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The Lord Privy Seal (Lord Williams of Mostyn) moved Amendment No. 98:

(e) the function under Article 5(4) of the Treatment of Offenders (Northern Ireland) Order 1976 (S.I. 1976/226 (N.I. 4)) (committal where offence committed after early discharge),
(ea) the functions under section 51(8) of the Judicature (Northern Ireland) Act 1978 (c. 23) (committal etc. of person in custody in pursuance of Crown Court warrant),"

The noble and learned Lord said: Grouped with this amendment are Amendments Nos. 99 to 101. The review, as is known, recommended that justices of the peace should no longer have a role in the criminal justice system. It further recommended the creation of the post of lay magistrate. The Bill gives effect to those recommendations and Clause 10 transfers the powers of justices of the peace to lay magistrates, subject to certain exceptions. The amendments make further purely technical changes to the Bill, in order to give full effect to the recommendations. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 99:

    Page 9, line 12, at end insert—

"(7) In this section references to a function are to a function conferred or imposed by an enactment or instrument passed or made before the time when this section comes into force (including a function conferred or imposed by a provision not in force at that time)."

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Schedule 4 [Functions of justices of the peace]:

Lord Williams of Mostyn moved Amendments Nos. 100 and 101:

    Page 84, line 15, leave out paragraph (c) and insert—

"(c) Articles 44 and 45 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)) (warrants of further detention)."

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    Page 84, line 20, leave out "(whenever passed or made)" and insert "passed or made before the coming into force of this Schedule"

On Question, amendments agreed to.

Lord Rogan moved Amendment No. 102:

    Page 86, leave out line 2.

The noble Lord said: With this amendment we seek to limit the powers of binding over. Being bound over to keep the peace is a tangible issue and something that one can put one's finger on. However, being bound over to be of good behaviour is much wider. There may indeed be human rights issues for such a wider power. I will defer to the noble and learned Lord's legal experience on this matter. I beg to move.

Lord Glentoran: I support the amendment. Not being of a legal background, it seems that in a Bill as prescriptive as this one has to be, to bind somebody over for good behaviour is very difficult to define. I am not sure that it adds anything to this part of the Bill. I support the amendment.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): Amendment No. 102 seeks to leave out the reference to good behaviour. At present, as many Members of the Committee will know, most of the judiciary of Northern Ireland are ex officio justices of the peace and, accordingly, they may exercise the powers of justices to bind over, pursuant to the Justices of the Peace Act 1361.

The effect of this amendment, therefore, is to remove a power that has existed for centuries and has been exercised without undue difficulty since that time. I appreciate that this law is a mere 600 years old, but there has been a facility during that time to further identify how it should be used. I reassure Members of the Committee that the practice now in the courts, because of the potential difficulty in relation to lack of precision of good behaviour, is that justices of the peace or judges usually specify the sort of behaviour that the person accused must desist from continuing. Thus, the accused will be bound over to keep the peace and be of good behaviour and it is quite usual for that to be specified in particular. The phraseology is perfectly good and we see no reason to change it, bearing in mind the way in which it has been in good usage all these years.

Lord Maginnis of Drumglass: I heard what the Minister had to say. However, 600 years ago, good behaviour might have been more easily defined. In the environment in which it was meant to be applied, it would have had some relevance. Six hundred years on, we are a very mobile people, nowhere more so than in Northern Ireland, where there are inherent dangers relating to the expectations of the two traditions. Such a vague provision is unhelpful. What may be good behaviour in one part of a town or city may not be deemed necessary in another area.

Anything that is open to various interpretations, such as this part of the Bill, is, in the context of Northern Ireland, dangerous. It is unnecessary, and I

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ask the Minister to think again. Rather than protecting the heritage of 600 years, the Minister should consider the necessity for the people of Northern Ireland.

Baroness Scotland of Asthal: I hear everything that the noble Lord says. I fully understand the sensitivity of the position and the lack of precision. By way of reassurance, I shall say that, during the most troubled times in Northern Ireland, the facility to bind people over to be of good behaviour was there, and it was certainly exercised by the judiciary throughout that period. It does not appear to have caused difficulty.

I would also like to reassure the noble Lord about more recent practice. It is the practice now for judges to identify the sort of behaviour to which they refer. That would address the difficulty rightly raised by noble Lords and ensure that someone could not subsequently say, "Well, that was a generic term, and I did not quite understand what I was supposed to desist from doing". That is, in practice, how courts seek to address the ambiguity that noble Lords have identified.

I hope that that will satisfy noble Lords. There is always an opportunity for us to consider the matter. However, there does not seem to be much need in this instance for change.

Baroness O'Cathain: I would like some clarification. The Minister said that this has been used in Northern Ireland. I do not necessarily seek examples, but I ask whether it is not really another meal ticket for lawyers, so that they can decide what is good behaviour and what is not.

Baroness Scotland of Asthal: Most certainly not. I know that there is a taste in the House for suggesting that the appetite of lawyers is endless, but I must disabuse noble Lords of that idea.

The order is often used in this country by lay magistrates and in Northern Ireland by registered justices of the peace to bind someone over to be of good behaviour and keep the peace, usually for relatively minor issues. It is often useful in neighbour disputes, in which there are two parties who have not got on well—it might be six of one and half a dozen of the other—and the court takes the view that it is not necessary to make a finding of facts to decide guilt or innocence. In such cases, the court may bind the parties over to keep the peace and to be of good behaviour. We often find that that works.

It is not used for complex and difficult criminal offences; it tends to be a useful tool available to a judge dealing with a low order of misbehaviour. Indeed, one can be bound over to keep the peace, even if one has not committed an offence; that is always interesting.

Lord Rogan: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4, as amended, agreed to.

Clause 11 agreed to.

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Clause 12 [Role of Lord Chief Justice]:

Lord Glentoran had given notice of his intention to move Amendment No. 103:

    Page 10, line 4, leave out subsection (3).

The noble Lord said: The amendment was originally tabled to ensure that the order referred to in the paragraph was an affirmative order. The Lord Privy Seal has already made that clear, so I shall not move the amendment.

[Amendment No. 103 not moved.]

Lord Maginnis of Drumglass moved Amendment No. 104:

    Page 10, line 6, after "to" insert "or functions from"

The noble Lord said: This is a simple and easily understood amendment. Subsection (3) provides the facility to transfer functions to the Lord Chief Justice. I do not wish to suggest for a moment that the Bill is speculative, but I suppose that all new legislation, by nature, must be. If not, there would be a complete transfer of functions at the outset rather than this facility to transfer other functions at a later stage. It appears to me that there should be a reciprocal facility to remove certain functions if necessary. That is the reason for the amendment. I beg to move.

Baroness Scotland of Asthal: I understand the concern that the noble Lord has identified. The widening of the power in the amendment would allow the Lord Chancellor at any time to move from the Lord Chief Justice functions of any nature that have been transferred. That would give a degree of instability or insecurity in relation to those devolved functions. We do not consider that it would be appropriate to have a power to remove functions that it has been agreed will be exercised by the Lord Chief Justice in the post-devolution scenario. If we are going to devolve authority to the Lord Chief Justice who, after all, will be an extremely senior and competent member of the senior judiciary, he should be entrusted with those devolved functions.

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