§ Amendments made: No. 5, in page 77, line 8, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".
§ No. 6, in page 77, line 11, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".—[Mr. Browne.]
§ Mr. Browne
I beg to move amendment No. 105, in page 77, line 23, leave out "expenses" and insert "salaries".
§ Mr. Browne
Post devolution of criminal justice, determination of judicial salaries is to remain an excepted matter, but the remuneration will be paid from the Northern Ireland Consolidated Fund rather than the United Kingdom Consolidated Fund. Paragraph 10 of the schedule amends section 168(2) of the Magistrates' Courts Act (Northern Ireland) 1964, which provides for the payment of salaries to resident magistrates. The original drafting of the paragraph referred to the payment of "expenses" being transferred from the United Kingdom Consolidated Fund to the Northern Ireland Consolidated Fund. The amendment, which is technical, reflects the fact that the payment of salaries will be transferred by the Bill.
Amendment No. 155, which is also technical, provides for removal of the revocation of section 75(1) of the Judicature (Northern Ireland) Act 1978, which deals with the appointment of the official solicitor. Post devolution, it is intended that the office of official solicitor will be removed from the list of statutory officers in schedule 3 to the 1978 Act, as the status of the statutory officer will be confined to posts of an inherently judicial character. The official solicitor post is not of that character.
The removal will be achieved by subordinate legislation, which is the point of the amendment. In anticipation of that change. It is necessary to retain section 75(1) of the 1978 Act, which provides for the official solicitor's appointment by the Lord Chancellor after consultation with the Lord Chief Justice. As drafted, the Bill did not achieve that objective, and this technical amendment is designed to put that right. That is what it achieves and I commend it to the House.
Amendment agreed to.
§ Mr. Browne
I beg to move amendment No. 106, in page 82, line 23, leave out "subsections (2) and (11)" and insert "subsection (2)".
Mr. Deputy Speaker
With this it will be convenient to discuss the following: Government amendments Nos. 107 to 109.
66 Amendment No. 33, in clause 10, page 8, line 6, leave out "Lord Chancellor" and insert—'First Minister and deputy First Minister acting jointly'.
Amendment No. 34, in page 8, line 9, leave out "Lord Chancellor" and insert "Lord Chief Justice".
Amendment No. 31, in page 8, line 9, leave out from "Chancellor" to end of line 12.
Amendment No. 32, in page 8, line 13, leave out subsection (3).
Amendment No. 35, in page 8, line 17, leave out "Lord Chancellor" and insert—'First Minister and deputy First Minister acting jointly'.
Amendment No. 36, in page 8, line 18, at end insert—'() No order under this section may be made without the agreement of the Lord Chief Justice.'.
Amendment No. 74. in page 8, line 27, after "body", insert "or".
Amendment No. 71, in page 8, line 30, leave out from "creditors" to end of line 31.
Amendment No. 43, in page 8, leave out lines 32 and 33.
Amendment No. 72, in page 8, line 34, leave out—'Prescribed" means Prescribed in the Order'and insert—'Notwithstanding subsections (4) and (5), a person shall be disqualified from appointment as a lay magistrate if he has at any time been convicted in Northern Ireland or elsewhere of a criminal offence'.
Amendment No. 37, in page 8, line 41, leave out "Lord Chancellor" and insert "Lord Chief Justice".
Amendment No. 73, in page 8, line 41, at end insert—'10A The Lord Chancellor must remove any Lay Magistrate from Office if they have at any time been convicted in Northern Ireland or elsewhere of a criminal offence.'.
Amendment No. 38, in page 8, line 42, leave out "Lord Chancellor" and insert—'First Minister and deputy First Minister acting jointly'.
Amendment No. 39, in page 8, line 42, leave out "he" and insert "they".
Amendment No. 40, in page 8, line 43, at end insert—'out of money appropriated by Act of the Assembly'.
Government amendments Nos. 111 to 118.
Amendment No. 41, in schedule 4, page 83, line 43, leave out "Lord Chancellor" and insert "Lord Chief Justice".
Government amendment No. 119.
Amendment No. 42, in page 84, line 5, leave out "Lord Chancellor" and insert "Lord Chief Justice".
Government amendments Nos. 120 to 122, 124, 123, 125 to 130 and 156 to 163.
§ Mr. Browne
The amendments are technical and concern the role and functions of lay magistrates. The criminal justice review recognised the role lay people could play in the justice process. It did not recommend major changes, but proposed removing residual criminal justice functions from justices of the peace, while consolidating the role of the new category of lay magistrates. Of course, as hon. Members know, the position of lay magistracy in Northern Ireland is rather different from that in England and Wales. England and 67 Wales have a small number of stipendiary magistrates, but professional resident magistrates in Northern Ireland are the norm rather than the exception. Lay people continue to have a role in the system, however, notably by participating in youth courts.
