This is a probing amendment. Who is this person acting on behalf of the Lord Chancellor who puts in his first appearance in subsection (3)? The Lord Chancellor is not only a person, but a Department. Anyone with authority in the Department forms part of the personage of the Lord Chancellor, so why do we need to specify an additional person only in this instance in the Bill? The Minister may be able to enlighten me about why that person must be empowered to act on his behalf in this particular function.
Amendment No. 123 makes a slightly more substantive point. Subsection (5)(c) sets out the rules for a contested election for the chairman or deputy chairman of the local justice area, and deals with the franchise for any such election. The terms in which the paragraph is couched are unnecessarily open to misinterpretation and dispute. Subsection (5)(c) states:
''the election is made by those experienced as lay justices in the local justice area''.
That term is open to various constructions. I should not like to determine who is an experienced lay justice rather than simply a lay justice. At what point does the term ''experienced'' come into play?
I would have thought, and my amendment would ensure, that the appropriate requirement is for someone to be assigned to and to act as a lay justice in the local justice area for which the election is held. The meaning of anything expressed more vaguely than that is open to challenge, and I cannot understand why the subsection is couched in those terms. The Minister may tell me that there is a very good reason why a lay justice must be an experienced lay justice, in which case he may be able to tell me by what criteria that experience is to be judged.
I am grateful for the hon. Gentleman's amendments, although I may not want them to be accepted. However, they are part of my own education about current processes, and it has been quite interesting to consider some of the points that his amendments have prompted.
On amendment No. 122, the clause provides for the magistrates of local justice areas to elect from their number a chairman and one or more deputy chairmen, and confers a rule-making power on the Lord Chancellor as to how that will operate. Subsection (3) makes provision for the Lord Chancellor, or a person nominated by him, to authorise a lay justice to
continue to hold office as chairman or deputy chairman to hear specified proceedings. That would enable the chairman or deputy chairman to continue to preside over the court to hear a specified, partly heard case.
Amendment No. 122 would remove the express provision that ensures that the Lord Chancellor may delegate his power under the clause. There may be a need for such a power to be exercised at short notice. For example, if it suddenly becomes clear that a case will overrun, there can be no guarantees in such circumstances that the Lord Chancellor will personally be available. Therefore, arrangements for delegation clearly need to be in place to ensure that the administration of justice is not undermined.
The hon. Member for Somerton and Frome asked an interesting question about the powers and which person they are delegated to. The secretary of commissions has delegated powers from the Lord Chancellor—there is a civil servant to whom much of these powers can be delegated. As a matter of law, specific statutory authority is not generally required for a Minister to delegate his function to a civil servant in his own Department. That is known as the Carltona principle, after the case in which it was established. However, clarification of the provision is necessary to put the matter beyond doubt because it relates to the appointment of magistrates. The people who drafted it felt that it was worth while explicitly to state that it was possible to delegate on these particular matters.
Amendment No. 123 would amend the provision in clause 17(5)(c). It would remove the possibility of providing in rules that only magistrates with experience in a local justice area can vote in a contested election for a chairman.
The clause re-enacts those parts of the Justices of the Peace Act that relate to bench elections. It could be used to prevent someone from voting in a contested election if they have been assigned to the area only the day before and are not au fait with its local dynamics—at least that is what it says in my note. However, I have subsequently scribbled that the current rules do not restrict the right to vote on the ground of experience. We do not enact the rules at present, so we do not have the set of regulations in place, and I can tell the Committee that we have no intention at the moment of changing the rules to insert such an experience qualification.
''the election is made by those experienced as lay justices''
could be interpreted in such a way that people such as my hon. Friend the Member for Lewisham, East could participate in the election. The Minister needs to make it clear that the supplemental list is excluded.
My hon. Friend is particularly eagle-eyed. I have sought assurances about that, and I have been told that people on the supplemental list are excluded.
Given my comment about not having any intention at present of excluding such lay justices, I hope that the hon. Member for Somerton and Frome will withdraw the amendment.
I am grateful to the Minister for those explanations. He agreed that there is no legal impediment to devolving the responsibility within the Department to a civil servant: subsection (3) simply makes that explicit. I accept that, and I will not pursue the matter further.
On the second point, the explanation was a little threadbare in places. I think that the Minister knows that. Simply because the previous enactment said something does not necessarily mean that that is the right way to cater for any eventuality. If the Committee can make improvements, it is sensible to do so.
When we are establishing the franchise for a general election, we say that we give the vote not to people who are experienced at living in a constituency, but to the people who live in a constituency. It is very odd to put that term in there. I accept that it will probably have little effect in practice, but it begs the question: if it can be misconstrued, why put it into statute?
As I said, I welcome that the hon. Gentleman has flagged up the matter. I was not aware of that provision. I will look more closely at the amendment to see whether there is any scope for change because his point is reasonable, although we have not enacted any regulations under the provision, and I do not intend to do so.