taking a sensible line throughout the evening, but because of the lateness of the hour and the desire of Members to get on, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 — Court Security

John Spellar (Labour, Warley)

I beg to move amendment No. 2, in page 18, line 3, at end insert—

'(aa) a statutory officer (within the meaning of section 70 of the Judicature (Northern Ireland) Act 1978) who is exercising functions in the building,'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to take Government amendment No. 3.

John Spellar (Labour, Warley)

Schedule 3 as presently drafted allows judges, magistrates, coroners, social security commissioners and High Court masters responsible for taxing and for enforcement of judgements to give directions to court security officers, by virtue of the fact that those office holders are defined as "persons in authority" in paragraph 3(6). However, there are other masters of the High Court, for example in bankruptcy, who are not designated as "persons in authority". They would therefore not be able to give directions to court security officers, but might need to do so, for example to direct that a person be removed from a court. Accordingly, amendments Nos. 2 and 3 ensure that all masters and district judges are able to give directions to court security officers.

Amendment agreed to.

Amendment made: No. 3, in page 18, line 4, leave out', (c), (d) or (e)' and insert 'or (c)'.—[Mr. Spellar.]

Order for Third Reading read.

John Spellar (Labour, Warley)

I beg to move, That the Bill be now read the Third time.

The criminal justice system in Northern Ireland is undergoing a journey of reform that was started by the criminal justice review, and today's debates represent another important step in that journey. The post-review criminal justice environment in Northern Ireland is characterised by a commitment to reform and modernisation. That can be seen not only in the Bill, but in the range of initiatives being taken elsewhere.

The new Public Prosecution Service has two pilots up and running—one in Belfast and one in Fermanagh and Tyrone. The Public Prosecution Service will build on the work of the Department of Public Prosecutions to maintain the highest levels of objectivity, professionalism and consistency in prosecution decisions. Under the remit of the Youth Justice Agency, youth conferencing services have been introduced, which are based on the principles of restorative and reparative justice. Youth conferencing will help young offenders take responsibility for their actions and will allow victims a role in that process. At a local level, the community safety unit is working through community safety partnerships to devise and implement local plans for community safety. That includes programmes targeting burglaries and safety for the elderly.

Given how far we have come since the criminal justice review was published in March 2000, we can be proud of the progress that has been made, but that should not breed complacency. I hope the fact that the Government will bring forward measures to tackle antisocial behaviour and hate crime, as we discussed earlier, will reassure hon. Members that we remain committed to providing the responsive, effective and efficient criminal justice system that the people of Northern Ireland deserve and need.

When I speak of the effectiveness of the criminal justice system, I do not only mean that it should have coherent and workable procedures. I refer also to ensuring confidence in the system and providing proper levels of accountability. In particular, as the history of Northern Ireland has shown, to achieve effectiveness the criminal justice system must command the acceptance of all parts of society, from whatever tradition or background. The challenges of the past 35 years have created a degree of professional dedication that is, as was rightly said during the debate, the envy of the world. Moreover, the criminal justice system operates in partnership in a way that would be difficult anywhere else. I believe that those factors lie at the heart of the work to improve and develop the system for the benefit of the community as a whole.

We are fostering a culture of continual improvement. Our goal is to develop a system that serves the people of Northern Ireland with fairness and efficiency. The Government recognise that the Justice (Northern Ireland) Act 2002 is not the final word. Although the provisions before us stand on their own merits, the Bill builds on the work that has already begun to enhance the openness, transparency and accountability of the criminal justice system. We addressed a number of important issues in Committee and some today.

The Bill is built on a number of fundamental beliefs, which I am sure we share with hon. Members. The independence of the judiciary is a cornerstone of our constitution and one of the principal guarantees of our liberty. It is in turn underpinned by the professional security that judges enjoy. We believe that the provisions set out in the Bill reflect and build on that basic position.

The issue of securing a reflective judiciary was debated extensively. There was concern that doing so would somehow compromise the principle of appointment on merit. We do not believe that that is the case. Merit and reflectiveness are not mutually exclusive. The 2002 Act makes it clear that individual appointments must be made

"solely on the basis of merit".

That said, there may be equal-opportunity issues that have implications for the judicial appointments process. If the Judicial Appointments Commission is successful in addressing these issues, it follows that it should be possible to achieve a more reflective judiciary without compromising the merit principle.

On senior judicial appointments, we had a debate about the Prime Minister's discretion when making a recommendation to Her Majesty the Queen. Hon. Members raised concerns on both sides of the argument—that the Prime Minister would have too much discretion, and that he would not have enough. We believe that we have got the balance about right.

