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Lord Bach: My Lords, I cannot disagree with what the noble Lord says, especially given his vast experience in these fields. I read the article to which he refers. There is much truth in it, although it ought to be said that the equipment that the UK forces used in the recent conflict in Iraq by and large proved to be extremely successful. We welcome the recognition in the summit I mentioned of the importance of strengthening European defence capabilities, including the acceptance of a British

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proposal that the European Union should have an agency to focus primarily on the development of defence capabilities. That matter will be discussed again shortly.

Lord Hardy of Wath: My Lords—

Lord Williams of Mostyn: My Lords, I am afraid that we are well beyond time.

Courts Bill [HL]

3.33 p.m.

Consideration of amendments on Report resumed.

Clause 11 [Retirement and removal of lay justices]:

Baroness Scotland of Asthal moved Amendment No. 36:

    Page 5, line 16, leave out subsections (1) to (4).

The noble Baroness said: In moving Amendment No. 36 I wish to speak to all the amendments with which it is grouped.

Your Lordships will know that the Supplemental List would have been abolished under the original provisions of the Bill. However, the Government have listened very carefully to the appeals of a number of your Lordships at Second Reading who set out the magistracy's view on the matter. We are restoring the Supplemental List through this package of government amendments. Many magistrates have stated that they regard being added to the list as recognition of good service for retired magistrates. The Government recognised the need to reward justices' valued service to the community and so are bringing forward these amendments to restore the Supplemental List to statute. I hope that that will give particular pleasure to the noble Baroness, Lady Seccombe, as well as to the noble Viscount, Lord Tenby. Although the noble Viscount is not present, he advocated strongly that the Supplemental List should be restored.

I hope that the amendment of the noble Baronesses was meant in a spirit of gentle reminder and may now be withdrawn. We have tinkered with it a little. I hope that they will allow for that. We have correspondingly amended Clause 11, which sets out the position on ceasing to hold office as a justice of the peace, and we have allowed for the possibility that a serving Bench chairman, or a justice whose case goes part-heard, could remain an active JP until after the age of 70.

The amendments also retain provision for magistrates who retire before 70 after many years of service to be included on the list. There are some small changes to the current position. As with the amendment of the noble Baronesses, there is no statutory reference to continuing powers to perform certain acts as the majority of these do not require statutory authority to be carried out and can be done by most people and not justices alone.

The use of the Supplemental List as a disciplinary mechanism has been removed. This reflects the way in which the Supplemental List has evolved since its

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introduction in 1941. At that time it was used to introduce a retirement age for justices of the peace who refused to resign despite being unable to carry out their functions, as we discussed on a previous occasion. Today the list is seen more as a "roll of honour" for retired justices and as a form of gratitude for the valuable service magistrates have provided society. With great pleasure I beg to move.

Baroness Seccombe: My Lords, I wish to speak to Amendment No. 44 and to support government Amendments Nos. 39, 40 and 41.

The amendment provoked much debate in Committee and, I am pleased to say, received much support. I shall not take up time going over old ground on the amendment except to say that I stand by my previous comments on the matter. I believe that the abolition of the list would be a mean-spirited act which would serve no purpose.

I am therefore very grateful to the Government for tabling their amendments which fulfil the function we sought and ensure that the Supplemental List will continue to provide recognition of those who have selflessly given up their time to fulfil a role in the community.

I say rather flippantly that in an idle moment I put a few figures together. If one considers that each daily session is four hours minimum, and that on average magistrates do 40 sessions per annum—which is 160 hours per annum—over 15 years that would be 2,400 hours. If one considers that the maximum number of hours that can be ordered under one community service order is 240, that means that over 15 years magistrates perform at least the equivalent of 10 maximum community service orders. That is surely a worthwhile contribution to the community.

In Committee I said that I looked forward to returning to the issue and that I hoped that I would hear wonderful news. I am pleased that I have heard just that. Having mentioned the phrase "mean-spirited", I wish to add that in no way do I accuse the Minister of such feelings. Indeed, I pay tribute to the generous way in which she has responded to my amendment and to the part she has played in bringing forward the government amendments that are before us today.

Lord Goodhart: My Lords, I am happy to support the government amendments. They constitute an entirely harmless and almost cost-free method of acknowledging the admirable service which many justices of the peace have performed by continuing to allow them to describe themselves as justices of the peace when they are no longer sitting as members of the court. That is entirely welcome. I am very glad that the Government have given way on the matter.

