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Baroness Scotland of Asthal: I understand the anxiety expressed by Members of the Committee in relation to the issue we are discussing. However, I say

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straight away that I agree with the committee that has not been prevailed upon to reach the view that the provision is appropriately phrased but has reached that view because it is right so to do. I understand that the noble Lord, Lord Goodhart, does not agree with the committee's conclusions but I respectfully say that the Government do. I shall explain why.

The noble Lord, Lord Goodhart, rightly raised the issue as a matter of concern. I hope that I shall be able further to explain the matter. As Members of the Committee are aware, the phrase in question is a re-enactment of Section 66(6) of the Justices of the Peace Act 1997 and is a standard inclusion in disqualification clauses. The motive behind the amendment is a fear that the inclusion could be incompatible with Article 6 of the European Convention on Human Rights which gives the right to an impartial tribunal. There may be a misunderstanding here of the effect of the phrase and the interaction between the statutes. As the noble Lord, Lord Goodhart, said, the Joint Committee on Human Rights raised a similar point and we offered it reassurances which I am happy to repeat now.

We respectfully suggest that the phrase should remain part of the Bill. The use of the word "merely" in the clause is crucial. If a local authority justice were to adjudicate where Article 6 of the Human Rights Act is engaged and in circumstances where that article is violated by his doing so, that would be unlawful by reason of Section 6 of the Human Rights Act 1998. But where he or she acts in circumstances that do not engage the article, or where the participation does not violate it—for example, at an interlocutory hearing—the subsection provides that this action will not be invalidated merely because of the disqualification. If no violation or engagement of Section 6 occurs when a lay magistrate takes certain judicial decisions proceedings, those decisions should stand. It will always be open to a party to appeal if it is felt that Article 6 bites in any instance. But where no prejudice is caused by the magistrate's interest, it is unreasonable, burdensome and an unsound principle to invalidate judicial decisions.

Clause 36(5) does not, therefore, override the requirements of impartiality imposed by Article 6 of the European Convention on Human Rights or by English common law—I believe that the noble Lord, Lord Renton, expressed anxiety in that regard—nor does it purport to do so. We are satisfied that it could not be interpreted in that manner. I hope that I have better explained why we say that there is no contradiction as between subsections (1) and (2) and subsection (5).

Baroness Anelay of St Johns: I am grateful to the noble Baroness for giving way. Before she leaves that subject, I wish to ask a question which may have a completely obvious answer. If that is the case, I apologise in advance. The noble Baroness seeks to reassure the Committee by explaining carefully that there is a get-out provision here; that is, a process of appeal if partiality has been involved. However, decisions taken by magistrates are taken in private in

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a retiring room. How do the Government anticipate that an aggrieved person will be able to produce evidence that partiality has been shown?

Baroness Scotland of Asthal: It would depend on the person making the challenge. The noble Baroness will know that there may be cases where none of those participating is immediately aware that a magistrate has an interest in the case. However, everyone is content with the proceedings and there is no reason to seek to overturn the relevant decision. If, however, a party becomes concerned that a magistrate should have been disqualified, the provision we are discussing provides an avenue through which the decision is voidable but it is not void from the beginning. The provision enables the matter to be brought to the attention of the court. The court can determine whether there has been impropriety and can strike down a decision. However, there would have to be a reason for striking down a decision, not merely because technically an infringement had occurred. I must stress the importance of the word "merely" in this regard.

Lord Clinton-Davis: I am persuaded by my noble friend's argument but I am not persuaded that we cannot improve on the wording of the provision. There is nothing between us. Will my noble friend take the measure away and reconsider it? That is all we ask. I shall not vote against the Government; I love the Government. I ask my noble friend to reconsider the matter. It is an important matter. There should be no room for doubt.

7.30 p.m.

Lord Renton: Before the noble Baroness replies—naturally I listened to her very carefully—I want to support what was said by the noble Lord, Lord Clinton-Davis. The heading of the clause is:

    "Disqualification of lay justices who are members of local authorities".

However, subsection (5) states:

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

That person could be a lay justice.

Baroness Scotland of Asthal: I understand the anxiety, but perhaps I can give an example that is in parallel with the matter, although not exactly the same. Members of the Committee will know that it is important that lay justices be British. That is the condition that we have at the moment. Decisions made by magistrates found to be disqualified by reasons of nationality before that discovery should stand unless the disqualification has prejudiced a party.

A number of lay magistrates found themselves in that difficulty. They had lived here for many years and assumed they were entitled to be magistrates. No one for a second cast any aspersion on the nature of their

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judgment, but they were in due course found to have been disqualified. That is a parallel position, and there is no problem.

Lord Hunt of Wirral: As I read subsection (5), it is a "disqualification under this section", not in the circumstances that the Minister outlined. That is why a number of us strongly support the words of the noble Lords, Lord Renton and Lord Clinton-Davis.

Baroness Scotland of Asthal: I gave a parallel example of a disqualification that does not impinge on the quality of the decision. I simply sought to assist the Committee to understand why having a disqualification may not impinge on the decision.

I understand the points made by Members of the Committee. We are content both with how the clause is phrased and that we have the support of the Committee in relation to the matter. However, nothing is lost by looking and checking to make sure that the drafting is as good as it can be, so I will happily do that. At the moment, my limited ingenuity does not let me envisage how it can be improved, but I am very fallible, and I am sure that others can do far better.

Lord Goodhart: I am grateful to have had support for the amendment from both sides of the Committee. I am particularly grateful to the noble and learned Lord, Lord Donaldson of Lymington, for pointing out what was not an error in the amendment but in how I presented it.

I accept that a decision taken by a disqualified justice of the peace or a tribunal that includes one should not be regarded as a nullity but as a decision that is voidable. That is in accordance with the common law principle that a decision taken by a judicial body that appears to be properly constituted is treated as valid unless and until it is challenged. However, that does not remove in any way the need for the amendment. The vice of subsection (5) would be to prevent people being able to set aside decisions taken by a disqualified magistrate or a tribunal that includes one.

The Minister referred to the fact, which is of course true, that the provision repeats a subsection in the Justices of the Peace Act 1997. That is not an adequate reason to retain a similar provision in the Bill. It was wrongly conceived to start with. Let us suppose that someone had been disqualified expressly by a provision in a Bill in circumstances in which, if they were not disqualified, there would be reason to believe that they might be an interested party. In those circumstances, it is plainly right that the decision should be capable of being set aside, whether or not it infringes the Human Rights Act. The case for not including subsection (5) is made much stronger by the passage of that Act. A very large proportion of the cases in which a disqualified magistrate has sat could be set aside anyway, because of a conflict with that Act.

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That being the case it seems in everyone's interests if, instead of having to show that in an individual case there was some reason to believe that the tribunal was impartial, we simply recognised the fact that if a decision was taken by a tribunal that included a JP who was disqualified, it should be capable of being set aside on that ground without anyone having to undertake any further investigations.

The Minister raised a point about the validation of decisions taken by a magistrate who turned out to be disqualified because of being a foreign citizen. That matter is entirely different, and is dealt with by Clause 37. We have not tabled an amendment to that clause, because we recognise that there will be no or very few cases where the disqualification would render the tribunal anything other than independent and impartial. The technicality is purely to do with the way in which the JP was appointed. It is perfectly possible that, in every such case, the tribunal would not only be but be seen to be independent and impartial, notwithstanding a technical defect in the method of appointment. The two cases are miles apart.

The amendment is important, and I have every intention of bringing it back on Report.

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