COMMONS AMENDMENT (Hansard, 12 November 2003)

§ Lord Filkin
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
The amendment deals with subsection (5)(c) of Clause 17, which would allow rules to disenfranchise lay justices who have only recently been appointed to a local justice area by preventing them voting in contested elections for a local chairman or deputy chairman. The Liberal Democrats raised this point in Committee in the other place.
It is not the Government's intention to prevent any justices in a local justice area partaking in the full range of their duties. The current rules do not make use of the power to limit the justices' electorate, even though they have done in the past. Commons Amendment No. 4 was drafted to meet their concerns by deleting subsection (5)(c).
Amendment No. 7 restores to Clause 41 a subsection that was removed at Lords Third Reading. The noble Lord, Lord Goodhart, who moved this amendment, expressed concern as to the compatibility of this section with Article 6 of the European Convention on Human Rights. I think it would be fair to say that that issue was well probed in Committee and in subsequent stages. I seek merely to put as fairly and fully as I can why we think that the current wording of the clause is correct.
1379 Clearly, the starting point must be that magistrates who are members of local authorities should not sit on a case involving a local authority. That should be abundantly clear to magistrates and to the justices' clerk. In the overwhelming majority of cases it will be obvious to everyone that a magistrate should not sit, and they would therefore not seek to do so. We are merely catering for perhaps extremely rare situations in which disqualification may not be immediately obvious and a magistrate sits in error. That happens very rarely indeed. When it happens, it will almost always be obvious whether or not the decision should be invalidated.
Although a matter for the courts, if a tribunal which included a disqualified person made a decision in favour of the local authority, that decision would almost certainly be flawed on Article 6 grounds and would probably automatically be struck down. I use my words conditionally only to avoid presuming the court's position. I think that the position in fact is very clear indeed. In other words, the amendment does not preclude the application of other grounds for invalidating the decisions, such as actual bias, apparent bias or an interest in the case. I think that that is quite properly the heart of the concerns of the noble Lord, Lord Goodhart. The wording is not meant to indicate that in such situations the decision would not be struck down.
We believe that it is important—perhaps not the most important issue of the Bill—to make this amendment because it caters for a small number of cases where a disqualified person sat on a panel by error (most likely in an interim hearing, a procedural matter), but the decision was not questioned by either of the parties. Where no prejudice is caused by the magistrate's disqualification, it would be unreasonable, burdensome and a waste of time both to the court and the parties, to invalidate these decisions merely because the magistrate had sat when it was clearly preferable that he had not done so. That is all that the issue is about. It does not seek in any sense to take away the natural justice of a defendant in a case where it would appear that there was bias to him as a consequence of a decision.
I turn to Amendment No. 8 to Clause 42. This clause validates the appointment of 23 foreign nationals recruited as magistrates prior to 31st January 2002 and authenticates all acts carried out by them during their time in office.
The government amendment tabled in the other place removes the restrictions imposed by the Act in relation to the future appointment of lay magistrates. The Government are fully committed to appointing magistrates who represent the communities they serve. This amendment was made in response to one tabled by the noble Lord, Lord Goodhart, to which we were sympathetic. It will allow the Lord Chancellor to appoint lay magistrates who are able and willing to serve, regardless of their original nationality.

Lord Renton
My Lords, I have some difficulty with this matter. We are discussing Amendment No. 4, and with it we are asked to consider Amendments Nos. 7 and 8. Amendment No. 7 states: No act is invalidated merely because of the disqualification under this section of the person by whom it is done". However, that seems to contradict subsection (1) of Clause 41 which states: A lay justice who is a member of a local authority may not act as a member of the Crown Court or a magistrates' court in proceedings brought by or against, or by way of an appeal from a decision of— (a) that local authority and so on. Will the noble Lord explain why, given that this disqualification of lay justices is so described at the beginning of Clause 41, it will nevertheless be enacted that no act will be invalidated because of the disqualification? I find that a contradiction.

