§ 7.53 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 31st January be approved.
§ The noble and learned Lord said: My Lords, by way of general introduction to the order, I should explain that the statute law governing the procedures for the selection, summoning and empanelling of juries in Northern Ireland is found in a series of measures enacted between 1828 and the present day. This order is primarily directed therefore at consolidation of the several statutory provisions in this area but the opportunity has also been taken to modernise the legislation and to make some adjustments, some of which will bring Northern Ireland into line with England and Wales.
§ The draft order was subject to the normal public consultation which is part of the procedure for all Northern Ireland Orders in Council made under paragraph 1 of Schedule 1 to the Northern Ireland Act 1974. The value of this consolidation measure, and the contents of the order in general, were broadly welcomed on consultation. Accordingly, I propose to concentrate on explaining those provisions which effect significant alterations to the existing practice whether those amendments are proposed in order to align more closely with England and Wales or to take cognisance of distinctive considerations relevant to jury practice in Northern Ireland, or to take proper account of comments made in the course of consultation.
§ I turn then to the provisions of the order. Article 3, Article 10(2) and the associated schedules—that is, Schedules 1, 2 and 3—set out the details of those who are eligible to serve, those who should not serve, and those who may serve unless they opt to claim excusal.
§ The existing law in Northern Ireland recognises only two categories; those who are disqualified from jury service and those who are exempt. In both cases the prohibition on jury service is absolute. That is clearly necessary and justifiable in respect of disqualification. But the provisions on exemption are unduly rigid and their effect is to prevent some persons—such as the holders of specified senior public offices and the caring professions—from serving on a jury even when they would wish to do so. The introduction of a new category of persons, set out in Schedule 3, described as excusable as of right will remove this absolute bar on jury service as regards some of the persons who at the moment cannot serve on a jury in any circumstances. At the same time an absolute and proper prohibition in certain circumstances, such as where there is a connection with 813 the administration of justice, is preserved. The lists of those falling into the revised categories are also required of necessity to be reviewed, modernised and rationalised in several respects.
§ In essence therefore the order re-categorises the structure of jury qualification with the overall purpose and effect of bringing Northern Ireland more closely into line with England and Wales. The new provisions will draw a clear and useful distinction for the first time in Northern Ireland between those who are disqualified because of, for example, the gravity of their criminal record, those who are ineligible, and those who, because of vocation, profession or age may claim excusal from jury service as of right.
§ During the consultation process a number of issues were raised which are now addressed in these particular articles and schedules. The Criminal Justice and Public Order Act 1994 amended the law on juries in England and Wales. Several consultees drew attention to those amendments and asked that equivalent changes be considered in the context of this order. I have accepted, and this order reflects, that Northern Ireland should be aligned with England and Wales in two further important respects.
§ First, members of religious societies or orders the tenets or beliefs of which are incompatible with jury service will be entitled to be excused from jury service as of right. Originally this was a recommendation of the Royal Commission on Criminal Justice and was subsequently approved by Parliament for jury service in England and Wales. I believe that your Lordships will agree that those in Northern Ireland with the same conscientious objection should have the same entitlement.
§ Secondly, the 1994 Act amended the Juries Act 1974 so that in circumstances where a potential juror suffers from some form or degree of physical disability, but is nonetheless capable of acting effectively as a juror, the judge is required to affirm the summons. In the interests of justice, of course, the judge must retain a discretion to discharge the jury summons. Article 11 of the order will make the same provision for Northern Ireland. Again, the emphasis is on the responsibility of the judge to affirm the summons unless he is of a view that the person in question is incapable of acting effectively as a juror.
§ The order consolidates without amendment the existing law concerning the various types of challenge to service on a jury which may arise in criminal and civil cases. Articles 13 through to 17 deal with these arrangements. In consulting on this specific consolidation the Government have recognised, of course, that there are arguments both for and against the existing arrangements. In the absence of conclusive arguments for change and in the context of well documented support for retention of the existing rights to both peremptory challenge and Crown stand-by, the Government have concluded that there is no compelling reason to interfere with the long established practice at this time. This may be particularly so in the context of a measure which is principally directed at consolidation rather than fundamental review.814
§ Article 21 introduces a new power in Northern Ireland which has been available in England and Wales for some considerable time. At present in Northern Ireland on the death or discharge of a serving juror in a criminal trial the case may proceed only with the written consent of both parties. The existing arrangement has the potential to disrupt trials unnecessarily and is considered unduly inflexible. A valuable improvement is made to existing practice by this article to allow the trial to continue at the discretion of the judge in such circumstances, subject to special arrangements in capital cases.
§ I turn now to Article 27 which will enable me to prescribe by secondary instrument, subject to negative resolution, the oath taken by jurors. In England and Wales and in Scotland the oath taken by jurors has been reviewed and, as a result, simplified and modernised. The form of oath taken in the rest of the United Kingdom is, I think, recognised as concise, appropriate and intelligible. By comparison the oath used in criminal trials in Northern Ireland remains in its antiquated and somewhat arcane form. The power to prescribe the oath is likely to be used in due course to bring Northern Ireland into line with England and Wales. I think it is fair to say that the need for change to the oath has been widely acknowledged. Given that the modernisation is likely to involve a removal of a specific reference to the sovereign, however, it would be ingenuous for me not to recognise that there may be some who attach what I believe to be an unmerited significance to this aspect of the proposal. The retention of a reference to the sovereign is not thought to be an essential part of the jury process elsewhere in the United Kingdom, and the Government do not see that there can be any reasonable objection to align Northern Ireland in this respect.
