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The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 95 and 96. Clause 9 relates to the introduction of lay magistrates in Northern Ireland. At the outset, it is worth highlighting the fact that these persons will be appointed by the Lord Chancellorand the Lord Chancellor alone. However, the First Minister and Deputy First Minister must have a role to play in the appointment, for example, of judges in the High Court.
Amendment No. 93 seeks to remove subsection (5)(d), which suggests that an order may list prescribed offences whereby a person, if convicted, may be ineligible. "Prescribed" in that context, however, by subsection (6) means, "prescribed in the order". That permits an exclusory role for persons convicted of theft but the inclusion of those convicted of terrorist offences.
Amendments Nos. 95 and 96 would replace that provision with a strict prohibition of persons convicted of criminal offences and dictates that persons convicted whilst lay magistrates must be removed. Just as we do not wish to have criminals involved in judicial appointments, we similarly do not wish criminals to be appointed lay magistratessuch persons will have an important role dealing with youth justice and reprimanding offending juveniles. I beg to move.
Baroness Scotland of Asthal: These important amendments deal with the issue of qualification for lay magistrates. Amendment No. 93 seeks to remove from the list of disqualification provision for lay magistrateswhich can be waived by the Lord Chancellorthe subsection which states that candidates who have been convicted of a prescribed offence are disqualified.
The review recommended that the criminal justice functions of justices of the peace should be undertaken by a new office of lay magistrate. The Bill accordingly sets out the likely qualification requirements for that post.
Amendment No. 94 seeks to remove the Lord Chancellor's discretion in applying those qualifications. The Lord Chancellor has that discretion in making justice of the peace appointments in England and Wales. If the amendment were agreed to, the Lord Chancellor would not, for example, be able to appoint candidates who depart even in the smallest way from the eligibility criteria. That would exclude a candidate, for example, who lived just five miles beyond the prescribed distance. The Government believe that such flexibility is essential and we therefore hope that the amendment will be withdrawn.
Amendment No. 96 requires the Lord Chancellor to remove a lay magistrate if he is convicted of a criminal offence. The effect of the provisions would be to remove any discretion the Lord Chancellor had to set aside convictions for certain prescribed offences and to decide to appoint such an individual as a lay magistrate anyway.
The Leader of the Opposition in the other place noted that just because a person has a past, it does not mean that he cannot play a role in the future. We support that sentiment and disagree with the amendments, which seek to remove that possibility. Members of the Committee said earlier that redemption should not be ruled out. I respectfully agree with that sentiment.
Lord Glentoran: I was interested to hear what the Minister said. It is strange that we have a seriously thought-out prescriptionparagraphs (a) to (d) of subsection 5 are seriously prescriptivebut that they can be made as nothing by the Lord Chancellor. The Bill is a serious mixture of over-prescription and under-prescription.
Baroness Scotland of Asthal: We would say that this would be appropriate prescription where the need arose. The functions, which are currently discharged by the Lord Chancellor, would, after devolution, be exercised by the First Minister and Deputy First Minister, as provided for by Schedule 3, paragraphs 40 to 42. That discretion has been judiciously used in the past, and we anticipate that it would be judiciously used in the future.
Lord Mayhew of Twysden: Before we return to the matter, would the Minister consider a slight variation of the amendment with which we are dealing? The purpose of this section of the Bill is to secure public confidence in the justice system. I agree with the Minister's description of the role of lay magistrates as modest but important, and it is plain that there is an important need for subsections 5(a) to (d).
The problem about the reference to "a prescribed offence" in paragraph (d), in which "prescribed" means prescribed in the order, is that it is difficult to draw up a satisfactory list of offences and to prescribe them in an order about which one can be confident that it is sufficiently comprehensive but not too comprehensive.
Baroness Scotland of Asthal: We will certainly consider that. I thank the noble and learned Lord, Lord Mayhew of Twysden, for that suggestion. I would say, in addition, that if someone has committed an offence that is not on the prescribed list,
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