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Baroness Scotland of Asthal: In drafting this clause, we envisaged that arrangements for magistrates to sit outside their local justice area could be made informally by court officials. The phrase "or on behalf of" was intended to cover the eventuality that a relevant court administrator might be a contractor. It is arguable that the amendment, if accepted, could potentially hamper the administration of the courts by preventing contracted-out court staff from making these arrangements. That would be inconsistent with Clause 2 of the Bill.

We have given assurances that use of the wider jurisdiction will not go against magistrates' wishes. I should like to repeat some remarks which the Lord Chancellor made last year to the Magistrates' Association annual general meeting. He said:

We envisage a case similar to that in the Court Service. If one area is under pressure, it may be possible on an ad hoc basis to ask a magistrate whether they would be so kind as to sit for a short period elsewhere, particularly if it is near their place of work or something of that nature. It is not intended that magistrates would be obliged in any way to sit in an area in which they did not agree to sit.

Lord Waddington: I am a little puzzled. When I talked about Clause 5, which referred to advice to the Lord Chancellor, I suggested that in practice the court administration council would give its advice to the agency chief officer. On Clause 10, I am therefore not sure what is the point of the "or on behalf of". When arrangements are made by the Lord Chancellor, surely they can be made by an officer of the agency who is, as it were, his alter ego. Have I got that wrong? I am interested in the constitutional significance of setting up such an agency. I would have thought that any officer of the agency could act for the Lord Chancellor. In that case what is the point of those words?

Baroness Scotland of Asthal: As I tried to make clear, the words cover the eventuality that a relevant court administrator might be a contractor. That would be very rare, but it might be the case. If it were, it would enable the administrator to make such an arrangement. It is not proposed that that is likely to happen often or at all; the words merely provide for it as an eventuality.

Baroness Seccombe: That is a very intriguing response. It seems that it puts the power for

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magistrates to sit in other areas in the hands of court officials, with no mention of the chairman of the Bench being involved.

Baroness Scotland of Asthal: Of course, the normal consultation would continue. At the moment, it is very difficult for a magistrate in one area to assist in another court to which they are not assigned. One of the joys of the national nature of the jurisdiction will, we hope, be greater mobility for the magistracy and the greater use to be made of its valuable resource.

I am sure that the noble Baroness will know of a number of instances where a magistrate will say, for example, "I cannot sit in my local area because I have relocated for employment purposes from Suffolk to London. I still live in Suffolk but I work in London. Although I could sit for you in an area close to my work for half a day or in the afternoon, I cannot sit elsewhere". We will be able to make arrangements that we hope will suit magistrates, take advantage of their expertise and make the system work more easily. That has worked well in the Court Service.

Baroness Seccombe: I thank the Minister for that reply. We must obviously think hard about this matter and shall consult the Magistrates' Association. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Clause 10 agreed to.

Clause 11 [Retirement and removal of lay justices]:

Lord Goodhart moved Amendment No. 42:

    Page 5, line 27, leave out "Chancellor" and insert "Chief Justice"

The noble Lord said: Subsection (6) of Clause 11 provides that:

    "The Lord Chancellor may remove a lay justice from his office by an instrument on behalf and in the name of Her Majesty . . . on the ground of incapacity or misbehaviour, or . . . if he is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions as a justice of the peace".

That power caused some concern to the Joint Committee on Human Rights, which said in paragraph 33 of its report on this Bill:

    "At present, the Lord Chancellor can dismiss a JP at will. That gives rise to a risk that a JP might be regarded as insufficiently independent of the executive to ensure that litigants are receiving a hearing by an independent tribunal as required by ECHR Article 6.1. Clause 11(6) would restrict the Lord Chancellor's power of removal somewhat. There remains a potential problem of institutional independence, as the person making the decision to remove a JP would be a member of the executive—in fact, a Cabinet Minister".

The amendment has been tabled in order to raise with the Government the concerns of the Joint Committee on Human Rights and to hear what response they make. In the amendment, we have proposed that the power to remove a JP from office should be conferred not on the Lord Chancellor but on the Lord Chief Justice, who is plainly an independent person with no role as a member of the executive.

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I recognise that subsection (6) imposes some restrictions on the present powers of the Lord Chancellor. I also recognise that a decision of the Lord Chancellor under subsection (6) would plainly be judicially reviewable. However, I believe that there is some force in the comments of the Joint Committee on Human Rights and certainly, prima facie, it would seem that it is inappropriate for a member of the executive to be in a position to remove from office a member of the judiciary. I beg to move.

Lord Renton: I support the amendment moved by the noble Lord, Lord Goodhart, mainly for the reasons that he has given. But I wish to add two short points in addition to those arguments. The first is that the responsibilities of the Lord Chancellor seem to increase with every Session of Parliament. Indeed, I believe that in the years to come the Lord Chancellor will need to have a ministerial deputy with very heavy responsibilities. Of course, one does not know who it may be. That is my first point in favour of the amendment.

The other point is that the removal of a lay justice on grounds of incapacity or misbehaviour or because,

    "the lay justice is declining or neglecting to take a proper part in the exercise of his functions",

brings one to the administration of criminal law. It is the Lord Chief Justice who, above all other members of the judiciary, is responsible for the administration of the criminal law. Therefore, I believe that it would be much more appropriate for the Lord Chief Justice to bear the responsibility for removing a lay justice, who deals only with criminal law and some other minor matters, such as granting licences for the drinking of alcohol.

9.45 p.m.

Lord Donaldson of Lymington: This is a very wide question. As I recollect, the position is that circuit judges are liable to removal by the Lord Chancellor, for reasons which may not be exactly the same but in substance are the same. If we are to say that it is necessary in this case for the Lord Chief Justice to be the remover, the same must be true—at least I think it must be true—for circuit judges. That would be a constitutional amendment of considerable importance. The views of the Strasbourg court as outlined in the case concerning the Channel Islands are good theory but are they good practice? It may be that one would have to look carefully at how the European Convention on Human Rights fits in with this.

The point I make is that this is a much wider question. Before we make this amendment I believe that some consideration must be given to the position of circuit judges.

Lord Borrie: The noble and learned Lord, Lord Donaldson of Lymington, is right in relation to circuit judges. I believe the relevant Act was the Courts Act 1971. However, Clause 17 of this Bill deals with district judges. There is provision for appointment by the Lord

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Chancellor and a subsection which provides for removal by the Lord Chancellor for incapacity or misbehaviour, which are the precise words contained in this clause.

I share with the noble Lord, Lord Renton, the view that the Lord Chief Justice is an incredibly important person in the administration of criminal justice. However, so far as I know he has never been directly involved in, as distinct from being consulted on, the appointment of judges at any level. He does not have the machinery, office and so forth to deal with that, whereas the Lord Chancellor's Department does.

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