Amendments Nos. 106 and 107 reorder the Bill to make it clear that when responsibility for paying allowances to lay magistrates transfers to the First Minister and Deputy First Minister under devolution, they must act jointly.
Amendments Nos. 108 and 109, which are technical and consequential to an amendment made in Committee, require that order-making powers relating to community safety be subject to affirmative resolution. As a result, on devolution, an order made by the First Minister and Deputy First Minister concerning eligibility to be a lay a magistrate must be subject to affirmative resolution in the Assembly. Order-making powers relating to community safety will remain subject to scrutiny in Westminster.
Amendment No. 111 allows the Lord Chief Justice, lord justices of appeal, High Court judges and county court judges to exercise all the functions of a lay magistrate. Currently, all those judicial offices are ex officio justices of the peace, and as such they can exercise all the functions attaching to those offices. Given that the majority of criminal justice functions will transfer from JPs to lay magistrates, we want to ensure that the judicial offices that I have mentioned can exercise the functions that will be transferred to lay magistrates.
Amendment No. 112 reflects the review's recognition of the important role that lay persons fulfil in the justice system. The new office of lay magistrate will assume most of the functions currently performed by justices of the peace and members of the juvenile court lay panel, and will be a listed judicial office as defined in schedule 1 to the Bill. The amendment is technical and defines the range and nature of functions to be transferred from justices of the peace to the new office of lay magistrate.
In the main, those functions, which are currently performed by justices of the peace, relate to hearing complaints and first remands in special courts, with a view to issuing warrants and summonses. The amendment also identifies a number of related and ancillary powers arising from those functions. Schedule 4, which contains amendments consequential on the clauses relating to lay magistrates, deals with those functions in more specific terms. I should point out that lay magistrates will also perform certain other functions currently undertaken by lay panellists in the youth and family proceedings courts. They are of course addressed by clause 12.
Amendment No. 163 is consequential on amendment No. 112. It will amend clause 89 and include the Lord Chancellor's order-making power under clause 11(2)(b), thereby ensuring that it is subject to scrutiny by both Houses.
I have been asked to address amendment No. 123 in particular. The definition of a court of record in the relevant section is used for the purpose of conferring a power to bind over. Magistrates courts already have specific power to bind over by virtue of the Magistrates' Courts (Northern Ireland) Order 1981, so there is no need 68 for the definition in schedule 4 to include a magistrates court. The provision is unnecessary and would constitute a duplication.
Opposition amendments Nos. 31 to 41—which would transfer powers from the Lord Chancellor to the First Minister, Deputy First Minister or Lord Chief Justice—may be based on a misconception. They were tabled in Committee, and for reasons that I shall come to shortly, I am slightly disappointed to see them again. I gave a lengthy explanation in Committee, on being asked to do so, of how the Bill's provisions are intended to work before and after devolution.
Clause 10 deals with the position before devolution, when the power will remain with the Lord Chancellor. Post devolution, the same appointment and removal provisions as apply to the lay magistracy will apply to other judicial tiers. At that point, responsibility will transfer from the Lord Chancellor to the First Minister and Deputy First Minister by means of a transfer of functions order under section 86 of the Northern Ireland Act 1998.
On turning to schedule I, hon. Members will notice that the office of lay magistrate is included in the list of judicial offices which, on devolution, are subject to the Judicial Appointments Commission and removal tribunals. For that reason, and in the light of the lengthy explanation that I gave in Committee—the House would not thank me for repeating it—I ask that amendments Nos. 31 to 41 be withdrawn.
Amendments Nos. 41 and 42 would give the Lord Chief Justice an order-making power—which the Bill currently gives the Lord Chancellor—to amend any provision relating to the transfer of functions of the justice of the peace. I am fascinated by the idea of an order-making power exercisable by a judge, and I congratulate the hon. Member for Reigate (Mr. Blunt) on this exciting constitutional innovation, particularly in the light of the need for parliamentary scrutiny of provisions at the highest level. However, I doubt whether the British constitution is quite ready for it.
The review recommended that the criminal justice functions of the justice of the peace be undertaken by the new office of lay magistrate. The Bill accordingly sets out the likely qualification requirements for that post. Amendment No. 43 would remove the Lord Chancellor's discretion in applying those qualifications. The Lord Chancellor has, and will continue to have, that discretion in making justice of the peace appointments in England and Wales.
