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Clause 11 - Resignation and removal of lay justices

Courts Bill [Lords] – in a Public Bill Committee at 10:00 am on 1st July 2003.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:00 am, 1st July 2003

I beg to move amendment No. 120, in

clause 11, page 6, line 17, leave out 'Chancellor' and insert 'Chief Justice'.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following amendments:

No. 124, in

clause 22, page 10, line 37, leave out 'Chancellor' and insert 'Chief Justice'.

No. 125, in

clause 22, page 11, line 9, leave out 'Chancellor' and insert 'Chief Justice'.

No. 126, in

clause 23, page 11, line 12, leave out 'Chancellor' and insert 'Chief Justice'.

No. 127, in

clause 24, page 11, line 18, leave out 'Chancellor' and insert 'Chief Justice'.

No. 128, in

clause 24, page 11, line 27, leave out 'Chancellor' and insert 'Chief Justice'.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

This is a series of probing amendments on a subject that the Minister must have known would arise at some stage in our proceedings. The point of the amendments is to try to divine what exactly the Department had in mind about the future role of the Lord Chancellor in relation to judicial appointments. I put the amendments forward not as a comprehensive list of all the places where one could substitute ''Chief Justice'' for ''Chancellor'', but simply as test cases to stimulate debate on the subject.

We are told that the Lord Chancellor will bow out of the process of judicial appointments. I welcome that. There have been strong arguments for a long time for the Lord Chancellor not to combine his various roles. There will be debates on the matter and proposals will be discussed. However, we are debating a Bill that will create a new raft of judicial appointment functions for the Lord Chancellor at a time when he is only Lord Chancellor for the interim period. His official title is included in the Government list and will change.

Judicial appointments are best left to the judiciary and, under my proposal, the person who will nominally be the head of the judiciary will be the Lord Chief Justice. It is open for the Minister to say that I have interpreted matters wrongly and that the head of the judiciary will continue to be the Lord Chancellor. I hope that he will not say that. The Minister could say that I had got it wrong and that another judicial personage will be the appropriate head of the magistracy. I should be content with that,

but it would be helpful to know the Government's thinking.

It is unacceptable for us to pass into law a new statute, which runs entirely counter to the Government's declared policy in such matters. I may have more to say when I have heard the Minister's reply. I do not want to labour the point now, but to explore his thinking about who should be making such appointments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I entirely concur with the hon. Member for Somerton and Frome.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I do not. [Interruption.] I appreciate the succinct reply of my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller).

The amendments would pre-empt decisions based on the outcome of the consultation paper on the independent judicial appointments commission, with which members of the Committee will be intimately familiar and which was announced at the time of the Cabinet reshuffle. It will be issued on 14 July and will explore all the points that the hon. Member for Somerton and Frome raised, such as whether judicial office holders should be appointed by the commission. It would be premature for me to form views on the outcome of the consultation process in advance, although clearly the principle of reducing the level of political input into the selection process between candidates for the judiciary is an aim with which the hon. Gentleman agreed. I have not heard disagreement with that concept.

Photo of Mr Gareth Thomas Mr Gareth Thomas Labour, Clwyd West

I understand what my hon. Friend is saying. None the less is it the Government's position that, although the precise replacement for the Lord Chancellor has yet to be determined and is the subject of consultation, the Lord Chancellor will not be involved in judicial appointments? Is there not some merit in the amendment because of an anomaly? If the Lord Chancellor cannot appoint, he should not be allowed to sack. However, different considerations may apply to lay justices as opposed to other members of the legal profession.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

My hon. Friend has asked a reasonable question, which I imagine will be covered in the consultation paper when published. I am not particularly sure whether the proposal of the hon. Member for Somerton and Frome about the Lord Chief Justice is desirable. I am not even sure whether the Lord Chief Justice would be keen on the concept. We shall have to study the matter when the consultation paper is published.

The hon. Gentleman slightly overstates his case when he talks about the Bill creating new appointment roles for the Lord Chancellor. The Bill simply re-enacts several of the Lord Chancellor's existing appointment powers. It may well be that there are questions to do with accountability that must be brought out in the consultation paper, but we will have to wait and see.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The Minister says that we will have to wait and see, but he will concede that it is bizarre that he is resting his argument on the consultation paper that is not due to be published until four days before Parliament rises for the recess. None of us know what the contents of it will be. The Minister may have some idea, because I am sure that in his short time in his new Department he has been involved in discussions about the contents of the consultation paper. However, we do not know what its contents will be; they remain in the ether. Given that the Minister is now under pressure from his own Back Benchers, as well as from the Conservative Benches and, in particular, the Liberal Democrats who tabled the amendment, will he concede that it may be wiser to take cognisance of the unhappy state that we are in of not knowing what will be in the consultation paper?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I should be happy to take cognisance of the state that we are in. There is a great deal of eagerness—rather than unhappiness—in our anticipation of the consultation paper. Given the path down which we have stated we will go, that is proper and reasonable. Several questions must be resolved. I do not want to pre-empt the consultation process. Just because publication will be on 14 July does not mean that the consultation period will end a week later.

