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Lady Hermon: The Minister makes a good point, in that an offence attracting a sentence of imprisonment, whether suspended or not, is clearly serious; but we are talking about people who are responsible for the administration and carrying out of criminal justice functions.
We have a criminal justice review, whose aims were stated in the Belfast agreement. One of those aims was the production of a criminal justice scheme that had
- "the confidence of all parts of the community".
- "that a person may not be appointed to be a lay magistrate"
- "a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors"
- "if he has been convicted of a prescribed offence".
- "prescribed in an order issued by the Lord Chancellor".
Mr. Browne: Let me first deal with the points made by the hon. Member for North Down (Lady Hermon).
The purpose of amendment No. 112 is to describe the functions of justices of the peace that are being transferred to lay magistrates. That transfer was always intended. It was recommended by the review, and it is what the Bill seeks to achieve. The amendment's aim is simply to set the functions in statute, rather than to confer more powers on anyone, in terms of judicial functions, than was always intended and made clear in the Bill. These functions have never been set out before.
Both in Committee and today, the hon. Lady and I have discussed her attempts to include in the Bill a number of counsels of perfection in relation to behaviour.
Our debates have been energetic, and the hon. Lady has pursued them consistently and appropriately, but I think I have dealt with the issues that she has raised. She seeks to create circumstances in which I think it would be almost impossible to persuade anyone to take on the job of lay magistrate. If people were to be automatically removed from the job after being convicted of careless driving, with all the attendant publicity, it would surely be difficult for them to accept the post.I accept that certain types of offence should exclude people, and the Bill reflects that. In other circumstances, however, there must be a degree of flexibility. People can accumulate criminal records and convictions for comparatively minor behaviour. We drive motor vehicles; we have a statutory structure, built up over the years, to protect people, but also to generate circumstances in which such matters as insurance can be resolved.
I cannot put the arguments to the hon. Lady better than I have already. I know that they disappoint her, but I do not think that it would work if any minor offence automatically barred people from such a position or removed them from it, particularly when judges higher up the judicial ladder, carrying out functions that were far more important and onerous, could have committed just such an offence.
I turn finally to the points made by the hon. Member for Reigate (Mr. Blunt). The reason for my puzzlement in this very technical area is that I accept that sometimes it takes more than one saying to get the point across. It must have been my fault, but I did not at first understand the hon. Gentleman's point. It was not that I did not know the answer—I did not even know whether I knew the answer as I did not understand the point. However, I think that I have encapsulated his first point in my head and that I understand the answer.
The hon. Gentleman wanted to know why the provisions in paragraph 41 of schedule 3 are not in the body of the Bill. As he rightly identified, the provisions are intended to enable the necessary changes to be made when devolution takes place. They could have been put in the main part of the Bill but if they had been, they would have to be capable of being read in two different ways—pre and post-devolution. Alternatively, they could have been implemented under an order under section 86 of the Northern Ireland Act 1998, as we have discussed before. On this occasion, however, the draftsman chose to incorporate these provisions under paragraph 41 of schedule 3, which will become effective post-devolution.
The hon. Gentleman's other substantive question was who could dismiss the judicial office holders post- devolution. It would be the First Minister and Deputy First Minister.
Mr. Blunt: I am grateful to the Minister for that explanation. Will he address amendments Nos. 31 and 32 about the need for lay magistrates to be trained before they are appointed?
Mr. Browne: I am afraid that this comes down to the old flexibility argument again. It is difficult to predict at this stage exactly what the demand will be for lay magistrates. If they are to be trained, we might not be able to train them all at the same time. We need a degree of flexibility.
I accept the merit in the hon. Gentleman's argument and I hope that once the original difficulties are seen through and the change takes place, the norm will be that
people will not exercise this function until they have been trained to do so. However, I cannot guarantee, in all situations, that the demand for lay magistracy and magistrates courts hearings will be such that they can be serviced in a transitional period, and flexibility will be required. I take on board what the hon. Gentleman says and will bear it in mind. We have been able to do something about a situation when we looked at the figures in more detail on previous occasions and I will consider whether that is possible in this respect.Amendments made: No. 107, in page 82, line 24, at end insert—
'(4) In subsection (5), for "Lord Chancellor otherwise determines" substitute "First Minister and deputy First Minister, acting jointly, otherwise determine".