If the amendment were accepted, the Lord Chancellor would be unable, for example, to appoint as lay magistrate an otherwise excellent candidate who lived five miles beyond a prescribed distance outside the county court division in question. Although it is important that lay magistrates reside in, or work in, their county court division, it is surely possible for hon. Members to envisage situations in which that might not be the case. Would they want to lose such a person's expertise? Flexibility is a vital part of any eligibility criteria, but the amendment would remove it. I therefore ask that it be withdrawn.
Amendments Nos. 74, 72 and 71 would remove conviction of a prescribed offence as a potential bar to being appointed as a lay magistrate and replace it with conviction of a criminal offence—any criminal offence. 69 In addition, amendment No. 73 includes a removal provision, requiring the Lord Chancellor to remove a lay magistrate if he has been convicted of a criminal offence. It is worth noting that there are currently no absolute bars to people with convictions being appointed as a judge in England and Wales or in Northern Ireland. The review made it clear that lay magistrates should be considered part of the judiciary. It would therefore be contrary to the spirit of the review to impose a higher standard on lay magistrates than on other judicial tiers.
In any case, the amendments are unnecessary. I am not convinced of the case for lifting the potential bar on individuals convicted of a prescribed offence and replacing it with the much wider power to remove anyone guilty of a criminal offence. That would mean that the Lord Chancellor would have to remove from office an otherwise excellent appointee who had been convicted of a minor motoring offence.
§ Lady Hermon
Could the Minister explain why the disqualification of someone who has a criminal conviction from sitting as a lay magistrate is not justified, when someone who is bankrupt or who has made an arrangement with his trustee or creditors would be ineligible to sit as a lay magistrate? That seems extraordinary.
§ Mr. Browne
The hon. Lady will see from the terms of the clause that all those situations would provide reasons to remove a magistrate, but would not require his removal. The earlier part of my argument suggested the need for flexibility, not the imposition of an absolute bar. I do not accept amendments Nos. 71 to 74 because they would mean that an otherwise excellent appointee who had been convicted of a minor motoring offence would have to be removed from office. That would not be in the best interests of the administration of justice. I do not encourage magistrates or judges—or anybody else—to collect minor road traffic offence convictions, but if they were to acquire one it would not be an appropriate reason to remove them from office. That includes the offence of careless driving, the mens rea for which is carelessness, not deliberate action.
§ Lady Hermon
I noted the comparative treatment of those of an equivalent status in the rest of the United Kingdom. I obtained the latest copy of the directions for advisory committees on justices of the peace from the Library—it is from July 1991, so it may have been updated—and it makes it clear that in the case of serious offences the Lord Chancellor must be informed immediately. The justice must not sit to adjudicate from the time of arrest to first appearance, and there is an expectation that the justice would resign after any further conviction for a serious offence. We can therefore make a comparative analysis with the position elsewhere.
§ Mr. Browne
The hon. Lady is right, and I have prayed in aid references to jurisdictions other than that of Northern Ireland. She is also right to say that the repeated commission of serious offences should lead to the consideration of the appropriateness and suitability of a person for judicial office, even if only as justice of the peace. However, for the very reasons that the hon. Lady is able to cite documents on the position in England and 70 Wales, we seek to do exactly the same in Northern Ireland. We seek to apply the flexibility of the system in England and Wales to Northern Ireland.
My objection to the removal provision and the potential bar that the hon. Lady seeks is that it would be absolute and apply at the level of a very minor road traffic offence. I argue, with some merit, that that would not be in the best interests of the administration of justice.
§ Mr. Gregory Campbell
We had a similar debate in Committee on the issue of court security officers and whether any offence, perhaps relatively insignificant, should debar a person from employment. Could the Minister confirm that if the amendments were passed they would mean that a person could be debarred from being a lay magistrate but could, for example, be in charge of education in Northern Ireland?
§ Mr. Browne
The hon. Gentleman seeks to widen the debate, which is not about education or the structure of the Executive in Northern Ireland. My points are relevant to the Bill. I have addressed the issues raised by the amendments and it would not be in order to expand the debate into the qualifications necessary to be the Minister of Education or any other Minister in Northern Ireland. The Bill as drafted provides sufficient powers for the Lord Chancellor to exclude persons who have been convicted of prescribed offences, and I ask that the amendments be withdrawn.
Amendments Nos. 113 to 130 and 156 to 162 are of a technical nature and are consequential on clauses 10 to 12, dealing with justices of the peace and lay magistrates. They make specific textual amendments to a wide range of current legislation to ensure that the existing powers of justices of the peace are transferred either to lay magistrates or to resident magistrates. I do not think that the House would thank me for going into further detail.