The Earl of Sandwich: My Lords, I cannot speak for my noble friend Lord Tenby, but he would want someone from the Cross Benches to thank the Government for that concession.

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On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 37:

    Page 5, line 33, leave out second "or" and insert—

"( ) on the ground of a persistent failure to meet such standards of competence as are prescribed by a direction given by the Lord Chancellor, or"

The noble Baroness said: My Lords, my noble and learned friend the Lord Chancellor has tabled the amendment to clarify that magistrates may be removed for persistent failure to reach the standards of competence required. Under Section 5 of the Justices of the Peace Act 1997, the Lord Chancellor has a general power to remove magistrates from office. However, the grounds on which he may do so are not specified. The current removal powers could apply to the case of a magistrate who has proved incapable of meeting the required level of competence in the judicial role.

I stress that that power is currently recognised, with the procedure to be followed in such cases set out in the directions to advisory committees published by my noble and learned friend the Lord Chancellor. The original drafting of Clause 11(6), however, restricts the removal powers in respect of magistrates to incapacity, misbehaviour or neglect of duty. That may create difficulty with removing a lay magistrate who has persistently failed to meet the competencies prescribed for magistrates.

The amendment will ensure that the current position is maintained, and it is tabled with the support of the Magistrates' Association. I beg to move.

Lord Clinton-Davis: My Lords, how often has the Lord Chancellor's current power been exercised?

Baroness Scotland of Asthal: My Lords, I do not have specific numbers at the moment. I can certainly tell the noble Lord that it has been very rare indeed. It is not a frequently used power, but there may be occasions when it proves necessary. That is why the power has to be there. I shall be more than happy to write to him to give him whatever figures we have available, if they are available.

Lord Borrie: My Lords, I am slightly anxious about the wording of the amendment. It suggests that the second "or" in line 33 should be left out, and then that certain words should be inserted. If the second "or" is left out, the amendment seems to mean that "misbehaviour" is defined,

    "on the ground of a persistent failure to meet such standards of competence",

and so on. The Minister will know very well that "incapacity or misbehaviour" is a phrase commonly found in the grounds for dismissal of public officers of various kinds. Indeed, it is to be found in Clause 17 in relation to district judges and Section 24 of the Courts Act 1971 in relation to circuit judges.

If the Minister feels the need to add another ground for removal of a lay justice, I can quite understand that. However, if the result of agreeing to the

8 May 2003 : Column 1240

amendment is to limit "misbehaviour" so that it no longer applies to committing criminal offences, for example, it would seem as though the drafting had gone all awry. I hope that I have misunderstood the Minister, but I am slightly anxious about the wording of the amendment.

Baroness Seccombe: My Lords, we on these Benches welcome the amendment. We understand that it meets the requirements of the Magistrates' Association, as the Minister said.

Lord Phillips of Sudbury: My Lords, I do not think that one can be too careful in considering legislative powers to remove judges; of course, justices of the peace are judges. I think that I am right in saying that a High Court judge can be removed only by Parliament itself. Although the noble Lord, Lord Borrie, refers to the power of removal of district judges under Clause 17, that does not include a provision such as that inserted by the amendment.

Perhaps I have an excess of concern about preserving the independence of justices of the peace, but I think that the question raised by the noble Lord, Lord Clinton, is very germane. I had a few words with the noble and learned Lord, Lord Mackay of Clashfern, about the amendment before he had to go elsewhere. He was unaware of occasions during his tenure as Lord Chancellor of having to remove on the grounds specified in the amendment.

The other question that occurs to me—I would be grateful if the Minister were to comment on it when she winds up the debate—is to ask who will judge persistent failure. Obviously the Lord Chancellor will have to act on the basis of reports, but who will compile those reports? Will the person about whom they are drawn up have any possibility of commenting on them, in order to defend himself or herself against the charge of persistent failure to meet standards of competence?

So far as I am aware, the existing prerogative power has worked perfectly well over very many centuries. Is it really necessary to make the amendment? I hope that no one will think that I am beginning to cast aspersions—I am plainly not—but extreme caution is called for about such matters. It occurs to me to ask whether putting a power in the Bill on a quite different ground from any existing one might not create a legislative tool that an unscrupulous or biased Lord Chancellor might be inclined to use in the case of a justice of the peace who gave him or her extreme stress or distress.

3.45 p.m.

Lord Clinton-Davis: My Lords, I want to ask the noble Lord a question before he concludes his remarks. He referred to the noble Lord, Lord Clinton. I have looked around and I cannot see him. Was he referring to me?

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