I consider the Bill's provisions for promoting the human rights culture within the Northern Ireland criminal justice system to be another step in the right direction, rather than an innovation.

The Attorney-General's guidance on international human rights standards will provide an invaluable tool for the various criminal justice authorities to which it applies.

We had an extensive debate on the duty of the Director of Public Prosecutions to refer cases of suspected police malpractice to the police ombudsman. Some hon. Members were concerned that the Government are stepping away from what the review intended, but in fact we are implementing recommendation 21, which states:

"We recommend that a duty be placed on the prosecutor to ensure any allegations of malpractice by the police are fully investigated."

Besides those clauses, the Bill makes a number of important improvements to bail provisions and other issues that are, perhaps, less challenging. However, we should not lose sight of those improvements: new rules for court security officers; providing barristers with the right to enter contracts; the power to transfer prisoners for the maintenance of good order; extending the protection afforded to prison staff against paramilitary intelligence-gathering; and providing for arrest without warrant for driving while disqualified. Those improvements did not exercise hon. Members much, but they are important, and as such they are welcome, not only in this House, but in the criminal justice community in Northern Ireland and throughout the law-abiding community.

The principle of recommendations from the First Minister and Deputy First Minister for judicial appointments caused some concern, and it raises the question of prime ministerial discretion. The purpose of the Prime Minister's discretion is not to allow him to disregard either the recommendation, if one is forthcoming, of the First Minister and Deputy First Minister, or the Lord Chief Justice's advice. It is difficult to conceive of his not basing his recommendation to Her Majesty the Queen on those recommendations to him. It would be wrong to deprive him of all discretion, however, and that was not envisaged in the review:

"responsibility . . . should lie with the Prime Minister",

who should make recommendations

"on the basis of recommendations from the First Minister and Deputy First Minister."

We do not legislate for failure, but we should allow for an unhappy although not impossible situation in which no recommendation were forthcoming from the First Minister and Deputy First Minister, for example. It is extremely difficult to anticipate every circumstance and prescribe a process for it in primary legislation.

I encourage hon. Members to agree that the Bill provides the Northern Ireland criminal justice system with a further improvement on already impressive proposals for reform. The process does not stop here, however, and the criminal justice system must continue to evolve in order to meet the changing needs of society. We will continue to safeguard the independence of the judiciary and the prosecution, and will continue to ensure that the system commands the respect of the vast majority of people in Northern Ireland.

Desmond Swayne (Conservative, New Forest West)

I thank the Minister and all the members of the Committee. We debated the Bill extensively, and I extend my thanks to the Clerks, who were helpful during those proceedings.

We voted against the Bill on Second Reading, since when it has got worse rather than better. We do not oppose the principle of the devolution of criminal justice, but it is premature to proceed when there is no Assembly or functioning Executive. The expedient of devolving the criminal justice system will be achieved by transferring the roles of the First Minister and Deputy First Minister to the Lord Chancellor. We know that the Government have plans, which are unclear, for the Lord Chancellor's office, and to proceed with that double uncertainty strikes me as monstrous.

The Bill is a missed opportunity. It turns the unobjectionable principle of a judiciary that reflects the community into a threat to the principle of appointment on merit.

The Minister said that that was not so, but we believe that the Bill turns a legitimate expectation into a duty. That compromises the very important principle to which the Minister himself drew attention. When the Lord Chief Justice of Northern Ireland, Lord Hutton, spoke during the Second Reading of the 2002 Act to which we have so often referred today, he said:

"It is clearly vital that a judge should be appointed on merit alone and that appointments should not be influenced by political considerations. That is all the more important in the highly charged political atmosphere of Northern Ireland. If judges are not appointed on merit the administration of justice will suffer, as will the public confidence in that administration."—[Official Report, House of Lords, 3 May 2002; Vol. 634, c. 969.]

As we explained earlier, the Bill will give rise to instances whereby affirmative action will step beyond the proper bounds and compromise that principle of appointment on merit.

The Bill compromises the principle of the independence of the judiciary by removing from the Lord Chief Justice his veto over the suspension or sacking of a judge. That veto was given to the Lord Chief Justice only 18 months ago in the 2002 Act. Now the Minister is taking it away—not on the basis of any experience of the system having bedded in and been found wanting, or of some new logic, but merely on the entirely spurious grounds that a judge can be removed only on the basis of the findings of a tribunal. That is already the case. It is a necessary condition, but it might not be a sufficient one.

