§ 12.19 p.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
rose to move, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].
The noble Lord said: My Lords, the draft order is to be made by powers conferred by the Justice (Northern Ireland) Act 2002. The order was laid before the House on 11 March and debated in another place on 31 March. The order prescribes the eligibility requirements for appointment as a lay magistrate, a new judicial office which we are establishing in Northern Ireland. Our overriding objective is to ensure that lay magistrates are not appointed when they have a real or a perceived conflict of interest. Other factors to be taken into account when determining eligibility include distance from the court locality and specific personal qualities.
501 This new office is an important initiative, stemming from the Belfast agreement. The agreement endorsed the creation of a justice system that would,be responsive, encourage community involvement and promote public confidence".The agreement also provided for a review of the criminal justice system in Northern Ireland. The review group considered as part of its remit,measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system".Views emerging from consultation by the review group were supportive of a strong lay magistracy. The introduction of this measure, which will establish an important link between the courts and the local areas they serve, will lead to further enhancement of public confidence in the criminal justice system in Northern Ireland. Lay magistrates will perform certain criminal justice functions currently performed by justices of the peace and all functions currently performed by lay persons sitting alongside resident magistrates dealing with criminal proceedings in youth courts and care proceedings in family proceedings courts.
The order is supplemented by a statement of policy, which has been placed in the House Library. Our policy sets out our thinking for the inclusion of the list of offices and occupations on the face of the order and provides guidance in relation to other offices and occupations. The list does not seek to be exhaustive. Furthermore, it received widespread support from those who responded to the public consultation in Northern Ireland on the draft order and policy.
While the order and the policy provide guidance, when making appointments to the lay magistracy the Lord Chancellor retains an overall discretion. This will ensure that the Lord Chancellor retains the ultimate decision-making authority on the merits.
The new post will be introduced in April 2005. Following appointment, there will be a focused training programme for the new lay magistrates.
In conclusion, the establishment of this new office of lay magistrate is a meaningful measure flowing from the Review of the Criminal Justice System in Northern Ireland. The lay magistracy will be comprised of local people adjudicating in their local court areas, which will further enhance the confidence of the public in the justice system. The Government consider that the right balance has been struck between minimising constraints on eligibility on the one hand and, on the other, building in sufficient checks and balances in the appointments process to protect the integrity of the office. I commend the order to the House.
Moved, That the draft order laid before the House on 11 March be approved [12th Report from the Joint Committee].—(Lord Filkin.)
§ Lord Kingsland
My Lords, I am most grateful to the Minister for his opening observations on the draft order. I should like to raise three matters with the noble Lord.
502 The first concerns the selection criteria for lay magistrates. I note the following sentence in paragraph 9 of the Explanatory Memorandum to the draft order, which states:Appointments will be made strictly on the basis of merit and an essential consideration will be to appoint a Lay Magistracy that is broadly reflective of the community it serves, particularly by community background and gender".In my submission there is a potential conflict here between the criterion of merit and the criterion of reflectiveness. I should like to ask the Minister how it is intended to resolve that.
I have had the opportunity of glancing at the debate that took place in another place on 31 March. I note that the Minister, Mr Leslie, put the matter this way:I do not feel that there is any inconsistency between appointment on merit and seeking a more diverse range of appointments, not least because much can be done to improve the diversity of applicants. If the pool of applicants is narrow, consisting, as is traditional, of white, middle aged men with a particular background, the chances are that the final appointments will be of white, middle aged men. They may be appointed on merit, but be from a narrow spectrum and not necessarily be reflective of wider society. However"—and here I come to the crucial part of Mr Leslie's speech—if we encourage a wider pool of people to apply, including women, and people from ethnic minorities and of different ages, the chances of having a broader, more diverse judiciary, also appointed on merit, are increased".—[Official Report, Commons Third Standing Committee on Delegated Legislation, 31/3/04; col. 23.]If that is to be the Government's approach to the selection process, I would have no quarrel with it. It seems to me wholly consistent with the exclusive criterion of merit, nevertheless, to have a programme which, over a period of time, encourages a more diverse pool to apply for the post in question.
