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I wonder whether one is putting a legislative tool in the way of potential misuse, especially as, in the circumstances conjectured, there seems to be no guard for the justice of the peace who will be removed. I would be interested to hear what the noble Baroness has to say.
Lord Goodhart: My Lords, I want to follow up on what was said by my noble friend Lord PhillipsLord Phillips of Sudbury, I should point out. The amendment provides that the Lord Chancellor will prescribe in a direction the standards of competence required. Those directions, which will obviously be general directions, do not require any parliamentary procedure. As I understand it, the Delegated Powers Committee, which has just reported on the government amendments, has not suggested that they should.
On the other hand, it certainly seems that publicity is required for the directions, so that people learn what the prescribed standards are. Therefore, would it not be appropriate to require that directions should at any rate be laid before Parliament, even if there were no parliamentary process for their approval?
Baroness Scotland of Asthal: My Lords, I shall try to deal with all the issues raised. I shall first further clarify an answer that I gave earlier. We do not think that the power has ever been exercised. Generally, the experience has been that magistrates in these positions tend to resign. But we shall certainly make the trawl to ascertain the real position.
This provision is supported by the Magistrates' Association, primarily because it has a real and a proper interest in making sure that the highest possible standards are maintained by those who discharge this very important function. That is a view with which we concur.
Before responding to the points made by the noble Lords, Lord Phillips and Lord Goodhart, perhaps I may deal with the matter referred to by my noble friend Lord Borrie. The "or" does not add a paragraph to the subsection. What it does is to create a new groundhence "(a), (b) 'or' (c)". Stylistically, given the way in which the Bill is drafted, when alternatives are put forward the "or" comes immediately prior to the final paragraph. I hope that that clarifies the point.
Safeguards will apply to the removal of magistrates. As the noble Lord, Lord Goodhart, mentioned, there is a procedure set out in directions to the Lord Chancellor's Advisory Committee. We believe that this provision is compatible with Article 6. It is also open to judicial review if needs be.
The competencies already exist. They are known as the magistrates' national training initiative competencies. Recently, they have been revised in consultation with the Magistrates' Association. It is envisaged that these would be formalised, so that the appraisal system would be administered by the Judicial Studies Board against clear competencies. Appraisal results will be considered
The recollection of the noble and learned Lord, Lord Mackay of Clashfern, as reported by the noble Lord, Lord Phillips, is probably right. We do not recollect any occasion when it has been used under this Administration either.
I hope that that satisfies your Lordshipsfirst, that this is a perfectly proper clause; secondly, that the competencies will be properly defined; and, thirdly, that there will be a proper system through which they will be applied. I hope that noble Lords will be content with that response.
Lord Phillips of Sudbury: My Lords, before the Minister sits down, perhaps I may ask whether the magistrate who is being removed will have an opportunity to know about that, and to make a response before the decision is taken?
Baroness Scotland of Asthal: My Lords, of course it will be very important that all magistrates who are trained are trained properly. They will be assessed. In accordance with the rules of natural justice, if action is to be taken against a magistrate that magistrate should properly be told the reason for the action and given an opportunity to make a response. If the proper procedures were not adopted, as I said earlier, it would be open to that magistrate, were he or she so minded and there were grounds on which to justify it, to take the decision to judicial review.
I have attempted to set out as clearly as I can the process that will be adopted for the assessment. I know that the magistrates' courts association is very pleased that the Judicial Studies Board will become involved in the issues of training and competencies, because these are matters about which it feels fairly strongly. It wants to make sure that magistrates receive the proper training that they need, that their competencies are enhanced to enable them to continue to discharge their duty with the propriety that all would wish.
Lord Phillips of Sudbury: My Lords, I hope the Minister will forgive me for intervening again on a small point. Following the point made by the noble Lord, Lord Borrie, stylistically, if one is going to remove the second "or" and place it as the Minister says, and if that is perfectly correct, one ought also to take out the first "or" and put a comma there.
Baroness Scotland of Asthal: My Lords, I can assure your Lordships that the drafting pecularities will be addressed. But I am told that the draftsmen are content with the perfection that is currently before your Lordships.
"THE SUPPLEMENTAL LIST
(1) A list, to be known as "the supplemental list", must be kept in the office of the Clerk of the Crown in Chancery.
(2) A lay justice whose name is entered in the supplemental list is not qualified as a justice of the peace to do any act or to be a member of a committee or other body.
(3) No act or appointment is invalidated by reason of the disqualification of a lay justice under subsection (2)." After Clause 11, insert the following new clause
"ENTRY OF NAMES IN THE SUPPLEMENTAL LIST
(1) Subject to subsections (2) and (3), the name of a lay justice who has reached 70 must be entered in the supplemental list.
(2) The name of a lay justice who, when he reaches 70, is chairman of the lay justices assigned to a local justice area need not be entered in the supplemental list until the term for which he is serving as chairman has ended.
(a) proceedings are, or are expected to be, in progress on the day on which the lay justice reaches 70, and
(b) the lay justice is exercising functions in those proceedings as a justice of the peace,
the Lord Chancellor may direct that the name of the lay justice need not be entered in the supplemental list until the proceedings have ended.
(4) The name of a lay justice must be entered in the supplemental list if
(a) he applies for it to be entered, and
(b) the application is approved by the Lord Chancellor.
(5) The Lord Chancellor may direct that the name of a lay justice is to be entered in the supplemental list on the ground of incapacity." After Clause 11, insert the following new clause
"REMOVAL OF NAMES FROM THE SUPPLEMENTAL LIST
(1) A person's name must be removed from the supplemental list if he ceases to be a justice of the peace.
(2) A person's name must be removed from the supplemental list if
(a) his name is in the list as a result of section (Entry of names in the supplemental list)(4) or (5), and
(b) the Lord Chancellor directs its removal."
Page 7, line 1, leave out paragraph (c) and insert
"(c) the fact that a lay justice assigned to the area has ceased to be a justice of the peace or that his name has been entered in or removed from the supplemental list."
After Clause 15, insert the following new clause
"TRAINING, DEVELOPMENT AND APPRAISAL OF LAY JUSTICES
(1) Rules may (in addition to making provision under sections 10(4) and 15(6)) make provision for, or in connection with, the training, development and appraisal of lay justices.
(2) Such rules may make provision for committees, constituted in accordance with the rules, to have such functions as may be specified in the rules, including, in particular
(a) providing advice and support to lay justices in connection with their functions as lay justices;
(b) identifying the training needs of lay justices;
(c) appraising lay justices and reporting on the results of appraisals;
(d) giving or withholding approval for the purposes of section 15;
(e) advising the Lord Chancellor in relation to authorisations of lay justices as members of family proceedings courts or youth courts;
(f) granting or revoking such authorisations on behalf of the Lord Chancellor.
(3) The Lord Chancellor must ensure that appropriate training and training materials are provided for lay justices with a view to enabling them to comply with requirements as to training imposed by rules under section 10 or 15 or this section."