The consultation will continue until November, when there will be ample opportunity for all hon. Members, and others outside this place, to have an input, consider and debate the merits of different aspects of the creation of an independent judicial appointments commission. As the Minister who has been involved in much of this process, it would not be right for me to pre-empt the views expressed in the consultation process. That is why I ask the Committee to resist the amendments.

Photo of Boris Johnson Boris Johnson Vice-Chair, Conservative Party

I wish to follow the hon. Member for Somerton and Frome and probe the Minister a little further on one point. Will he guarantee that, if we approve the clause, we will not allow whoever emerges as the successor to the Lord Chancellor to be an exclusively political figure in the removal of the magistrates? That is what we are talking about—removing magistrates from office. It would be bad and dangerous if whoever took over the office of Lord Chancellor under clause 11 was an exclusively political figure.

In ending the anomaly of the Lord Chancellor, the Government are trying to do something sensible. Why should a figure be judicial and political at the same time? If it is proposed under clause 11 that the successor to the Lord Chancellor should be the Secretary of State for Constitutional Affairs and that he will have the power to remove lay justices, that would be a serious matter. An exclusively political figure, with no judicial dimension to his office, would have the ability to remove magistrates. That would be wrong and a gross constitutional impropriety. Is the Minister willing to rule out the possibility that, when the Bill refers to the ''Lord Chancellor'', that may at some future time designate the Secretary of State for Constitutional Affairs?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am glad that that matter is beginning to come to light and that many hon. Members are thinking through the current anomalous situation of a twin-hatted Lord Chancellor with judicial and political roles. One of the points that must be remembered is that all appointments are made by the Lord Chancellor not in a judicial capacity, but as a Minister of the Crown. Most of the appointments are already undertaken under what may be defined broadly as political arrangements. No change is proposed to the current system under clause 11. The current arrangements will be continued.

I respect and understand the point that the hon. Gentleman is making. Just as in any consultation paper on judicial appointments, matters of removal, discipline, wayward justices and so forth must be dealt with. I do not want to pre-empt the contents of that consultation paper before it is published; these things should be announced in the normal way. Clearly, the hon. Gentleman has raised an important point: we cannot examine the appointments process in isolation from what would happen in terms of the removal of those playing a part in the judiciary. I have no doubt that some of those points will be touched on in the consultation paper. We have shared our concerns about the appointments process, and they will be part of the consultation process. It would not be right for me to go into too much detail at this stage, and I hope that the amendment will be withdrawn.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:15 am, 1st July 2003

I am grateful for the Minister's response as far as it goes. He expressed pleasure at the fact that some hon. Members are now thinking seriously about the position of the Lord Chancellor and the triple-hatted nature of his present incumbency. Some of us have been raising that issue for a long time, and certainly when the Government resisted any attempt at change by saying that it was perfectly acceptable for the Lord Chancellor to have multiple roles. We have been convinced for some time that that was an untenable position, and one that needed to be addressed.

The Minister's response raises several problems. We are required to vote into law today proposals that re-establish the position of the Lord Chancellor not just to appoint, but to remove justices from their posts, but the fact that we must wait for the judicial storming of the Bastille on 14 July before we even know the Government's thinking is—and I do not want to overdo it—an abuse of process. At the time of the Government's announcement, I said that the best thing that they could have done was to pull back the Bill and wait until they knew what they were doing. The hon. Member for Henley (Mr. Johnson) is right: by default, the role will fall to the Secretary of State for Constitutional Affairs. If the position of Lord Chancellor is no more and nothing else changes, his successor in title will be the Secretary of State.

We accept that the Government are serious about considering a new judicial appointments commission, or something similar. However, that prompts a new question. There will be a power to remove a justice from his office by instrument on behalf, and in the name, of Her Majesty. How will that instrument be

constituted in the absence of a Minister of the Crown to lay it before Parliament? In what way will the judicial appointments commission, as it is formulated, exercise its powers of appointment to and removal from office? Those questions need to be addressed as part of the consultation process.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

As the hon. Gentleman knows, I entirely agree with his points; I am sure that the Minister will take them seriously. By the time that we have all seen the consultation paper, the Bill will not have completed its stages—it is likely that the Bill will be on Report in our two-week sitting in September or in the autumn—so there will be time for the Government to table amendments clarifying the position in light of the consultation paper. Does the hon. Gentleman agree that it would be enormously helpful if the Minister told us that he already firmly intends to amend this part of the Bill in light of the consultation paper?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

That would be helpful. Unfortunately, I do not think that it is going to happen.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I am being prompted to pre-empt the results of the consultation by inserting amendments into the Bill before we know what the results of the consultation will be. Although the hon. Gentleman criticises the Government for moving too speedily when he regards consultation has not having been thorough, he is encouraging us to move in such a way in this case.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am not accusing the Government of being too speedy, but of leaving it too late and then doing everything in a rush. That has resulted in a muddle, which is par for the course.