Why was the veto given in the first place? The Minister has been silent on that—he has been unable to explain it. We believe that the provisions of the Bill are redolent of some special pleading to which we have not been privy during proceedings in Committee or on Report. The removal of the veto is an unwelcome addition to the Bill that would alone be sufficient grounds for me to ask my hon. Friends to oppose it.

The Minister said that the Bill does several desirable things, and he listed them. He is right. The prosecution's right of appeal against magistrates granting bail is desirable. The power of the transfer of prisoners for the maintenance of good order is necessary, too, although that is because of the entirely regrettable abandonment of the integrated regime at Maghaberry prison. Making driving while disqualified an arrestable offence is of course desirable.

But what else might the Bill have done against a whole range of antisocial behaviours? The Minister made the grotesque announcement that in the next few weeks we can expect him to bring in antisocial behaviour orders by statutory instrument—that is, on the "take it or leave it" basis of a two-and-a-half hour debate Upstairs. The complexity of the orders, the experience of trying to implement them on the mainland and the different circumstances in Northern Ireland cry out for primary legislation. The Bill was the ideal opportunity, but that chance has been missed. It has been rushed through—and for what? What is so urgent as to require that haste and that missed opportunity?

Although the Bill does some desirable things, it muddles others. In seeking to reinforce the seriousness of the offence of perverting the course of justice, it creates a statutory offence with a much lower penalty, which achieves an effect that is precisely the reverse of what was intended. It clouds the human rights advice that can inform the criminal justice system with nebulous concepts of infinite elasticity, which are not subject to our scrutiny and agreement, and it provides unwelcome intrusions into the proper role of the public prosecutor.

In summary, the Bill reeks of concessions to special pleading. It is without any powerful motor, yet it stands to compromise the independence of the judiciary and to undermine confidence in it. I urge all hon. Members to oppose it tonight.

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

It is my intention to vote with the Government on the Bill. I have voted with them on it throughout, for a number of reasons. I am dissatisfied with the issues that I identified earlier, on which there has not been the kind of approach that might have been of benefit further down the road. However, when we look at the context of the Bill, we see that it is the second in two years, and if we include the three policing Bills, it is the fifth broadly to relate to justice in as many years. One can only accept that advances have been made, that enormous steps have been taken and that improvement is distinctly possible.

Of course there will be differences of opinion. There will always be a debate about the role of the judiciary vis-à-vis the political process. That debate has been going on since both began and it will continue long after this Bill is history. It is part of the body politic and the act of devising the way in which we live together and make laws for ourselves, which we then hand over to others to implement on our behalf. That is what I call the privilege of those involved in the judiciary. It is also a privilege for those involved in the political process to grapple with the problems involved, as we have done on the Floor of the House and in Committee, on this Bill and on others relating to criminal justice.

However we measure it, this Bill represents a substantial advance, but I want to put it into a broader context. The essence of good justice is that it is available to people. In reality, as the right hon. Member for Upper Bann (Mr. Trimble) suggested earlier, there are parts of Northern Ireland in which justice is not available, and in which justice of this nature is not an option for people in the community. The justice that is available to them has not been legislated for; it is delivered by a baseball bat, a gun, a brick or whatever implement happens to be at hand at the time.

The challenge for us is not just to draft legislation but to ensure that good law is available to the entire community, to afford it the protection of the law that we have been drafting tonight and to protect people from the barbarity of the approach that they have to live with and under. It is essential that we create a context in which these elements of legislation—however much we dispute their detail—are not just for the few lucky people who happen to live in certain areas where it will be available to them. It is the responsibility of the political process, not that of the judiciary or the police, to ensure that every single person in the north of Ireland has access to the justice in this legislation and to the protection that that affords each and every individual. Therein lie the difficulties and the problems that we face.

As politicians, we could—and, in any forum, we often do—get ourselves het up over some of the detail. We have our own pet theories as to who should have what power and how it should be exercised. Ultimately, however, we have to ensure that we do what we can to ensure that every single person in the north of Ireland can avail himself or herself of this law.

I stress this point, which I cannot stress often or strongly enough: in my constituency, I see people being treated in a way that is abhorrent and blood curdling but they cannot go to the police as the consequences would be even worse. To whom do they turn? What law protects those people in their own homes, townlands and villages? While it is good and right that the changes should be made in the criminal justice process, in policing and in the broad body of law, until we grapple with that question and unless we bring law to the doorstep of people who need it most, there will remain a touch of the academic about that.

