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Third Standing Committee on Delegated Legislation
Wednesday 31 March 2004
Mr. Bill O'Brien
Draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2004
2.39 pm
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): I beg to move,
That the Committee has considered the draft Lay Magistrates (Eligibility) (Northern Ireland) Order 2004.
The order is to be made by powers conferred by the Justice (Northern Ireland) Act 2002. The draft order was laid before the House on 11 March and prescribes a number of requirements for appointment as a lay magistrate, which is a new judicial office that we are establishing in Northern Ireland. It also deals with situations in which there is an obvious or potential perceived conflict of interests, and when a person should not, other than in exceptional circumstances, be appointed as a lay magistrate.
The draft order is supplemented by our statement of policy, which has, I hope, been sent to all Committee Members and placed in the Library. That statement sets out our thinking on the inclusion of the offices and occupations listed in the draft order. It also provides guidance for other situations in which there may be a conflict that we will need to address, but which might, after careful consideration on a case-by-case basis, be accommodated by allowing the person to be appointed in the same or in an adjoining county court division.
Lady Hermon (North Down) (UUP): It is delightful to sit under your Chairmanship this afternoon, Mr. O'Brien, and I am pleased to be in Committee with the Minister for the first time. I read the policy document carefully, having only received it this morning—but I thank the Minister for my having received it before this sitting. What justification is there for the omission from that document of the new office of the chief inspector of criminal justice, which is created under the 2002 Act?
Mr. Leslie: The list of posts that might need to be addressed are detailed in annexe D to the policy document, but that list is not exhaustive. We put it together to give applicants guidance and to highlight the fact that there may be a conflict, but that it might not necessarily be a direct conflict.
I will look more closely at whether more recently created posts in the Northern Ireland criminal justice system need to be considered in respect of ineligibility. However, the list that we are discussing relates to current posts, not potential posts or those that are not yet established. As changes to the criminal justice
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system occur, we can amend the order. That is the rationale for the lists and the different criteria. I shall explain more during my comments.
Lady Hermon: I should like to put on the record the fact that the appointment of the chief inspector of the criminal justice in Northern Ireland was announced in June 2003 by the Minister of State, Northern Ireland Office, the right hon. Member for Warley (Mr. Spellar). There seems to have been an oversight in not including that post in the order.
Mr. Leslie: The hon. Lady raises a fair point. However, I am not wholly sure that inspectorate positions have the same potential to give rise to direct conflicts of interests in individual cases as, say, police officers and other members of the prosecution services who in their day-to-day work deal with cases appearing before a court that would potentially present a conflict of interests if they were appointed to act simultaneously as a lay magistrate. An inspectorate position is slightly different. I shall consider the issue further, but I am not wholly convinced that a complete exclusion is necessary.
Through the draft order, we aim to underpin the principles of judicial independence and to maximise the pool of potential lay magistrates by minimising the ineligibility constraints. Where conflicts of interests exist or are perceived to exist, we want, where possible, to restrict ineligibility to the county court division in which it occurs. The outcome of the draft order and the underpinning policy will be to ensure that those who are appointed to the office of lay magistrate are not engaged in any activity or do not hold offices that are or are perceived to be in direct conflict with their duties as a holder of that judicial office. That is pertinent to the point that the hon. Lady raised.
I will return to the details of the order in a moment, but it would be useful if I provided some background to the creation of the magistracy in Northern Ireland and to the progress of this statutory instrument. The creation of the new office is an important initiative that is grounded in the Belfast agreement, which endorsed the creation of a justice system that would be responsive, encourage community involvement and promote public confidence. It also provided for a review of the criminal justice system in Northern Ireland.
The review group considered as part of its remit,
''measures to improve the responsiveness and accountability of, and any lay participation in the criminal justice system''.
It stated that it was
''guided by a desire to propose practical confidence building measures for a fresh political climate.''
In particular, the group noted that many of the views expressed during its consultation process highlighted the benefit of a strong lay magistracy. The Government agree that such a measure would establish a link between the courts and the local community, and I think that most hon. Members would welcome that. The Government reached the view that it would enhance public confidence in the criminal justice system in Northern Ireland.
