Draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2003

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Mr. Tom Watson (West Bromwich, East): My hon. Friend brings his characteristically forensic analytical skills to these affairs. Could he say precisely how many Irish parliamentarians serve as magistrates in Northern Ireland?

Andrew Mackinlay: That is a good point. Of course, I am disqualified from doing so, but my hon. Friend will remember the very distinguished Northern Irish resident who served as a member of the Irish Senate. He was the father of the famous nurse who died as a result of the terrible tragedy that was the Enniskillen bombing. As my hon. Friend knows, in the past 25 years there has been a practice whereby from time to

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time the Taoiseach appoints people from Northern Ireland—resident in Northern Ireland—to serve in the Irish Senate. The hon. Member for Newry and Armagh (Mr. Mallon) was in the Irish Senate for a time while resident in Northern Ireland.

The late Senator Wilson is a very good case, and the Taoiseach may well wish to do subsequently what we are discussing. However, I have to say to my hon. Friend, as he intervened, that I did not write this order. The Government or the Lord Chancellor's Department wrote it. I just think that it should be accurate. As I said, we should not just rubber-stamp flawed measures. We should send homework back for another go if it is wrong. That is our job in this place.

I have illustrated one point, but I have more. On page 3, paragraph (h) reads:

    ''if he is a close relative of—

    (i) a police officer''.

What is a close relative? That is as long as a piece of string.

Mr. Leslie: I suggest that my hon. Friend reads article 1(2).

Andrew Mackinlay: Perhaps the Minister will be more generous and tell me what my error was.

Mr. Leslie: There is a definition of ''close relative''.

Andrew Mackinlay: I apologise. Nevertheless, the point that I wanted to make, which is my continuing theme, is that it would be much better if the order had been published as a code of practice and as guidance, particularly as the Lord Chancellor has a catch-all power of effectively saying, ''Notwithstanding that Parliament has passed this instrument, I can vary it.'' I questioned the Minister and I thought that he was going to say that he could vary it only on the margins, but according to the Minister he can disregard each of the hundreds of categories on these pages.

I was not being sarcastic when I said that there could hardly be anyone left in Northern Ireland who does not fall into that category. I am guilty of exaggeration, but such has been the nature of Northern Ireland over the past years that there are numerous police officers, spouses of police officers, relatives of police officers and ex-police officers. When included with all the others it seems unrealistic for Parliament to lay down these categories like tablets of stone. There should be a more common-sense approach.

I turn to the Whips. I sent an apology to the Government Whip saying that I could not get here. I lied.

Mr. Fraser Kemp (Houghton and Washington, East): He said that he was in Belfast.

Andrew Mackinlay: I came back from Northern Ireland. I visited the Police Service of Northern Ireland this morning, but I thought this debate sufficiently important to come back to because I am concerned. If the Whips put me on a law-making body, I feel that I must be there unless I have a very good excuse to be elsewhere. I take these matters seriously.

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The hon. Member for Surrey Heath (Mr. Hawkins) raised another significant reason why the order should be taken back: hands up all those who represent Northern Ireland constituencies—there is not one. There is not one such Member here, in part for a good reason. It has been well known for some time that the Ulster Unionist party has a critical meeting this evening. I am sometimes surprised that its Whips and the Government Whips talk. It would have been common sense for this debate to be held at a time when the main political party could have been present to give the benefit of its views and—I genuinely say—guidance. This happens too often. That is another reason why as a matter of courtesy, not so much to representatives at Westminster who come from Northern Ireland, but in fairness to the people of Northern Ireland—

The Chairman: Order. It is worth pointing out to the Committee that there is nothing to stop any Northern Ireland Member or any other Member of the House turning up and making a speech to show concern or otherwise. That they have not done so is not my fault nor that of the Committee.

Andrew Mackinlay: Indeed, Mr. Cran. Through my inadequacies, you probably slightly missed my point. We are all members of political parties—we are all political animals here. The analogy would be if the Conservative party had a conference on today. If so, I do not think that Conservative Members would be present. I would have thought that the Ulster Unionist party was entitled to its slice of the action here.