My attention has been drawn to Clause 3 of the Justice (Northern Ireland) Bill in this specific context. Clause 3 is inserting a further section into the 2002 Act, in place of subsections (8) and (9) of Section 5 of that Act. Proposed subsection (8) provides:The selection of a person to be appointed, or recommended for appointment, to a listed judicial office (whether initially or after reconsideration) must be made solely on the basis of merit".Proposed subsection (9) provides:Subject to that, the Commission must at all times engage in a programme of action which complies with subsection (10)".Proposed subsection (10) states:A programme of action complies with this subsection if—(a) it is designed to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in Northern Ireland.(b) it requires the Commission, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in Northern Ireland is available for consideration by the Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office; and(c) it is for the time being approved by the Commission for the purposes of this section".503 If the approach set out in the Bill is, indeed, to be the approach taken to lay magistrate selection under this order, would the Minister be kind enough to confirm that for me in his closing remarks?
My second concern is about the order itself, and in particular about the proscribed categories. I note that eligibility for selection will be limited to those who live within 15 miles of the county court division to which the appointment relates. I am also aware that some county courts are close enough to the Northern Ireland border so that the 15-mile radius will stretch into southern Ireland.
I have, of course, no objection whatever to lay magistrates being selected from south of the border if they fall within the 15-mile radius; that has, as I understand it, been the case for justices of the peace for several hundred years. I am, however, rather concerned at the implications of this fact for the list of proscribed activities. I note, for example, in paragraph 2(b) of the order that not only are Members of another place, the European Parliament, the Scottish Parliament, the National Assembly for Wales, the Northern Ireland Assembly and your Lordships' House excluded, but Members of either House of the Irish Parliament. The Irish exclusion seems to me to be perfectly reasonable given that all Members of Parliament from the United Kingdom are excluded.
The other list, however, at sub-paragraph (e) refers to:
I note that all these proscriptions relate to Northern Ireland alone. None of them applies to equal categories of persons south of the border. That is inconsistent with the approach to elected Members.
- (i) a member of the Police Service of Northern Ireland,
- (ii) a member of the Police Service of Northern Ireland Reserve,
- (iii) a member of the Northern Ireland Policing Board,
- (iv) an employee of the Northern Ireland Policing Board.
- (v) the Police Ombudsman for Northern Ireland,
- (vi) an employee of the Police Ombudsman for Northern Ireland,
- (vii) the Director of the Assets Recovery Agency,
- (viii) a member of staff of the Assets Recovery Agency,
- (ix) the Director or deputy Director of Public Prosecutions for Northern Ireland,
- (x) a member of staff of the Director of Public Prosecutions for Northern Ireland,
- (xi) a member of Her Majesty's Regular Armed Forces,
- (xii) a member of staff of the Northern Ireland Prison Service,
- (xiii) a member of staff of the Youth Justice Agency,
- (xiv) a member of the Probation Board for Northern Ireland,
- (xv) a member of staff of the Probation Board for Northern Ireland,
- (xvi) a practising barrister or solicitor.
- (xvii) a member of the panel of guardians ad litem appointed under the Guardians Ad Litem (Panel) Regulations (Northern Ireland) 1996".
504 I am curious to know what policy approach determined the drafting in the order. It seems to me that, unless there is a reason for adopting that approach which is reasonable, the approach is defective. The same discrimination also applies to the proscriptions of spouses or partners of those categories to which I have just referred in your Lordships' House.
My third and final—the Minister will be relieved to hear—question concerns the last proscription in the list which falls under paragraph (2)(j). This states that,if he [the potential candidate] has been convicted of an offence punishable by a term of imprisonment".I am curious to know what the Minister makes of the expression,punishable by a term of imprisonment".This issue was also raised in another place. I must say that I found the Minister's response to the question on that occasion somewhat opaque.
It was put to the Minister directly: does the expression,punishable by a term of imprisonment",mean any offence that has a range of punishments, one of which is imprisonment? In other words, does it mean that any offence that has a range of punishments, one of which is imprisonment, is the relevant offence under that clause; or does the clause bite only if someone is actually imprisoned or given a suspended sentence?