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To encourage lay involvement in the justice system, the review group report recommended that the office of lay magistrate be created. It found that lay persons should continue to sit alongside professional magistrates in the youth courts and the family proceedings courts, and that they should continue to hear complaints with a view to issuing summonses and warrants. The review recommended that lay magistrates should perform certain criminal justice functions that are currently performed by justices of the peace and all functions that are currently performed by lay persons sitting alongside resident magistrates in youth and family proceedings courts—criminal proceedings for youth, and care proceedings for children and young people. The review group also recommended that efforts should be made to ensure that the lay magistracy is as reflective of Northern Ireland society as practicable, subject to and consistent with the overriding principle of appointment on merit only.
During the passage of the Justice (Northern Ireland) Act 2002, that issue was considered, although I was not a member of the Committee that considered the legislation. Enabling powers were taken in that Act to provide by way of an order such as the one before us for proscribing those who should not be eligible for appointment to that office—for example, by virtue of distance from the court locality, the office that they hold, or personal circumstances. In determining the offices and occupations that would normally render a person ineligible for appointment, we have applied the following criteria: the authority, influence and profile of the office and occupations listed; the extent of their connection with the criminal justice system; the interfaces and associations with those closely related to those offices and occupations, given their involvement in the criminal justice system; and the relatively small size of the Northern Ireland jurisdiction, which is approximately equal to Cheshire in size and to Kent in population—1.6 million.
Lady Hermon: The vast, vast, vast majority of members of the Police Service of Northern Ireland, the Northern Ireland Prison Service and the other bodies listed in the order are men, and their spouses are to be excluded from being lay members. What will be the impact of that? How can we encourage more women to join the lay magistracy when the order will exclude so many of them?
Mr. Leslie: I hope that the order does not have the effect of excluding women from applying to join the lay magistracy. Our objective is a common one; we want to reflect Northern Ireland society as a whole. That means that there must be a level playing field for applications from men and women. I appreciate the hon. Lady's point that there are exclusions for a number of posts whose occupants are predominantly male and, as a consequence, their spouses may be excluded as well. If everyone in those posts were in an opposite sex partnership, equal numbers of men and women would be excluded, even though one group of people would be excluded because of its occupation. I do not believe that those ineligibility criteria restrict
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the pool of potential applications enormously; there is a much wider pool of the population at large that will not be affected by them.
We sought to minimise the absolute exclusions and the ineligibilities where possible. The Lord Chancellor has an overriding discretion, on a case-by-case basis, to waive some of those ineligibilities should exceptional individual circumstances arise. However, I do not believe that the exclusions are so wide as to effectively discriminate against men or women to an unfair extent.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): Will the Minister explain precisely how the Lord Chancellor's discretion will work? Will any person who wishes to apply to become a lay magistrate but who thinks that he or she might not be eligible under the draft order be able to apply to the Lord Chancellor? Will anyone who has been turned down because he or she falls under any of the categories in the draft order have a right to appeal to him? Will the Minister be a little more precise about the Lord Chancellor's role?
Mr. Leslie: I am glad that the hon. Gentleman raised that point, because it is addressed in my brief. If I may, I would like to proceed in the order that I have before me. I hope that I will answer his question and I will certainly give way again if he feels that I have not done so.
Hon. Members should know that a previous draft of the order was debated in the House on 16 June last year. We decided that it was important to take on board many of the helpful points made during that debate, and I believe that those points have been addressed satisfactorily. Following that debate, between December 2003 and February 2004,we engaged in a fairly widespread public consultation on our proposals. We sent out more than 440 sets of documents to key stakeholders in Northern Ireland and we received 70 responses. Broadly, people were supportive of the proposals on eligibility and of the conclusions that we set out in the associated policy.
A number of issues emerged and in response to them we made some further adjustments to the draft order and to our policy. References of a technical nature were adjusted, particularly how either House of the Irish Parliament is referred to. We made a number of other technical changes: for example, we deleted the words ''exceeding one month'' from article 2(j), thereby making persons ineligible for appointment if they have been convicted of an offence punishable by any term of imprisonment, rather than merely by a term exceeding one month. I hope that that answers some of the arguments that were raised in the previous debate. In addition, by removing the upper age limit of 65 for consideration for appointment, we have enabled potential applicants between the ages of 65 and 70 to be considered as well.
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