Draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2003

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Fourth Standing Committee
on Delegated Legislation

Monday 16 June 2003

[Mr. James Cran in the Chair]

Draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2003

4.30 pm

The Parliamentary Secretary, Department for Constitutional Affairs (Mr. Christopher Leslie): I beg to move,

    That the Committee has considered the draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2003.

May I say, Mr. Cran, how pleased I am to serve under your august chairmanship? As a Minister fresh to his portfolio, I crave your indulgence, and I hope that the Committee will bear in mind my need to take time over the detail of the order. I also take the opportunity to say how pleased I am to square up to the spokesmen on the Opposition Benches. I understand that their respective reshuffles will occur in due course.

The order was made by powers conferred by the Justice (Northern Ireland) Act 2002. A copy of the order was laid before the House on 12 May 2003. The order is made under subsections (4), (5) and (6) of section 9 of the 2002 Act. Its purpose is to prescribe the criteria that will make the persons matching them ineligible for appointment as lay magistrates, which is a new judicial office in Northern Ireland.

The order is made in the context of the Belfast agreement of 1998, which said that one of the four aims of the criminal justice system was to

    ''be responsive to the communities concerned, and encouraging community involvement where appropriate''.

The review of the criminal justice system in Northern Ireland provided for in the Belfast agreement considered allowing lay involvement in the court process, and it highlighted a number of factors, including the importance of having a diverse lay magistracy that broadly reflected the communities that they serve insofar as that can be achieved given the overriding requirement to appoint on merit.

The review found that lay persons should continue to sit alongside professional magistrates in youth courts and family proceedings courts, and they should continue to hear complaints with a view to issuing summonses and warrants. It was also thought that lay magistrates should be empowered to conduct first remand hearings in special courts. However, they should no longer be empowered to extend the period during which a suspect might be held in custody. In short, the review recommended that lay magistrates should in future perform certain criminal justice functions currently performed by justices of the peace and all the functions currently performed by laypersons sitting alongside resident magistrates in youth courts.

To meet the business needs of the courts, it is intended to appoint and train about 350 magistrates

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by September 2004. An extensive publicity campaign is planned across Northern Ireland from the autumn that will give information on the role of lay magistrates and broadening the pool of potential candidates. The selection process will be rigorous, and candidates will be recommended for appointment on merit—based, for example, on judicial aptitude, decision-making skills and other key qualities. Once appointed, lay magistrates will undertake mandatory training to ensure that they do their jobs to the highest standard. There will also be routine and regular refresher training.

The order focuses on the restrictions to being appointed. Applicants will not be appointed if their employment, their voluntary work or their relationship to a person connected with the criminal justice system could create a conflict of interest or a perception that it might challenge the independence of their judicial function. Likewise, anyone who has been convicted of a criminal offence punishable by a term of imprisonment exceeding one month will not be appointed.

Candidates must live or work in the vicinity of the division to which they are appointed, and holders of certain elected offices, those seeking election to Parliament or the Northern Ireland Assembly, and paid agents of political parties involved in such elections are also ineligible. A person is ineligible for appointment as a lay magistrate if a bankruptcy order has been made against him or her. However, the Committee will have noted that, in some circumstances, the Lord Chancellor will have discretion to be flexible. In the case of the restrictions on appointment, he may waive an element of the eligibility criteria if he considers it appropriate to do so. That discretion was discussed during the passage of the Justice (Northern Ireland) Act 2002, as it might be considered appropriate to set aside relatively minor issues in the case of an otherwise meritorious candidate. For example article 2(a) specifies that a lay magistrate shall not be appointed to a county court division unless he or she lives or works in the division or within 15 miles of its boundaries. There might be borderline cases—perhaps somebody who is 100 yards outside that limit—in which reasonable flexibility should be exercised without undermining the important principle that local people should administer local justice.

