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Lord Goodhart moved Amendment No. 70:


The noble Lord said: This amendment takes us away from fines officers and deals with an entirely different subject. Clause 36(1) provides that,


    "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 . . . that local authority . . . a committee or officer of that local authority";

and there is a third category that I need not go into. Frankly, that seems to be a statement of the obvious.

Subsection (2) goes on to apply the same principle to,


    "A lay justice who is a member of the Common Council of the City of London",

and subsection (5) provides that,


    "No act is invalidated merely because of the disqualification under this section of the person by whom it is done".

The purpose of the amendment is to remove subsection (5). It seems to me that there can be no doubt in the mind of a justice of the peace who is a

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councillor as to whether he is disqualified or not. It must be perfectly obvious whether there is a party to whose case he should not listen.

It seems to me that if a justice of the peace who is disqualified sits, the tribunal effectively cannot be impartial for the purposes of Article 6 of the Human Rights Convention. If this House took a decision in the Pinochet case to set aside a decision because a member of the Appellate Committee sat when he had failed to disclose an interest, the same principle should apply to the magistrates' court and someone who plainly has an interest should be disqualified from sitting. If a justice of the peace sits when he or she is expressly disqualified under the clause, the hearing should be treated as a nullity. Validation under subsection (5) is unacceptable.

The issue was originally raised by the Joint Committee on Human Rights, in its first report of the Session. In the fourth report, which was published today and to which I referred earlier in another context, the committee accepted that there was no issue under Article 6.1. Paragraph 28 of the report said:


    "In his reply, the Lord Chancellor explained that in the Government's view the word 'merely' would have the effect of still allowing an adjudication to be quashed when required by ECHR Article 6.1 or the common law rule against bias, while avoiding invalidity where the sitting of the disqualified JP was not incompatible with any other rule of law. The Government's response adequately answers our concern, and in our view means that the provision in clause 36 of the Courts Bill would not give rise to any significant risk of incompatibility with Article 6.1".

It says in subsection (5) that no act is invalidated,


    "merely because of the disqualification under this section of the person by whom it is done".

I am reluctant to disagree with the Joint Committee on Human Rights on an issue of this kind, but in this case it has allowed itself to be too easily persuaded. It is extremely difficult to see how a tribunal containing a JP who has been disqualified under Clause 36(1) could ever be independent and impartial. The Lord Chancellor's letter, which is published as an annex to the committee's report, suggests that participation of a disqualified JP in an interlocutory hearing would not violate the convention, but that would surely depend on the nature of the decision that was taken at the interlocutory hearing. It could well contravene Article 6.

Subsection (5) would require a party complaining about the presence of a councillor on the tribunal to bring new proceedings, which might have to investigate the circumstances of the decision in the original proceedings to discover whether the tribunal was independent and impartial. That would be complicated, expensive and difficult. How could the court, for example, investigate whether other members of the bench in the original case had been influenced by the disqualified member? It would be much simpler and fairer for all concerned to say that proceedings in which a JP sits, when he or she is disqualified under Clause 36, are a nullity.

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I hope that the Joint Committee on Human Rights and the Government will reconsider the issue and conclude that subsection (5) is not appropriate to be included in the clause. I beg to move.

7.15 p.m.

Lord Renton: I warmly support the noble Lord, Lord Goodhart, in moving the amendment. One might refer to the fallacy that the amendment presents without any reference to the human rights factor that he zealously mentioned. Subsections (1) and (2) of the clause say:


    "A lay justice . . . may not act as"—

and the reasons are given. In subsection (5), we find that:


    "No act is invalidated merely because of the disqualification under this section of the person by whom it is done".

Therefore, subsection (5) is inconsistent with subsections (1) and (2). If it remains, we should have enacted a contradiction, which is something that one should never do. Indeed, to go a little further and borrow the phrase used by the noble Lord, Lord Goodhart, we would be enacting a nullity.

Lord Donaldson of Lymington: I support the amendment, but I have at the back of my mind a difficulty. In the rule of public law, decisions by officers who prima facie have authority to act stand until set aside. That is a valuable provision in many circumstances. I support the amendment and hope that the Government may give some thought to how they might provide that the disqualification produces an avoidable situation rather than a complete nullity.

I want to change the situation. I should have looked into the following matter, but this will save me writing a letter. Will the Minister or her staff look into the question of what is meant by the court of the,


    "Common Council of the City of London"?

I have had some connections with the court of Common Council. I knew of a lady who was elected to it as a "common councilman". That has some relevance to a later amendment. I understood that when she went to the court of aldermen, she left the court of Common Council. However, there may be some statutory provision that says that the court of Common Council for some purposes includes the court of aldermen. It must be remembered that all members of the court of aldermen are lay magistrates.

Lord Clinton-Davis: I, too, am troubled by subsection (5), which appears to be in stark contradiction to what is said before. I am sure that my noble and learned friend can draw a distinction, but I am not wise enough to see what that is at this stage.

The point made by the noble Lord, Lord Renton, is profound. There is nothing here that should divide us politically, as it is purely a drafting matter. On the face of it, does not subsection (5) contradict everything said in subsections (1) and (2)?

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Baroness Anelay of St Johns: I shall not spoil the proceedings. I, too, support the amendment for lay reasons rather than those adduced by the lawyers who took part in the debate.

We are talking about disqualification of lay justices who are members of local authorities. I make the obvious point that the Explanatory Notes state:


    "This clause makes the same provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority".

Is it already the case that if a magistrate acts in such cases, even though disqualified, the decision taken stands? Is it a case of repeating the current position? If that is the case, how many times has it been discovered that the rules have been broken? I am rather puzzled that no one would have noticed that situation. The court officials who make up sittings rosters would surely know who the members of local authorities were and would not roster those people to sit when a case involved those local authorities.

Like other speakers, I accept that the aim is to try to avoid bad practice in these cases. A decision that is taken in a local authority case by someone who is a member of the relevant local authority may not necessarily be a bad decision, but no one knows that as no one knows the grounds on which it was taken. The noble Lord, Lord Goodhart, mentioned that matter. Therefore, such a decision would not earn the respect and trust of the public.

I deployed a similar argument when we discussed a similar provision during the passage of the Ofcom Bill which concerned the way in which Ofcom boards operated. I lost the argument on that occasion. I hope that given the arguments deployed by lawyers such as the noble and learned Lord, Lord Donaldson, we shall achieve the right result today. As my noble friend Lord Renton said, subsections (1) and (5) appear to be in conflict. I assume that subsection (1) tells us what we should not do and subsection (5) tackles the actions of those of us who are bad enough to do what we should not do. I revert to the nub of the matter; namely, that a decision regarding a local authority that is taken by someone who is a member of that local authority should not stand as it would not earn the respect of the people who use the justice system.

Lord Renton: Before the Minister replies, I hope that I may point out that the Explanatory Notes contain a very short description of this fairly long clause which states:


    "This clause makes the same provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority".

However, subsection (5) of Clause 36 states:


    "No act is invalidated . . . because of the disqualification under this section of the person by whom it is done"

We are in an absurd position.


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