My difficulty is not that the consultation process should have been completed before the Bill commenced its passage. I understand that there are complications and areas that will need to be addressed. However, given that the one thing about which we are absolutely clear, irrespective of the mechanisms involved, is the Government's intention for judicial appointments to cease to be the province of the Lord Chancellor, to pass into legislation a duty that falls exclusively on the Lord Chancellor seems to be to take obstinacy a little too far. There was not even going to be a Lord Chancellor until somebody consulted the rule book of the House of Lords and discovered that there needed to be one.

I would be much happier if the Minister were to come back on Report not with the finished product—I accept that he cannot do that; the consultation process will not be complete—but at least with a transfer of the function to the judiciary in some form. That would put the Bill into the correct form for it to be later amended, as it will inevitably have to be in the light of consultation and the final arrangements for judicial appointments. At the moment, it is in the wrong form. It has the wrong structure in that it places the duties in the hands of a Minister, a member of the Cabinet and the presiding officer of another place.

Photo of David Kidney David Kidney Labour, Stafford

I am having trouble following the hon. Gentleman's argument. If the Bill did not exist, the Lord Chancellor would be the person to appoint and sack magistrates. We could therefore

leave things as they are. I note that the hon. Gentleman did not propose any amendment to clause 10, which renews the Lord Chancellor's power to appoint magistrates in the future, presumably because the hon. Gentleman assumes that the Lord Chancellor's power will eventually be taken over by a judicial appointments committee. Therefore, we should be discussing the valid point made by the hon. Member for Henley about sackings, not appointments. As it would require an Act of Parliament to abolish the position of Lord Chancellor, would that not be the right time—after all the consultations had taken place—to debate where his functions should go?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I thank the hon. Gentleman for saying that the hon. Member for Henley, in supporting me, has a valid point even though I did not have one in the first instance. He obviously expresses it better than I do.

I made it plain that I was putting specimen charges before the Committee to try to ascertain the Government's intentions. I do not think that I have done a very good job of finding out what they plan to do, because they simply have not told us. The Minister says that we shall learn all on 14 July—I cannot wait. Similarly, I cannot wait for the Bill in the next Session of Parliament that will undo what we are busy doing today. It is an odd way of making law. We can do better than this and we would do better if the Government had a coherent view about constitutional reform and built their legislation into a comprehensive framework. However, they always fail to do that, and that is why we find the anomalies that make nonsense of the process of scrutiny in which we are engaged. However, despite all that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I beg to move amendment No. 15, in

clause 11, page 6, line 23, after 'satisfied', insert 'on reasonable grounds'.

The amendment would simply introduce a test of reasonableness. It is a small amendment, but we think that it ought to be made clear that the Lord Chancellor should have reasonable grounds for believing that lay justices are

''declining or neglecting to take a proper part''

in the exercise of their functions as justices of the peace. It is a small point, but it is important that the Bill should not say simply, ''if he is satisfied'', but that he should be satisfied ''on reasonable grounds''. I hope that the Government will not resist such a small and eminently reasonable amendment.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I hate to dash the hon. Gentleman's hopes, but I have several reasons for not accepting it. The first point, which is not to be dismissed lightly, is that the Lord Chancellor, like all Ministers, should always act reasonably. In this case, the Lord Chancellor should always have good reason for removing lay justices, and he should not do so lightly or frivolously. The ordinary principles of administrative law require him not to act

unreasonably in taking such decisions. As I recall from the many happy hours that I spent debating the Local Government Bill, the Wednesbury principles of reasonableness apply to public administration, so the amendment would add little, if anything.

Secondly, I am advised by those helping to draft the legislation that the amendment would add unnecessary terminology. That would have the further disadvantage of implying that, whereas reasonable grounds are required for dismissal in this type of case, they may not be required in other cases. I would be concerned that, because the phrase ''reasonable grounds'' was not included for other decisions, other could infer that reasonability was less desirable when they were made. That might seem a small point, but I am advised that it is significant.

I hope that those two rather robust arguments will have persuaded the hon. Gentleman to withdraw the amendment.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I think that the Minister is being a little unreasonable, but I shall not pursue the point. However, he and those who advise him must be aware that the reasonable test has been applied to the actions of Secretaries of State and Ministers in many areas of legislation. I have been involved in a number of Standing Committees, as has the hon. Member for Somerton and Frome, and we have seen such phrases in Bills.

The fact that all Ministers are under a general duty to act reasonably under the Wednesbury principles does not mean that reasonableness cannot be included in legislation. It is often to be found in legislation, and there is no reason why it should not be included in the Bill. However, I shall not waste the Committee's time by pursuing the point now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.