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Lord Renton: Perhaps I may ask the noble Lord to bear in mind that the responsibilities of appointment of lay justices is quite different from their removal on grounds which may be familiar to the Lord Chief Justice.

Lord Borrie: The noble Lord is right. However, the noble and learned Lord, Lord Donaldson, has made the point about circuit judges. We shall shortly discuss Clause 17, which deals with district judges. The power is given, with certain restrictions, to the Lord Chancellor's Department for the removal of district judges. It seems to me that it would be very odd indeed to isolate lay justices as a particular group of people who could be removed by the Lord Chief Justice. That would cause all kinds of practical difficulties.

I trust and hope that the wording of the Bill as it stands, with any necessary amendments if the view of the Joint Committee has to be taken even more cautiously than we already do, will ensure that there is no possibility of any effective challenge under the European Convention on Human Rights.

Baroness Scotland of Asthal: I thank the noble Lords, Lord Thomas of Gresford and Lord Goodhart, for moving the amendment that makes the Lord Chief Justice responsible for the removal of magistrates from office by instrument on behalf of Her Majesty the Queen. From the debate we have just had, this has proved to be an important issue. The noble and learned Lord, Lord Donaldson, and my noble friend Lord Borrie make a good and telling point. We are trying to ensure parity of treatment in relation to the way in which the magistracy and the judiciary are treated.

I am grateful for the opportunity to try to allay some of the concerns raised in relation to this matter. I do not think that I can accept the amendment. I thank the noble Lord, Lord Goodhart, for the indication that it is of a probing nature. It would be odd indeed if the Lord Chancellor should appoint justices on behalf of Her Majesty but the Lord Chief Justice should, where necessary, remove them.

I also note that this would have far-reaching constitutional implications, some of which have been highlighted already by noble Lords in the debate. The Lord Chancellor is at the moment the head of the judiciary under Section 1 of the Supreme Court Act 1981, and it is he who has the power to remove from office both circuit and district judges, pursuant to

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Section 24 of the Courts Act 1971, Section 1OA of the Justices of the Peace Act 1997 and Section 11 of the County Courts Act 1984. The amendment would not be consistent with that position.

I also note that there are already safeguards in place to remedy magistrates against arbitrary or improper removal from office. The circumstances in which the Lord Chancellor exercises the power of removal are described in the directions for advisory committees on justices of the peace. Those directions define also the procedure by which a justice may be removed on recommendation to the Lord Chancellor by a committee of justices. Shortly after the Human Rights Act 1998 came fully into force, in two cases in magistrates' courts in the North East of England it was argued that justices of the peace lacked a compatible independence. But on both occasions those arguments were rejected by the courts concerned on the ground that there existed adequate safeguards.

No appeals were brought against those decisions. Additionally, the decision of the Lord Chancellor to remove a justice, or any other judicial office holder, from office is susceptible to judicial review by the High Court itself. In that sense, therefore, the removal of a justice could not be effected without judicial acquiescence and never could be effected improperly or arbitrarily. So, we suggest that the amendment would not be necessary. The issue has been discussed with the Lord Chief Justice. He is content with the position as it currently stands and is of the view that the amendment is not appropriate. I hope that that is a full explanation as to the current position in response to the concerns raised by the Committee and by the noble Lord, Lord Goodhart.

Lord Goodhart: Despite what the Minister has said, I remain firmly of the opinion that it would be more appropriate that powers to dismiss members of the judiciary—whether circuit judges, magistrates or district judges—should be removed from the Lord Chancellor. That is to a large extent for the reason raised by the noble Lord, Lord Renton; namely, that the Lord Chancellor is increasingly a Minister of Justice and in the case of the present holder of the office because he is a major political figure within the Cabinet.

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Nevertheless, I accept that this would be a change that would have important constitutional consequences. My present view is that it is probably inappropriate to raise this issue on a side wind on a Bill that is mainly devoted to other purposes. So I shall take the matter away and consider it. I do not undertake that I shall not bring it back, but at present I think that it is more likely that I shall not do so.

Baroness Scotland of Asthal: Perhaps I may assist the noble Lord. I should also say that we have looked at the conventional case law. It establishes that appointment and potentially the removal of justices by the executive does not need to be inherently incompatible with the independence required of them by Article 6, provided that—crucially—there exists appropriate objective safeguards against improper interference. We believe there are. So, the case law seems to support it. I say that in order to assist the noble Lord at this stage because I do not want him to burden himself unnecessarily by bringing issues back to the House which can perhaps rest where they are.

Lord Goodhart: The noble Baroness has raised a point of which I am well aware. With regard to the European Convention on Human Rights, the European Court is likely to recognise the existence of judicial review and to acknowledge that it is an important safeguard in a case of this kind. The court might not have done so had it remained that the Lord Chancellor had an unfettered power to remove a magistrate without having to give reasons for doing so.

Having said that, from a constitutional point of view it is desirable to make the change, but at present I do not think that this is either the right time or place in which to do it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Lord Grocott: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at four minutes before ten o'clock.

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