(5) In subsection (11)—
(a) for "Lord Chancellor" substitute "First Minister and deputy First Minister", and
(b) for "he may" substitute "they may jointly".'.
No. 108, in page 82, line 25, leave out from beginning to "(within" in line 27 and insert—
'(1) Section 89 is amended as follows.
(2) After subsection (1) insert—
"(1A) An order under section 10(4) shall be subject to affirmative resolution".'.
No. 109, in page 82, line 28, at end insert—
'(3) In subsection (3), omit "10(4) or".'.—[Mr. Browne.]
Amendment made: No. 110, in page 7, line 24, leave out Clause 9.—[Mr. Browne.]
Clause 10
Amendment made: No. 111, in page 8, line 43, at end insert—
'(11A) The Lord Chief Justice, Lords Justices of Appeal, judges of the High Court and county court judges may exercise any function of a lay magistrate (in relation to any matter arising within any county court division).'.—[Mr. Browne.]
Clause 11
Amendments made: No. 112, in page 9, line 10, leave out from "from" to end of line 14 and insert—
'a function to which subsection (2A) applies.
(2A) This subsection applies to—
(a) any function of issuing a warrant or summons,
(b) any function of remanding an accused who has not previously been remanded for the offence,
(c) any function of ordering a person to enter into a recognisance to keep the peace or to be of good behaviour,
(d) the function of committal under section 21 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)) (offence during suspended sentence etc.),
(e) the function of committal under Article 5 of the Treatment of Offenders (Northern Ireland) Order 1976 (S.I. 1976/226 (N.I. 4)) (offence after early discharge),
(g) any function relating to adjournment of, or any other ancillary matter concerning, such proceedings,
(h) the function of granting a criminal aid certificate in respect of a person where the lay magistrate is dealing, or has previously dealt, with him by virtue of paragraph (b), (c) or (f), and
(i) the function of granting a criminal aid certificate in relation to an appeal against anything done by a lay magistrate by virtue of paragraph (c) or (f).
(2B) The Lord Chancellor may by order amend subsection (2A).'.
No. 7, in page 9, line 18, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".—
No. 113, in page 82, line 35, at end insert—
'(za) sections 79 and 80 of the Harbours, Docks, and Piers Clauses Act 1847 (c. 27) (appointment and dismissal of harbour police),'.
No. 114, in page 82, line 36, leave out paragraph (a).
No. 115, in page 83, line 2, at end insert—
'(ca) section 23(1) of the Government Annuities Act 1929 (c. 29) (confirmation of declaration),'.
No. 116, in page 83, line 14, at end insert—
'(ha) section 57 of the Civil Aviation Act 1982 (c. 16) (appointment and swearing in of constables),
(hb) section 1(2)(c) of the Ministry of Defence Police Act 1987 (c. 4) (declaration by members of Ministry of Defence police force),'.
No. 117, in page 83, line 34, after "peace" insert "or magistrates" courts".
No. 8, in page 83, line 35, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".
No. 118, in page 83, line 41, at end insert—
'(c) Article 44 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).'.
No. 119, in page 84, line 2, leave out—
'which confers or imposes a function on justices of the peace'.
No. 9, in page 84, line 11, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".
No. 10, in page 84, line 15, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrates".
No. 120, in page 84, line 24, at end insert—
'8A In section 26(4) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) (administration of oaths), after "upon a" insert "lay magistrate or".
8B In section 189(1) of the Army Act 1955 (c. 18) (certificates of arrest or surrender of deserters and absentees), after "justice of the peace" insert "or (in Northern Ireland) resident magistrate".
8C In section 189(1) of the Air Force Act 1955 (c. 19) (certificates of arrest or surrender of deserters and absentees), after "justice of the peace" insert "or (in Northern Ireland) resident magistrate".
8D In section 47(2) and 110(2) of the Naval Discipline Act 1957 (c.53) (certificates of arrest and surrender), after "justice of the peace" insert "or (in Northern Ireland) resident magistrate".'.
No. 121, in page 84, line 32, at end insert—
'10A In section 21 of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29 (N.I.)) (offences during suspended sentence etc.), for subsection (2) substitute—
4 Mar 2002 : Column 76
"(2) A summons under this section shall not be issued except on complaint; and a warrant under this section shall not be issued except on complaint in writing and on oath.
