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Mr. Deputy Speaker (Sir Alan Haselhurst): The right hon. Gentleman has been helpful in setting out that point, and there is very little that I can add, other than that the Speaker would have to be consulted about any such arrangement.

Schedule 3

Appointment to listed judicial offices

Amendments made: No. 5, in page 77, line 8, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".
No. 6, in page 77, line 11, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".—[Mr. Browne.]

Mr. Browne: I beg to move amendment No. 105, in page 77, line 23, leave out "expenses" and insert "salaries".

Mr. Deputy Speaker: With this it will be convenient to discuss Government amendment No. 155.

Mr. Browne: Post devolution of criminal justice, determination of judicial salaries is to remain an excepted matter, but the remuneration will be paid from the Northern Ireland Consolidated Fund rather than the United Kingdom Consolidated Fund. Paragraph 10 of the schedule amends section 168(2) of the Magistrates' Courts Act (Northern Ireland) 1964, which provides for the payment of salaries to resident magistrates. The original drafting of the paragraph referred to the payment of "expenses" being transferred from the United Kingdom Consolidated Fund to the Northern Ireland Consolidated Fund. The amendment, which is technical, reflects the fact that the payment of salaries will be transferred by the Bill.

Amendment No. 155, which is also technical, provides for removal of the revocation of section 75(1) of the Judicature (Northern Ireland) Act 1978, which deals with the appointment of the official solicitor. Post devolution, it is intended that the office of official solicitor will be removed from the list of statutory officers in schedule 3 to the 1978 Act, as the status of the statutory officer will be confined to posts of an inherently judicial character. The official solicitor post is not of that character.

The removal will be achieved by subordinate legislation, which is the point of the amendment. In anticipation of that change, it is necessary to retain section 75(1) of the 1978 Act, which provides for the official solicitor's appointment by the Lord Chancellor after consultation with the Lord Chief Justice. As drafted, the Bill did not achieve that objective, and this technical amendment is designed to put that right. That is what it achieves and I commend it to the House.

Amendment agreed to.

Mr. Browne: I beg to move amendment No. 106, in page 82, line 23, leave out "subsections (2) and (11)" and insert "subsection (2)".

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendments Nos. 107 to 109.

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Amendment No. 33, in clause 10, page 8, line 6, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 34, in page 8, line 9, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Amendment No. 31, in page 8, line 9, leave out from "Chancellor" to end of line 12.

Amendment No. 32, in page 8, line 13, leave out subsection (3).

Amendment No. 35, in page 8, line 17, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 36, in page 8, line 18, at end insert—

'( ) No order under this section may be made without the agreement of the Lord Chief Justice.'.

Amendment No. 74, in page 8, line 27, after "body", insert "or".

Amendment No. 71, in page 8, line 30, leave out from "creditors" to end of line 31.

Amendment No. 43, in page 8, leave out lines 32 and 33.

Amendment No. 72, in page 8, line 34, leave out—

'"Prescribed" means Prescribed in the Order'

and insert—

'Notwithstanding subsections (4) and (5), a person shall be disqualified from appointment as a lay magistrate if he has at any time been convicted in Northern Ireland or elsewhere of a criminal offence'.

Amendment No. 37, in page 8, line 41, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Amendment No. 73, in page 8, line 41, at end insert—

'10A The Lord Chancellor must remove any Lay Magistrate from Office if they have at any time been convicted in Northern Ireland or elsewhere of a criminal offence.'.

Amendment No. 38, in page 8, line 42, leave out "Lord Chancellor" and insert—

'First Minister and deputy First Minister acting jointly'.

Amendment No. 39, in page 8, line 42, leave out "he" and insert "they".

Amendment No. 40, in page 8, line 43, at end insert—

'out of money appropriated by Act of the Assembly'.

Government amendments Nos. 111 to 118.

Amendment No. 41, in schedule 4, page 83, line 43, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Government amendment No. 119.

Amendment No. 42, in page 84, line 5, leave out "Lord Chancellor" and insert "Lord Chief Justice".

Government amendments Nos. 120 to 122, 124, 123, 125 to 130 and 156 to 163.

Mr. Browne: The amendments are technical and concern the role and functions of lay magistrates. The criminal justice review recognised the role lay people could play in the justice process. It did not recommend major changes, but proposed removing residual criminal justice functions from justices of the peace, while consolidating the role of the new category of lay magistrates. Of course, as hon. Members know, the position of lay magistracy in Northern Ireland is rather different from that in England and Wales. England and

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Wales have a small number of stipendiary magistrates, but professional resident magistrates in Northern Ireland are the norm rather than the exception. Lay people continue to have a role in the system, however, notably by participating in youth courts.

Amendments Nos. 106 and 107 reorder the Bill to make it clear that when responsibility for paying allowances to lay magistrates transfers to the First Minister and Deputy First Minister under devolution, they must act jointly.

Amendments Nos. 108 and 109, which are technical and consequential to an amendment made in Committee, require that order-making powers relating to community safety be subject to affirmative resolution. As a result, on devolution, an order made by the First Minister and Deputy First Minister concerning eligibility to be a lay a magistrate must be subject to affirmative resolution in the Assembly. Order-making powers relating to community safety will remain subject to scrutiny in Westminster.