I have to say—and I have had this row publicly elsewhere—that I am disappointed that members of the Social Democratic and Labour party are not here, bearing in mind that they are supposed to protect and promote the interests of the broad Labour movement in Northern Ireland. Given the cumulative reasons that I am given, it would be a sign of some generosity and statesmanship, as well as prudence, if the Minister and the Whip were to take away the order on this occasion.

The Chairman: Order. I do not mind the hon. Gentleman developing his speech as he wishes, but I do not want to hear any more about why this, that and the other Member from this, that or the other party is not represented here. I should like us to get back to the order, please.

Andrew Mackinlay: I have nothing more to say on that, Mr. Cran, but you did intervene on the hon. Member for Surrey Heath.

As a side comment, I think that the proposed arrangements for the future of the Lord Chancellor are very good, although things were done a bit clumsily. However, given the recent announcements of the Government's proposals, it is surely in order to ask the Minister a fairly simply question, as I might do if we were in the main Chamber dealing with a Bill. Assuming that the Lord Chancellor, as we know the holder of that office, ceases to exist in the next year, to whom is it intended that the relevant functions be transferred? Will it be to the Secretary of State for

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Northern Ireland or to the Minister with responsibility for constitutional affairs? I ask that in all seriousness. Presumably, some thought has been given both to that question and to the wider functions of the Lord Chancellor in relation to Northern Ireland, which were not discussed in Parliament, or by the media or politicians, because of the high profile of last week's announcement. The Lord Chancellor is a very senior figure in the Northern Ireland jurisdiction—in many respects more so than elsewhere. Will the Minister say what preliminary thinking there has been on how such matters should be approached?

My final question is about the selection process, which is not clear to me. To the Government's credit, the selection process for many public appointments throughout the United Kingdom has improved. For instance, there has long been an established procedure whereby posts for magistrates in England and Wales are advertised; people apply and so on. Will the Minister comment on the advertisement mechanism and the selection process, which are quite separate? I spent this morning considering the selection process for police officers in Northern Ireland and realised how rigorous and complicated it is. Bearing in mind the additional dimension of trying to achieve parity in terms of the various traditions in Northern Ireland, will the Minister say how it is intended that that be done? Which mechanisms, modalities and agencies will be used to handle recruitment and sift applications, and what will be the process of appointment?

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Mr. David Heath (Somerton and Frome): I welcome you to the Chair, Mr. Cran, and I also welcome the Minister, who must be wondering exactly what responsibilities his new post entails. Having already recognised the Scottish and Welsh dimensions to his post, he may find the fact that the first piece of legislation on which he is speaking relates to a Northern Ireland matter to be of some concern. Nevertheless, we welcome him. Although we have serious criticisms of the way in which the new Department has been brought into being and serious questions about how it is to function, we think that there must in principle be some merit in what is proposed.

It is legitimate to ask the Minister whether he has yet formed a view on the future of judicial appointments, including the appointments of lay magistrates. The matter is germane to the wider debate and will not forever remain the province of the Lord Chancellor, if we are to believe what is suggested. Indeed, there is a feeling that every piece of legislation that mentions the Lord Chancellor should also say, ''or his successor in title,'' although that is of course implicit in legislation in any event. However, there is currently a temporaryness—if that is a word—about the Lord Chancellor's position that would repay closer examination.

The genesis of the order was the criminal justice review group and its report, which has been widely considered in Northern Ireland. However, the Minister was wrong to suggest that there has been proper consideration of the matter in the House of Commons. During the passage of the Justice (Northern Ireland)

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Act 2002, the relevant section was not debated because of the application of the guillotine. The points that he said were raised were raised in another place, not in this House. In effect, this is our first chance to talk about the issues.