I see these things on a weekly basis in my constituency. The awful thing is that there is nothing that I can do about them because when a paramilitary group has a stranglehold on a community, it determines how people approach the way they have been treated. Perhaps we should have a look at the responsibility not just of the judiciary, but of the political process. There is a remarkable responsibility on us to ensure that, when we draft law, we also make it available to the most vulnerable in our society.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

There is little in the remarks of the hon. Member for Newry and Armagh (Mr. Mallon) that we could take exception to, but, having listened to him with care, I have to say that I have some difficulty in marrying his rhetoric with the rather prosaic nature of the widely divergent provisions in the Bill.

I join the hon. Member for New Forest, West (Mr. Swayne) in expressing my gratitude, and that of my party, for the efforts of those who made possible what were good Committee proceedings in many ways, in particular the Clerks and the other Officers of the House. I also thank the other members of the Committee, who dealt very well and responsibly with the issues. There was a remarkable lack of filibustering, as is reflected in the fact that we managed to get through the business without reaching the end of the final sitting.

In that regard, if it is not too much of an embarrassment or a blight on his career, I congratulate the hon. Member for Gedling (Vernon Coaker), the Government Whip, who deals a lot with Northern Ireland business and does much to facilitate its smooth running. He is always conscientious in dealing with all the parties that are involved in Northern Ireland business, and his time and trouble are much appreciated. He is an example for a Whip of what a Minister might be. I say no more than that.

I also thank my hon. Friend the Member for Montgomeryshire (Lembit Öpik), who undertook the duties that I had intended to undertake on Report. I have spent the day trying to get here from my constituency; since getting here, I have done little other than regret my success. It is a cliché to say that it is better to travel in hope than to arrive, but when I say that today it is absolutely heartfelt.

The Liberal Democrats indicated on Second Reading that we would support the Government. I can indicate that we will again support the Government on Third Reading, but that is despite rather than because of the Government's efforts since Second Reading. When the time comes to go through the Lobby, I shall look for a quiet moment, take a deep breath, pinch my nose and run through it. I shall not support the Government with any great enthusiasm. I shall support them because much in this Bill is important and because the Liberal Democrats are generally supportive of the creation of an independent judicial appointments commission. We see the importance of the provisions on bail, transfer of prisoners, arrest without warrant in relation to disqualified driving and that great new Labour clarion call, the right of barristers to enter into contracts for the provision of their services.

So much in this Bill could have been done differently and better. The little improvement that had been made in the other place has sadly been reversed. Not only have we not progressed, but in some respects we have gone backwards. We spend a lot of time Upstairs regretting that so much Northern Ireland business is dealt with through secondary legislation and that so much goes through without the proper opportunity for amendment or even full discussion. To that extent, I must agree with the hon. Member for New Forest, West that this Bill could have been much better. There could have been so much more to it and what is in the Bill could yet be so much better. It is merely commitment to the principles behind the important clauses, and general acceptance of the less important clauses, that will take my right hon. and hon. Friends through the Lobby with the Government tonight.

David Trimble (UUP, Upper Bann)

I associate myself with the comments of the hon. Members for Orkney and Shetland (Mr. Carmichael) and for New Forest, West (Mr. Swayne) on the conduct of proceedings in Committee and with the compliments that they paid to the Clerks and the Whip. With regard to the Minister, the most optimistic thing that I can say is that I hope that things will get better, as I do not think that they could possibly proceed in the other direction. However, that is either-way.

We are really considering two Bills—one containing a number of controversial provisions that have been introduced for party political reasons and the other containing a number of modest provisions that are improvements. One can distinguish between the two because we have this evening debated amendments to the bad part and no amendments other than the Government's tidying-up amendment have been tabled to the sensible part.

With regard to the sensible part of the Bill, I agree entirely with the comments of the hon. Member for New Forest, West: this legislative vehicle having been available, why did the Government not make good use of it? There were plenty of things that could have been done. I will not repeat what has been said, but it is a pity that we have not seen more substance in the sensible part of the Bill.

With regard to the other part of the Bill, I do not want to repeat what has been said, but there are some salient points to emphasise. As I made clear on Second Reading, I have come to the view that the very concept of a judicial appointments commission is bad. The same negative effects might not be seen in Scotland or England and Wales, but it would certainly be bad in Northern Ireland because it opens the door to political influence. Ironically, these provisions remove the important safeguard that existed under the Government of Ireland Act 1920, which established devolution and operated in Northern Ireland from 1921 through to 1971, whereby the most senior judicial appointments were reserved to the Lord Chancellor, and the devolved body had no power with regard to them.