§ Finally, I think I need draw the attention of the House to only one other specific provision of the order. Article 31 brings juries in coroner's inquests within the statutory framework for all other juries. The arrangements for juries in inquests are at present outside the formal scope of the juries legislation in Northern Ireland although in fact the procedures for selection and summoning of juries from the relevant divisional jurors list has been used by the coroners in making arrangements for inquests for a considerable time. Article 30 and Schedule 4 formalise those arrangements.
§ Although the order is primarily a consolidating instrument, and nonetheless valuable for that, we have taken the opportunity to review some of the present arrangements and to make some sensible adjustments which, although relatively modest, will be beneficial. I commend the order to the House.
§ Moved, That the draft order laid before the House on 31st January be approved.—(The Lord Chancellor.)
§ Lord Williams of Mostyn
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for outlining the thinking behind the order. I know that he has had stormy waters to navigate recently, which I think he navigated with admirable patience and calm, as always. It is not my intention to be in any way controversial. I simply wish to ask one 815 or two questions. I recognise entirely the burden on the noble and learned Lord the Lord Chancellor recently and, if it is thought more suitable, I should be more than happy with a written reply.
The first question derives from Article 15. I understand the retention of challenge for cause of up to 12 jurors to be merely an illustration of what the noble and learned Lord indicated as being special circumstances in Northern Ireland. I quite understand that.
I have a question about Article 21. That allows the sensible procedure available in England and Wales of the continuance of a criminal trial where a juror dies or is discharged for a proper cause by the presiding judge. My question arises in relation to the phraseology in relation to Article 21(2). The exclusion offered there by way of example is:On a trial for any offence punishable with death paragraph (1) shall not apply … unless assent to its then applying is given in writing by or on behalf of both the prosecution and the accused or each of the accused".My dim recollection is that if that is intended to refer to murder, as it does in this country, where the sentence is life imprisonment, that is the occasion when written assent is called for. It may be my misunderstanding of the alternative sentences available in Northern Ireland.
I should have thought that if murder is punishable with life imprisonment in Northern Ireland, Article 21 should be phrased slightly differently. I put forward that suggestion extremely tentatively because I may have an imperfect understanding of the position. But I believe, with some degree of trepidation, that that article may not be worded properly to achieve the desired objective.
I concur with what the noble and learned Lord said about Article 27. There may be some anxieties about altering the form of the oath but I believe that the safeguards provided in that article—namely that a specific order is required subject to annulment by resolution of either House of Parliament—are proper and appropriate.
As regards Article 31, anything which improves the system of coroner's juries in Northern Ireland in my view is a useful advance. Therefore, subject to the particular question relating to Article 21, which may be as a result of my misunderstanding, I welcome the order.
§ The Lord Chancellor
My Lords, I am grateful to the noble Lord, Lord Williams of Mostyn, for his support for the order and in particular his support for the provisions to which he referred specifically; namely, the continuation of the arrangements for peremptory challenge and the arrangement for bringing coroner's juries within the statutory scheme.
My understanding of Article 21 is that that is the exception appropriate in a trial for treason. That is an offence punishable by death. I believe that that is the only type of offence which remains punishable by death in Northern Ireland. Therefore, this provision would not apply to a trial for murder where the sentence in Northern Ireland, as in England and Wales, is a mandatory life sentence. Nor would it apply to any other trial in which there is the possibility of a discretionary 816 life sentence. It is intended to apply to the possibility of a trial for treason. I am glad to say that those are extremely uncommon and the more uncommon they remain the better for all of us.
I am grateful for the reception of the order. In particular, I welcome what the noble Lord said about the jurors' oath. That is the provision which has concerned me most and I particularly welcome his support in that respect.
§ Lord Williams of Mostyn
My Lords, I am extremely grateful for that elucidation of Article 21(2). But if I understand Article 21(1) correctly that means that in a murder trial, provided that the reduction in the number of jurors is not fewer than nine, the judge may direct the continuation of the trial without the assent of the defendant. I believe that to be different in England and Wales where the written assent of the defendant is required if there is a shortfall. That may be a gap in the order.
§ The Lord Chancellor
My Lords, with the leave of the House, my understanding of the order is as the noble Lord has just said. I do not recollect exactly the position in relation to England and Wales. I am being referred to the corresponding position for England which states:On a trial for any offence punishable with death subsection (1) shall not apply",and so on. Therefore, the information I have at present suggests that that is the position in England and Wales also. However, in view of the question raised by the noble Lord, I shall check and, if I am wrong about it, I shall write to him. However, my understanding is that the provision to allow the trial to continue at the discretion of the judge so long as the number of jurors is not reduced to fewer than nine applies in every case except where the offence is punishable by death which, as I said, will only be for a crime of treason. That would be a highly exceptional circumstance.
On Question, Motion agreed to.
§ [The Sitting was suspended from 8.10 to 8.40 p.m.]