Andrew Mackinlay (Thurrock): Am I to understand it that, although the power that is with the Lord Chancellor allows him, in some special circumstances, to vary the eligibility of somebody for the lay magistracy, he cannot alter the criteria that are specified in the order as they are absolute? In other words, he cannot vary the eligibility of—to take as a random example—a traffic warden. [Interruption.] I hear somebody saying from a sedentary position, ''Yes, he can'', so why do we go through the charade of specifying this long list? If he has discretion, he might as well exercise it. Looking at the length of the list, there can hardly be anybody in Northern Ireland who is not on it. I do not want to be sarcastic—

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The Chairman: Order. This intervention is developing into a speech.

Mr. Leslie: I understand that not everybody in Northern Ireland is a traffic warden—at least, not at present. The example that my hon. Friend mentions will not happen. If he reads the beginning of article 2, he will see that it says:

    ''Unless the Lord Chancellor otherwise determines . . . no person shall be appointed to be a lay magistrate''

That applies under the given criteria, so flexibility applies across the piece. That caveat was written into the 2002 Act. It was debated and accepted by Parliament. It is important to have orders that go a step further than mere guidance. They help to ensure that the basic criteria are discussed and agreed and that they receive a degree of parliamentary oversight. We believe that the criteria are certain and robust. We do not envisage many exceptions being made.

Andrew Mackinlay: There might be a case for having the criteria written into the order—rather than into a code of practice—if they were accurate. I believe that the Official Report will show that the Minister has referred to accuracy. I notice that article 2(b)(iv) refers to

    ''the Irish Parliament (Dail Eireann)''.

The Parliament is the Oireachtas, and, as there is another House of the Irish Parliament, ambiguity is writ large here. We pay people large sums to draft orders, so they ought to be right. ''Oireachtas'' should be painted on to their eyelids. What about the Senate of Ireland?

Mr. Leslie: I congratulate my hon. Friend on highlighting the issue. It is clear that the intention is that both Houses of the Irish Parliament be included.

Andrew Mackinlay: Where does it say that?

Mr. Leslie: I am making it clear now. It is important that we should have reasonable lists of eligibility and ineligibility criteria. The purpose of the order is to expand on the matters set out in the 2002 Act.

Andrew Mackinlay: Is a member of the Senate eligible or ineligible?

Mr. Leslie: My understanding of the spirit of the order is that he would be ineligible. If my hon. Friend wishes to be—

Andrew Mackinlay: Accurate.

Mr. Leslie: If my hon. Friend wishes to be pedantic, I am sure that he could find several orders and issues over which we could pick until the end of the day. However, the provision for the Irish Parliament is clear and specific enough to fulfil the order's intention that a member of either House of the Irish Parliament is not eligible to sit as a lay magistrate in Northern Ireland. I apologise if there has been a spelling or typographical mistake—[Interruption.] I am grateful for my hon. Friend's continued interventions, but my point is that, despite the discretion, the criteria will be rigorously and reasonably applied as they are set out in the order for sound reasons of securing confidence in the justice system.

I want to say a word about the circumstances of Northern Ireland and certain potential applicants. I

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know that hon. Members have some concerns about the possibility of applications being received from persons with criminal convictions, perhaps from former or current paramilitary groups attempting to test the system. Such concerns were expressed during the passage of the Justice (Northern Ireland) Act 2002.

We have acted on those concerns, and the appointments process is robust. Article 2(k) says that no person shall be appointed

    ''if he has been convicted of an offence punishable by a term of imprisonment exceeding one month.''

Checks will be undertaken on applicants through the criminal records office, with the results of such checks made available to the interview panel. Applicants will be required to declare if they have any criminal convictions, and spent convictions will be taken into account. The failure to disclose a conviction will be taken as an indictment of an individual's integrity and probity.

Importantly, the selection process will test judicial aptitude and impartiality, which will expose any extreme views that candidates might have. When an applicant has been convicted of less serious offences, any panel making a recommendation for appointment must be satisfied, and satisfy the Lord Chancellor, that any persistent reoffending could not be construed as displaying a disregard for the law.

Lay magistrates in Northern Ireland will have an important role to play in the administration of justice in their local community. The order provides important safeguards that are necessary in making appointments. I commend it to the Committee.

4.42 pm


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