That was a very important safeguard for the independence of the judiciary, but it has been swept away. We now have an appointments commission that will constitute a channel via which political influences will start to seep into the administration of justice in Northern Ireland.

The same criticism can be made again and again. All the amendments that the Minister has made to the bad part of the Bill share a tendency to open the door to political influence in the context of appointments to, and operation of, the judiciary. That is why we have opposed those provisions and will continue to oppose them now. I could say more, but we all know where the provisions come from. The Government would not have included them of their own volition. They result from party political pressure and a sordid political fix. They are not in the Bill on their merits, for they have no merits. That was demonstrated abundantly when the Minister found himself flannelling at the Dispatch Box, unable to respond coherently to the points that were being made to him.

The hon. Member for Newry and Armagh (Mr. Mallon) reminded us that this was the fifth occasion on which we had considered legislation dealing with justice matters—in the broad sense—during the last few years. It will not be the last. One of the things that lie behind the Bill, and indeed the criminal justice review, is the hope that justice matters can be devolved to the Northern Ireland Assembly. I made clear some time ago my party's belief that there was not a sufficient basis on which we could contemplate devolution of justice matters. I make it clear now that, should such matters arise in future, if my party and I have any say in the matter, we shall insist on significant changes to this and other legislation to ensure that the independence of the judiciary is absolutely clear, that the merit principle in appointments is absolutely clear with no question of political influence and that the criminal law is absolutely clear about the rights of those who appear before the courts, particularly those confronted by some of the more novel procedures in the Bill, being adequately safeguarded.

If these matters are devolved, we shall find ourselves here again. I hope that on that occasion we shall see a better result.

Andrew Hunter (Independent Conservative, Basingstoke)

I endorse every word said by the right hon. Member for Upper Bann (Mr. Trimble) and I understand that that is also the position of the Democratic Unionists.

As the right hon. Gentleman says, this is a Bill of two parts. The second part, consisting of clauses 8 to 17, is largely unobjectionable. It is uncontroversial and introduces a number of measures that are broadly welcome, and with which we have no quarrel. It is the first seven clauses that inject a strong element of controversy.

In his winding-up speech, the Minister urged us to see the Bill as a whole and the first seven clauses in particular as a further landmark in the evolution of a judicial system in Northern Ireland. He spoke of the need to reflect a changing society. That does not convince. Cynics—among whom I count myself—will say that the first seven clauses serve a political agenda rather than modernising a judicial system. That agenda emerged, to a considerable extent, from promises and pledges made to various parties at Hillsborough in March 2003.

The Minister said tonight, as he said in Committee and as Government spokesmen said in another place, that it was important for the Northern Ireland judicial system to command public confidence.

Frankly, the Government have, by their own criterion of judgment, failed dismally, because the Bill does not command the confidence of the elected representatives of the majority of Northern Ireland. Of course, there is nothing new in that state of affairs. It is another landmark in a process that we have witnessed time and again since 1985.

Not only does the Bill not command confidence but it undermines existing confidence. There are a number of reasons why it does so. One is that it contains an unacceptable move away from the sound principle of equality of opportunity and embraces the discredited concept of equality of outcome. It also enshrines the concept of being "reflective of the community". I shall not repeat the arguments at this stage because I outlined them in the debate but, in respect of both appointments to the commission and of judicial appointments themselves, the Bill is fundamentally flawed. There should be no room for any consideration other than merit when it comes to either set of appointments.

We look forward to the day in Northern Ireland when religious affiliation is irrelevant. The Bill yet again institutionalises sectarianism. Just as apartheid in South Africa institutionalised racism, the present Government's policies in Northern Ireland institutionalise sectarianism and that is unacceptable.

The Bill decreases the power of the Director of Public Prosecutions, in absolute contradiction of the recommendations of the criminal justice review. It advances the powers of the ombudsman at his expense, which is unacceptable. One of the remarkable things about the Bill is the way in which the Government are cherry-picking from the criminal justice review when and as that review furthers their preconceived political agenda, in particular when it meets and coincides with the demands of the SDLP.

The Bill devolves the justice system before devolved government has been re-established. We note also the Minister's persistent refusal to give an unambiguous yes or no answer on whether the Government envisage Sinn Fein being "reflected" in the composition of the commission. In all, the Bill marks a further step in the politicisation of Northern Ireland's judicial system. That is why we will vote against it.