(2A) Subsection (2) does not apply to a summons or warrant issued (by virtue of section 10(11A) of the Justice (Northern Ireland) Act 2002) by a judge of the Crown Court acting in consequence of a notice under section 20(3) of this Act.".'.
No. 122, in page 84, line 39, at end insert—
'(4) After subsection (5) insert—
"(5A) A justice of the peace for a county court division may act as such in relation to all matters arising within that division and may so act even if at the time of acting he is in some other area of Northern Ireland.".'.
No. 124, in page 85, line 5, at end insert—
'13A In Article 84(6) of the Pollution Control and Local Government (Northern Ireland) Order 1978 (S.I. 1978/1049 (N.I. 19)) (judges and justices not disqualified by being ratepayers etc.), for "and a justice of the peace" substitute ", resident magistrate or lay magistrate".'.
No. 123, in page 85, line 5, at end insert—
'(2) A magistrates' court is not to be regarded as a court of record for the purposes of subsection (1).".'.
No. 11, in page 85, line 23, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".
No. 12, in page 85, line 28, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".
No. 125, in page 85, line 29, at end insert—
'19A In Article 7 (clerk's immunity in respect of warrant to enforce order), for "resident magistrate or other justice of the peace" substitute "magistrates' court".'.
No. 13, in page 85, line 33, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".
No. 126, in page 85, line 35, leave out—
'sitting" substitute "lay magistrate sitting"'
and insert—
'" in the words preceding sub–paragraph (a) and in sub-paragraph (b) substitute "lay magistrate", and
(b) for "or justice of the peace" substitute "or lay magistrate".'.
No. 127, in page 86, line 2, at end insert—
', and
(b) for "magistrate, justice or clerk of petty sessions" substitute "person".'.
No. 128, in page 86, line 4, at end insert—
'26A In Article 160(1) (misbehaviour in court), for "justice of the peace" substitute "lay magistrate".'.
No. 129, in page 86, line 9, at end insert—
'28A In section 244(6)(a)(ii) of the Criminal Procedure (Scotland) Act 1995 (c. 46) (community service orders), for "justice of the peace acting for the petty sessions district for the time being specified in the order" substitute "resident magistrate".'.
No. 130, in page 86, line 17, at end insert—
'31 In section 81(1) of the Regulation of Investigatory Powers Act 2000 (c. 23) (interpretation), after the definition of "interception warrant" insert—
"justice of the peace" does not include a justice of the peace in Northern Ireland;".'.—[Mr. Browne.]
4 Mar 2002 : Column 77
Schedule 5
Amendments made: No. 14, in page 86, line 26, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".
No. 131, in page 87, line 20, at end insert—
'10A In section 75(2)(b) (directions conferring or imposing functions on Official Solicitor), for "Lord Chancellor" substitute "Lord Chief Justice".'.—[Mr. Browne.]
Clause 15
Amendments made: No. 15, in page 10, line 30, leave out "District Judges (Magistrates" Courts)" and insert "Resident Magistrates".
No. 132, in page 10, line 31, leave out—
'District Judge (Magistrates' Courts) in Northern Ireland'
and insert "resident magistrate".
No. 133, in page 10, line 32, leave out from "other" to end of line 33 and insert—
'resident magistrates and the deputy resident magistrates.'.
No. 134, in page 10, line 34, leave out—
'District Judge (Magistrates' Courts) in Northern Ireland'
and insert "resident magistrate".
No. 135, in page 10, line 37, leave out—
'District Judge (Magistrates' Courts) in Northern Ireland'
and insert "resident magistrate".
No. 136, in page 10, line 38, leave out from "a" to "pending" in line 40 and insert—
'resident magistrate to act as Presiding resident magistrate,'.
No. 137, in page 11, line 2, leave out—
'District Judge (Magistrates' Courts) in Northern Ireland'
and insert "resident magistrate".—[Mr. Browne.]
Clause 19
Amendment made: No. 24, in page 12, line 34, leave out "District Judge (Magistrates" Courts)" and insert "Resident Magistrate".—[Mr. Browne.]
Clause 20
Mr. Quentin Davies (Grantham and Stamford): I beg to move amendment No. 45, in page 13, line 22, leave out from "either" to end of line 34 and insert—
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