Mr Leslie responded in another place:Unless their offence had a conviction that involved imprisonment ☠ they would be eligible".—[Official Report, Commons Third Standing Committee on Delegated Legislation. 31/3/04; col. 7.],meaning that they would be appointable. If that is so, it seems to he, in my submission, an eminently sensible approach. I can think, for example, of a number of offences in relation to the definition of "waste" that are usually dealt with in a magistrates' court and which carry either a tine or a period of imprisonment for three months. Almost invariably, whether an individual pleads guilty to the offence or, indeed, is found guilty after a trial, the magistrates will impose a fine. They will not impose a period of imprisonment. It would, in my submission, be bizarre if someone who had been arraigned before the magistrates' court for a waste offence and was fined nevertheless to be caught by this provision. However, there was sufficient uncertainty in my mind as a consequence of the debate following Mr Leslie's remarks to ask for the reassurance of the noble Lord.
§ Lord Addington
My Lords, I shall take up considerably less of your Lordships' time than the noble Lord, Lord Kingsland. On the whole the order seems sensible enough; its provisions are basically just common sense. The list of the exemptions seems reasonable enough to me, although I believe that one small change could be made. I hope that the Minister will be able to give me an example of the thinking behind the order so that we can know the Government's thought processes on the matter. That is probably as important as the list. I refer to the exemptions for partners. It appears that the exemption does not apply for a spouse or partner of someone who has worked for the Probation Board. Why 505 is the position different as regards a partner or spouse of someone who has worked for the Youth Justice Agency? The dividing line seems to be drawn rather oddly. If the Minister can answer that question, it would allay one small doubt. However, as I say, on the whole this is a sensible order. We see no objection to it. We think that the change-over from lay magistrates to JPs is sensible. Indeed, we are very happy.
§ Lord Filkin
My Lords, there will be a slight sense of a foretaste of what we shall enjoy next Thursday when I believe that we shall have the privilege of returning to the Justice (Northern Ireland) Bill. The noble Lord, Lord Kingsland, referred to some of the debates that we had when that Bill was last in this House.
I turn to one of the very good debates that we had on that Bill which concerned how you seek to achieve two things at once. I refer to a judiciary that is reflective of the community that it serves. There was no dissent in this House to that as an objective of policy, which I was warmed to feel when we had that debate. But how does one achieve that without there being any conflict about, or compromise on, merit? I am extremely pleased to affirm our policy stance on this order and to repeat what I said in the House at that stage of the Bill—and will come back to in terms of the future legislation—that is, that it is exactly as I think the noble Lord, Lord Kingsland, would wish it to be, by which I mean that it is perfectly proper. It is our policy that action should be taken to try to encourage people from a diversity of genders, societies and backgrounds to think about applying for judicial office—in this case, the lay magistracy—with the aim of trying to gain a diverse pool of people. However, when the process of selection comes, the decision is made solely on merit. We discussed that distinction, and I recollect the support of the noble Lord, Lord Kingsland, in those discussions. Exactly the same approach is taken in the order, whether a future Bill is passed or not, which of course I hope that it will be.
I turn next to proscribed categories and other police forces, which I very much respect is a sensitive issue. The order is crafted in reference to geographical distance from the county court areas, because that is what the primary legislation empowered it to do; it could not use another basis than that. One benefit of taking a little more time on the order has been that we set out a policy statement for this House and another place of what clearly lies behind our thinking, and how we intend to operate the discretion that the Act and the order give the Lord Chancellor.
We made it clear in that policy statement, in correspondence subsequent to it and in another place, that, although the order itself does not list every other police force that could be proscribed, for example, we think it incompatible with confidence in an independent judiciary if a member of any police force were appointed to the lay magistracy. I hope that the noble Lord, Lord Kingsland, shares the view that, in a sense, that is virtually self-evident. One cannot achieve confidence in the independence of a judiciary in terms of the public at large if the person on the Bench is seen to be a policeman. 506 That is not to say that policemen are corrupt; it is an issue about perception of independence. That is our position. The Gardai, for example, are not specified in the order, but they will not be appointed to the lay magistracy in Northern Ireland.