We do not of course intend to remove the office of justice of the peace. Justices of the peace will continue in office and perform several important civic and ceremonial functions, which are also included in clause 4.
§ Mr. Blunt
This may not be a debate about education, but it could be, because the issues are technical and difficult. The Minister complains that he might repeat arguments that he made in Committee about which issues devolve and which do not, but those hon. Members not privileged to have served on the Committee would benefit from his instruction and education on the matter. One or two issues are still outstanding in relation to the surviving role of the Lord Chancellor, if any.
I invite the Minister's explanation on one of the areas of complication, which I shall illustrate for him. Schedule 3, paragraph 41(1), would amend section 10 by substituting for the phrase "Lord Chancellor" the wordsFirst Minister and deputy First Minister, acting jointly".That would be the effect of amendments Nos. 33, 34 and 35. I am confused about why those provisions appear in schedule 3, and in the Government's amendments to widen them, but do not appear automatically on the face of the Bill in the provisions under which justice will be devolved. I would be grateful for the Minister's explanation on that point.
The Minister is looking confused, and well he might. My simple question is why those provisions, which relate to earlier parts of the Bill, appear in the schedule when— 71 I presume—they would come into force automatically under the Northern Ireland Act 1998 when the functions are devolved. That was the burden of the Minister's argument in Committee on devolution functions.
The Miniter did not deal with amendments Nos. 31 and 32, which concern the requirement for training courses to be completed before the appointment of lay magistrates. The Bill simply requires those appointed to have given an undertaking that they will attend such a course. I am not sure that is good enough: I think that those appointed should have completed the course, because that would show not just that they were committed to becoming lay magistrates by undertaking the necessary training but that there was no danger of their adopting the role of lay magistrate before being properly trained. The very undertaking of the course will show up any inherent problems.
I do not intend to press the matter to a Division, but I invite the Government to consider it. If the Minister cannot respond now, perhaps he will table amendments in another place if he thinks it appropriate for people to be trained before becoming lay magistrates.
The Minister has, I think, dealt with amendment No. 36, and the issue of funding. I accept his arguments about amendment No.43, although I may wish to discuss them further, but I want him to clarify what he said about amendment No. 37. This is a technical matter. Will the Minister confirm that, following the devolution of justice, it will be the Lord Chief Justice who can remove lay magistrates from office rather than the Lord Chancellor? I understand that to be the case, but I should be grateful for confirmation. Similarly, I should like confirmation, in the context of amendment No. 42, that the Lord Chancellor's role will not remain after the devolution of justice.
This is a difficult and technical area, and I freely admit that I have struggled to understand it precisely. The Minister may feel a trifle impatient at having to explain it again, but if we are to undertake this role in an area in which there appear to be innate contradictions, we as legislators should surely understand the issues before passing the proposals.
§ Lady Hermon
I want to speak to amendments Nos. 74, 71, 72 and 73. I can count, but that is the order in which they appear on the amendment paper.
I am very unhappy with the Minister's response to interventions—especially after hearing him explain Government amendment No. 112, which involves a considerable increase in the powers and functions of lay magistrates. I must say that we had not anticipated such a proposal. The functions concerned includeissuing a warrant or summonsandremanding an accused who has not previously been remanded for the offence".I could go on, but I will not. The point is that we have significantly extended the powers of lay magistrates.
The House has already passed the Police (Northern Ireland) Act 2000. It refers to members of district policing partnerships which, for goodness' sake, have only 72 advisory and consultative powers; they are not involved in judicial or criminal justice functions. It firmly disqualifies a person from independent membership of a district policing partnership if he has at any time been convicted, in Northern Ireland or elsewhere, of an offence and has had passed on him a sentence of imprisonment, whether suspended or not.
The present position is ludicrous. Someone who would have advisory and consultative powers in a DPP cannot become an independent member of a DPP if he has committed a criminal offence. We are told by the Minister, however, that a lay magistrate will not be disqualified for minor criminal offences.
§ Mr. Browne
The offence specified in the 2000 Act is far more serious than the sort of offence that the hon. Lady seeks to incorporate in the Bill. It attracts either a suspended sentence or a prison sentence.
§ Lady Hermon
The Minister makes a good point, in that an offence attracting a sentence of imprisonment, whether suspended or not, is clearly serious; but we are talking about people who are responsible for the administration and carrying out of criminal justice functions.