Amendment No. 111 allows the Lord Chief Justice, lord justices of appeal, High Court judges and county court judges to exercise all the functions of a lay magistrate. Currently, all those judicial offices are ex officio justices of the peace, and as such they can exercise all the functions attaching to those offices. Given that the majority of criminal justice functions will transfer from JPs to lay magistrates, we want to ensure that the judicial offices that I have mentioned can exercise the functions that will be transferred to lay magistrates.

Amendment No. 112 reflects the review's recognition of the important role that lay persons fulfil in the justice system. The new office of lay magistrate will assume most of the functions currently performed by justices of the peace and members of the juvenile court lay panel, and will be a listed judicial office as defined in schedule 1 to the Bill. The amendment is technical and defines the range and nature of functions to be transferred from justices of the peace to the new office of lay magistrate.

6.45 pm

In the main, those functions, which are currently performed by justices of the peace, relate to hearing complaints and first remands in special courts, with a view to issuing warrants and summonses. The amendment also identifies a number of related and ancillary powers arising from those functions. Schedule 4, which contains amendments consequential on the clauses relating to lay magistrates, deals with those functions in more specific terms. I should point out that lay magistrates will also perform certain other functions currently undertaken by lay panellists in the youth and family proceedings courts. They are of course addressed by clause 12.

Amendment No. 163 is consequential on amendment No. 112. It will amend clause 89 and include the Lord Chancellor's order-making power under clause 11(2)(b), thereby ensuring that it is subject to scrutiny by both Houses.

I have been asked to address amendment No. 123 in particular. The definition of a court of record in the relevant section is used for the purpose of conferring a power to bind over. Magistrates courts already have specific power to bind over by virtue of the Magistrates' Courts (Northern Ireland) Order 1981, so there is no need

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for the definition in schedule 4 to include a magistrates court. The provision is unnecessary and would constitute a duplication.

Opposition amendments Nos. 31 to 41—which would transfer powers from the Lord Chancellor to the First Minister, Deputy First Minister or Lord Chief Justice—may be based on a misconception. They were tabled in Committee, and for reasons that I shall come to shortly, I am slightly disappointed to see them again. I gave a lengthy explanation in Committee, on being asked to do so, of how the Bill's provisions are intended to work before and after devolution.

Clause 10 deals with the position before devolution, when the power will remain with the Lord Chancellor. Post devolution, the same appointment and removal provisions as apply to the lay magistracy will apply to other judicial tiers. At that point, responsibility will transfer from the Lord Chancellor to the First Minister and Deputy First Minister by means of a transfer of functions order under section 86 of the Northern Ireland Act 1998.

On turning to schedule 1, hon. Members will notice that the office of lay magistrate is included in the list of judicial offices which, on devolution, are subject to the Judicial Appointments Commission and removal tribunals. For that reason, and in the light of the lengthy explanation that I gave in Committee—the House would not thank me for repeating it—I ask that amendments Nos. 31 to 41 be withdrawn.

Amendments Nos. 41 and 42 would give the Lord Chief Justice an order-making power—which the Bill currently gives the Lord Chancellor—to amend any provision relating to the transfer of functions of the justice of the peace. I am fascinated by the idea of an order-making power exercisable by a judge, and I congratulate the hon. Member for Reigate (Mr. Blunt) on this exciting constitutional innovation, particularly in the light of the need for parliamentary scrutiny of provisions at the highest level. However, I doubt whether the British constitution is quite ready for it.

The review recommended that the criminal justice functions of the justice of the peace be undertaken by the new office of lay magistrate. The Bill accordingly sets out the likely qualification requirements for that post. Amendment No. 43 would remove the Lord Chancellor's discretion in applying those qualifications. The Lord Chancellor has, and will continue to have, that discretion in making justice of the peace appointments in England and Wales.

If the amendment were accepted, the Lord Chancellor would be unable, for example, to appoint as lay magistrate an otherwise excellent candidate who lived five miles beyond a prescribed distance outside the county court division in question. Although it is important that lay magistrates reside in, or work in, their county court division, it is surely possible for hon. Members to envisage situations in which that might not be the case. Would they want to lose such a person's expertise? Flexibility is a vital part of any eligibility criteria, but the amendment would remove it. I therefore ask that it be withdrawn.

Amendments Nos. 74, 72 and 71 would remove conviction of a prescribed offence as a potential bar to being appointed as a lay magistrate and replace it with conviction of a criminal offence—any criminal offence.

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In addition, amendment No. 73 includes a removal provision, requiring the Lord Chancellor to remove a lay magistrate if he has been convicted of a criminal offence. It is worth noting that there are currently no absolute bars to people with convictions being appointed as a judge in England and Wales or in Northern Ireland. The review made it clear that lay magistrates should be considered part of the judiciary. It would therefore be contrary to the spirit of the review to impose a higher standard on lay magistrates than on other judicial tiers.

In any case, the amendments are unnecessary. I am not convinced of the case for lifting the potential bar on individuals convicted of a prescribed offence and replacing it with the much wider power to remove anyone guilty of a criminal offence. That would mean that the Lord Chancellor would have to remove from office an otherwise excellent appointee who had been convicted of a minor motoring offence.

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