§ Lord Goodhart
My Lords, the three amendments that we are discussing which have been grouped have nothing in common apart from the fact that they originate either from these Benches or from my honourable friends in another place. However, two of them are concessions or amendments accepted by the Government, which I am very pleased to see. That applies to Amendment No. 4, which originated from the Liberal Democrat Benches in the other place, and to Amendment No. 8, which comprises a matter I raised in your Lordships' House.
As regards the date of 31st January 2002, I believe that it was only at that point that the Government appreciated that the Act of Settlement prevented the appointment of lay justices who were not of British birth or born within the United Kingdom or the British dominions.
There is no question that a number of people who do not qualify under the Act of Settlement have in the past made useful contributions as magistrates, and more will be able to do so in the future. Therefore, I am glad to welcome the relevant measure. Originally, I was worried that the measure applied not only to magistrates but also to judges, in which case it would have had some rather startling effects. In particular, a very distinguished judge, a member of the Court of Appeal, would have been disqualified under the Act of Settlement if it had not been amended so as not to apply to the appointment of members of the judiciary. It seems very odd that that judge can sit as a member of the Court of Appeal but would not have been eligible to be appointed as a magistrate. As I say, I very much welcome the measure.
I am disappointed with Amendment No. 7. It will more or less inevitably be the case that a magistrates' Bench which includes a magistrate who is a member of a local authority cannot constitute an impartial and independent tribunal, as required by Article 6 of the European Convention, when hearing a case to which the local authority or one of its officers is a party. The Government's argument that there may be cases in which a decision is taken in favour of the other party to the case—or it may be something no one wants to bother to set aside—is unimportant, because, as the noble and 1381 learned Lord, Lord Donaldson of Lymington, pointed out when this matter was first raised in Committee, the effect of a disqualified person sitting as a member of the Bench would not be that the decision was automatically invalid but only that it was voidable if it was challenged. As regards a party in whose favour the decision was given, or an interlocutory decision on some procedural matter which no one wants to start all over again, the decision would be left to stand. In those circumstances I am disappointed that the Government have not taken this point on board.
Having said that, I recognise that this is not by any means the most important change that was made to the Bill during its passage through the two Houses. It is therefore not one that I should wish to take any further or on which I seek to take the opinion of the House.

§ Lord Avebury
My Lords, I intervene briefly in order to thank the noble and learned Lord the former Lord Chancellor, to whom I wrote about a friend of mine who had been all the way through the procedures for becoming a magistrate and was on the point of being appointed when it was realised that the Act of Settlement debarred citizens of the European Union from being appointed magistrates. The noble and learned Lord considered sympathetically the case that I put to him on behalf of my friend. Ultimately she became a magistrate. The noble and learned Lord may be pleased to hear that she now adjudicates on cases having lived in this country for 26 years. My only surprise is that, given that the Act of Settlement has been on the statute book for some 200 years, it was discovered only very belatedly that it debarred citizens of the European Union from being appointed magistrates. I am very glad that my friend, and I believe 20 or 30 others in a similar position, have now been through all the hoops and are now helping to ensure that justice is done in our courts.

§ Lord Filkin
My Lords, I thank the noble Lord, Lord Avebury, and compliment him, not for the first time, on his advocacy and vigilance in championing individual rights. I am glad that on this occasion at least we were able to satisfy him. I also thank the noble Lord, Lord Goodhart, for accepting with good grace that we do not on this occasion agree with him exactly as regards the relevant measure. The issue was well tilled in Committee and subsequently.
The noble Lord, Lord Renton, as ever, is absolutely right to say that Clause 41 makes it clear that local authority members sitting on a magistrates' Bench should not take part in a case which involves a local authority. However, our amendment addresses certain very narrow circumstances. Although in very many cases such a decision would be automatically struck down, there are occasions where no offence to justice arises. I referred to a procedural matter in that regard. We seek not to abandon procedural common sense in pursuit of the greater remedy of not allowing local authority members to take part in substantive hearings where they might be considered to have found in 1382 favour of a local authority. There would then be a real appearance of bias, even if there had not been bias. I am at risk of repeating what I said earlier, but I hope that that clarifies the situation.