Having said that, to have some criteria by which lay magistrates can be appointed, which as far as possible eliminates any suspicion or charge of bias or prejudice in the lay magistracy for the Province, is a good thing. It is extremely difficult to lay out an exhaustive list in the way that the Minister has done in the order. I would not be surprised to find that there are commissions or omissions that we have not yet identified in that list. The hon. Member for Thurrock was right to draw attention to a couple of points. The first relates to the Lord Chancellor's discretion. I can understand a minor discretion being available for certain of the categories within the order, but this is a general discretion to ignore the entire order, which I find slightly difficult to understand.

Explanatory note 14 talks about the Lord Chancellor's discretion to relax the eligibility criteria in a particular case. As the Minister says, it provides the flexibility to set aside relatively minor issues. It goes on to say:

    ''This power is only likely to be exercised infrequently and only in exceptional circumstances''—

yet adds in parentheses—

    ''(say where a meritorious candidate has, at some time in the past, committed such an offence but has since proved to be suitable to hold the office of lay magistrate).''

That is quite worrying in the context of Northern Ireland, where memories and suspicions of prejudice are long.

I wonder in what precise circumstances the Lord Chancellor could put aside a previous conviction in order to appoint a magistrate who had been convicted of a criminal offence carrying a term of imprisonment over the threshold set out in the order. That seems to go a little beyond deciding whether the person is resident 15 miles or 15.2 miles from the county court division to which the appointment is made. The discretion has been drawn far too widely for the good of both the measure and the Lord Chancellor's Department because it invites people to request that minor issues be set aside.

Some of the criteria are absolute terms. One either is or is not a Member of the House of Commons. I do not say that one either is or is not a Member of the Dail because what the Minister intends to mean by the Dail is also the Senate. That is not what is provided in the order, however much he tells us that it is. It is a patent error. As the hon. Member for Thurrock says, it is not unknown for residents and citizens of the United Kingdom in Northern Ireland to be appointed to the Irish Senate. It is not a hypothetical case. It is one that should have been addressed properly in the order.

I should also like to ask the Minister about the term ''close relative'', which is defined under article 1(2) as extant members of the immediate family. What is the position for widows or widowers? Is that a disqualification? In terms of the perception of

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prejudice, that would be no different, I suspect, from a living wife or husband, who is a judge, a member of the armed forces or anything else. Indeed, in some tragic circumstances, it unfortunately might be held to be more prejudicial. Should the definition of close relative have included the terms ''widow'' or ''widower'', or is that understood within the law?

In terms of the specific posts, I share the view that the order is extraordinarily widely drawn. I am worried that in some categories there are people carrying out responsibilities that would well fit them to be lay magistrates, such as lay or custody visitors to police stations, lay visitors to penal establishments and members of district policing partnerships. In such cases, the prejudice is the other way round. If they are appointed magistrates, they should have to give up the other positions; it would be held that they were no longer able to carry out the duties of a lay visitor in relation to people who might have been sentenced by a court, or who felt that they might be prejudiced in favour of the judicial system rather than of the prisoner. I cannot see that as something that should disqualify a person from being appointed as a lay magistrate. There seems to be a reciprocal arrangement that is not entirely acceptable.

My final point concerns the residence qualification. The person is required to reside or work within 15 miles of the county court division. There is no reference to whether that place of residence or work should be within the United Kingdom. That could involve our only land border, so a little more care should have been taken with the drafting. I am not sure that if someone were to be appointed as a magistrate who, although within 15 miles of the relevant country court division, lived within the Republic of Ireland, that appointment would be seen to be without a degree of prejudice under the circumstance that, unfortunately, prevail.

None of the matters that I have raised, although serious, causes me to want to vote against the order. It is important, as we all recognise, that the process that has come out of the Good Friday agreement should continue in good order. However, I wish that Departments of State would take a little more care about the orders that they produce, particularly when they concern matters of high sensitivity, which this undoubtedly does. The hon. Member for Thurrock has made some extremely good points, which the Minister would do well to recognise and to reinforce in his Department in the inevitable aftermath of this relatively brief debate.

5.12 pm

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