We could have made the point in the order, but we would have been foolish to have tried to list every comparable office that might have been proscribed. The list would have been at least 700 long. With the best of efforts, the chances of getting it perfectly right would have been fairly slim, I suspect. Therefore, we sought to set out the obvious ones and to signal our policy position, as I have tried to emphasise.
§ Lord Kingsland
My Lords, I am most grateful to the Minister for the assurances that he has given the House about the inappropriateness of appointments to the lay magistracy of any member of a police force, whether north or south of the Border. The first reason why I drew his attention to the list was that we had not at that point had the benefit of his statement about the generality of the prohibition.
Secondly, the list seems very specific to Northern Ireland. The noble Lord said that it would be a very long list if we included everyone and that the order would have been impossibly long. However, one is inevitably struck by the fact that the only categories stipulated in the order are categories from Northern Ireland. That was what initially made me make the point as I did. However, the Minister's response has been extremely valuable, and I am most grateful.
§ Lord Filkin
My Lords, there was a very slight phrase in my opening speech that referred to the list not being exclusive. On that I hang my explanation at this point, but there is a clear policy position.
§ Lord Kingsland
My Lords, I quite accept that the list is not exclusive, but the selection for the list that the Minister chose to put in the order is, in my submission, rather one-sided.
§ Lord Filkin
My Lords, I shall not repeat what I said. The thrust is essentially to be absolutely clear about the Northern Ireland posts, and that the same principles would apply to any analogous posts from any other country. That is an important point, and I am genuinely glad that the noble Lord has allowed us to tease out the issue. Again, it is an issue of public confidence.
I do not think that I shall please the noble Lord on the next point. While there may or may not have been ambiguity in another place, the order is clear in law that the offence could be imprisonable. Unless the powers of exemption were applied, a person would be debarred from being appointed as a lay magistrate if he had been convicted of an offence that could carry a term of imprisonment, whether the individual had been imprisoned in practice or not. That balance is right. The noble Lord will be adroit at identifying, as he did, examples on which one might ask whether we 507 were really serious. Nevertheless, as a working distinction, the offences that carry terms of imprisonment are self-evidently the more serious ones.
That is a strong and good position because, in principle, someone who has been convicted of an imprisonable offence has a presumption against him that he has the qualities that would give the public confidence in his standing. However, I draw to the House's attention the power of exemption that the Lord Chancellor has. He alone has it; a selection panel does not. If a lay panel making a recommendation for appointment believed that someone was suitable but was debarred as a consequence of the inhibition that we are debating, it is open to that panel to put in writing to the Lord Chancellor why it believes that an exception should be made. It cannot make the exception itself. The Lord Chancellor then has the power to make an exception if he thinks it appropriate.
The sort of example of which I am thinking is of someone who might have been convicted, perhaps when 18, of disorderly behaviour. Thirty years later, he was no longer a disorderly person, but was nearly 50 and wanted to be a lay magistrate. In such a situation, one can envisage a lay panel thinking that the person met all other merit tests, nothing having happened apart from that offence 30 years ago. In such a situation, some panels might put forward a case for the discretion that resides with the Lord Chancellor to be exercised.
§ Lord Addington
My Lords, it was on why those working in the probation service and their spouses were not excluded while those who worked for the Youth Justice Agency were. Where was the line drawn? What was the thinking behind it?
§ Lord Filkin
My Lords, the Youth Justice Agency is akin to the Prison Service and deals with young people in custody. The order reflects that, but there is no similar conflict in respect of members of probation boards. Sometimes I feel that one gives less good answers from the Dispatch Box than one would wish, through problems of eyesight. Perhaps I can amplify the point subsequently. I am apologetic for not being able to give a clear answer.
§ Lord Addington
My Lords, I believe that I have gathered that the distinction concerns someone working within the Prison Service, as opposed to with someone who has come out. I see a cut-off.
§ Lord Filkin
My Lords, it is not good Parliamentary process, but if the noble Lord, Lord Addington, will bear with me I would be pleased to have a discussion with him immediately afterwards to enter into a little more detail on that point. I beg to move.
§ On Question, Motion agreed to.