We have a criminal justice review, whose aims were stated in the Belfast agreement. One of those aims was the production of a criminal justice scheme that hadthe confidence of all parts of the community".How can people have confidence in the new office of lay magistrate when, under clause 10, the Lord Chancellor may make provision about the eligibility for appointment of lay magistrates? Subsection (5) states that "in particular" orders will providethat a person may not be appointed to be a lay magistrateif, for example,a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditorsOrif he has been convicted of a prescribed offence"."Prescribed" is defined as meaningprescribed in an order issued by the Lord Chancellor".
It seems extraordinary that, although the new office of lay magistrate involves dramatically increased powers, there is no equivalent disqualification of those with criminal convictions, although those who go bankrupt will be ineligible. I hope that I am wrong about this, and I hope the Minister will correct me.
§ Mr. Browne
Let me first deal with the points made by the hon. Member for North Down (Lady Hermon).
The purpose of amendment No. 112 is to describe the functions of justices of the peace that are being transferred to lay magistrates. That transfer was always intended. It was recommended by the review, and it is what the Bill seeks to achieve. The amendment's aim is simply to set the functions in statute, rather than to confer more powers on anyone, in terms of judicial functions, than was always intended and made clear in the Bill. These functions have never been set out before.
Both in Committee and today, the hon. Lady and I have discussed her attempts to include in the Bill a number of counsels of perfection in relation to behaviour. 73 Our debates have been energetic, and the hon. Lady has pursued them consistently and appropriately, but I think I have dealt with the issues that she has raised. She seeks to create circumstances in which I think it would be almost impossible to persuade anyone to take on the job of lay magistrate. If people were to be automatically removed from the job after being convicted of careless driving, with all the attendant publicity, it would surely be difficult for them to accept the post.
I accept that certain types of offence should exclude people, and the Bill reflects that. In other circumstances, however, there must be a degree of flexibility. People can accumulate criminal records and convictions for comparatively minor behaviour. We drive motor vehicles; we have a statutory structure, built up over the years, to protect people, but also to generate circumstances in which such matters as insurance can be resolved.
I cannot put the arguments to the hon. Lady better than I have already. I know that they disappoint her, but I do not think that it would work if any minor offence automatically barred people from such a position or removed them from it, particularly when judges higher up the judicial ladder, carrying out functions that were far more important and onerous, could have committed just such an offence.
I turn finally to the points made by the hon. Member for Reigate (Mr. Blunt). The reason for my puzzlement in this very technical area is that I accept that sometimes it takes more than one saying to get the point across. It must have been my fault, but I did not at first understand the hon. Gentleman's point. It was not that I did not know the answer—I did not even know whether I knew the answer as I did not understand the point. However, I think that I have encapsulated his first point in my head and that I understand the answer.
The hon. Gentleman wanted to know why the provisions in paragraph 41 of schedule 3 are not in the body of the Bill. As he rightly identified, the provisions are intended to enable the necessary changes to be made when devolution takes place. They could have been put in the main part of the Bill but if they had been, they would have to be capable of being read in two different ways—pre and post-devolution. Alternatively, they could have been implemented under an order under section 86 of the Northern Ireland Act 1998, as we have discussed before. On this occasion, however, the draftsman chose to incorporate these provisions under paragraph 41 of schedule 3, which will become effective post-devolution.
The hon. Gentleman's other substantive question was who could dismiss the judicial office holders post-devolution. It would be the First Minister and Deputy First Minister.
§ Mr. Browne
I am afraid that this comes down to the old flexibility argument again. It is difficult to predict at this stage exactly what the demand will be for lay magistrates. If they are to be trained, we might not be able to train them all at the same time. We need a degree of flexibility.
I accept the merit in the hon. Gentleman's argument and I hope that once the original difficulties are seen through and the change takes place, the norm will be that 74 people will not exercise this function until they have been trained to do so. However, I cannot guarantee, in all situations, that the demand for lay magistracy and magistrates courts hearings will be such that they can be serviced in a transitional period, and flexibility will be required. I take on board what the hon. Gentleman says and will bear it in mind. We have been able to do something about a situation when we looked at the figures in more detail on previous occasions and I will consider whether that is possible in this respect.
§ Amendment agreed to.
Amendments made: No. 107, in page 82, line 24, at end insert—
'(4) In subsection (5), for "Lord Chancellor otherwise determines" substitute "First Minister and deputy First Minister, acting jointly, otherwise determine".
(5) In subsection (11)—
No. 108, in page 82, line 25, leave out from beginning to "(within" in line 27 and insert—
(1A) An order under section 10(4) shall be subject to affirmative resolution".'.
No. 109, in page 82, line 28, at end insert—
'(3) In subsection (3), omit "10(4) or".'.—[Mr. Browne.]