Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 139, in

clause 72, page 33, line 32, at end insert—

'( ) consult any body which is an authorised body for the purposes of section 27 of the 1990 Act or section 28 of the 1990 Act (as amended by section 40 of the Access to Justice Act 1999),'.

Mr Bill O'Brien (Normanton, Labour)

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

No. 142, in

clause 79, page 37, line 12, at end insert—

'( ) consult any body which is an authorised body for the purposes of section 27 of the 1990 Act or section 28 of the 1990 Act (as amended by section 40 of the Access to Justice Act 1999),'.

No. 145, in

clause 85, page 39, line 25, at end insert—

'( ) consult any body which is an authorised body for the purposes of section 27 of the 1990 Act or section 28 of the 1990 Act (as amended by section 40 of the Access to Justice Act 1999),'.

Mr Nick Hawkins (Surrey Heath, Conservative)

Again, I am indebted to the Institute of Legal Executives for briefing me and informing me that such important matters should be included.

The criminal procedure rules will govern the practice and procedure to be followed in the criminal courts. The Bill as drafted simply provides for the criminal procedure rules committee to

''consult such persons as they consider appropriate''.

In April 1998, the Institute of Legal Executives was added as an authorised body in its own right to the categories that already included the Bar Council and the Law Society. It was thus enabled to grant rights of audience to suitably qualified legal executives under section 27 of the Courts and Legal Services Act 1990. Currently, the institute is able to grant only civil and matrimonial rights of audience, but it has submitted an application to extend that to criminal proceedings. I hope that the Minister and his colleagues in the new Department will consider that application favourably.

The Institute of Legal Executives is also a body authorised to conduct litigation under section 28 of the 1990 Act, as amended by section 40 of the Access to Justice Act 1999, and it is sensible, in the light of those matters, that there should be provision for consultation with all the representatives of all the different parts of the legal profession, including the institute. That would ensure that all the people consulted had knowledge and experience of the rules and criminal processes. Our amendment No. 139 would achieve that.

Our amendment No. 142 would make exactly the same change for family procedure rules, which we think would be helpful, and amendment No. 145,

which is to clause 85, would achieve the same aim in relation to civil procedure rules.

I hope that the Minister understands our concerns, which we share with the Institute of Legal Executives, and that even if he cannot accept the amendments today, he will continue to keep the matter under review and perhaps introduce similar Government amendments at a later stage.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I will examine the matter raised tangentially by the hon. Member for Surrey Heath in respect of the Institute of Legal Executives in more detail when I get back to the Department. First, however, I should like to deal with the three amendments. They would require formal consultation with the bodies listed in sections 27 and 28 of the Courts and Legal Services Act 1990, including the General Council of the Bar, the Law Society, the Institute of Legal Executives and others, before the procedure rule committees make any rules of court or submit them to the Lord Chancellor.

The first point to note is that the Bill does not prevent consultation with any of those bodies. Indeed, it is entirely likely that the procedure rule committees will try appropriately to consult bodies that they feel could add to their work. I assure the Committee that major revisions of procedure rules will have full public consultation, which is a proportionate and sensible approach. For lesser procedural issues and minor matters, there may be a requirement to have less formal processes for consultation, but to have to go through formal consultation on smaller, uncontroversial matters would be excessive.

Given that major revisions will have full public consultation, and that consultation with any of the bodies listed is likely, I believe that it is right to leave flexibility in the process of consultation. The formality that the amendments would introduce would be unduly prescriptive and rigid, and as the procedure rule committees will be made up of experts, they will be well placed to determine the extent of their consultation before making rules. On that basis, I hope that the amendment will be withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful to the Minister for his opening comment and the commitment to examine the other issue, which he said that I raised tangentially. I am sure that the Institute of Legal Executives will also be grateful for that assurance. I am not entirely happy that the Minister cannot accept our proposals, but his words are helpful and will be further considered by the institute before Report. At this stage, however, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 75, in

clause 72, page 33, line 38, leave out

', with the concurrence of the Secretary of State,'.

This is a probing amendment. We wonder whether we need the phrase

''with the concurrence of the Secretary of State''.

When I first read the wording, my worry was that it would provide a recipe for further battles between the

Home Secretary and the Lord Chancellor or judges and lawyers more generally. We have seen quite a few of those battles in recent times. The Home Secretary seems to be addicted to attacking judges and lawyers, whenever he wants a cheap headline. However, that has not served him well—it has merely upset many of the senior judiciary. It has been made clear in another place that judicial independence is a crucial part of the United Kingdom's constitutional arrangements. I hope that, one day, the Home Secretary will learn that it is not sensible to make the sort of comments that he has made about the way in which our legal system operates.

The amendment seeks to remove the provision in clause 72 that says that the Lord Chancellor has to have

''the concurrence of the Secretary of State.''

It is not clear whether the provision refers to the Home Secretary or to any other Secretary of State. I have heard the Minister mention that the term ''Secretary of State'' may be regarded more generally. However, in the light of the Government's announcement that they intend to abolish the title of ''Lord Chancellor''—if they can get away with it—it is slightly surreal to see the Lord Chancellor referred to in so many parts of the Bill, and particularly in this clause. I shall therefore listen with interest to what the Minister has to say.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I would like first to press the Minister to clarify which Secretary of State is referred to in the clause. Secondly, does not the involvement of the Secretary of State—or the Home Secretary—muddy the waters with regard to the separation of powers, and lead to the possibility of undue and inappropriate influence being exerted on the rules that are made by the committee? Would it not be more appropriate simply to leave out the reference to the ability of the Home Secretary or other Secretary of State to alter or to amend the rules made by the committee?

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I am slightly perplexed as to why amendment No. 75 seeks to remove the need for the Home Secretary to concur with the rules made by the criminal procedure rule committee, because the consequence of that would be to give the Lord Chancellor alone the power to allow, disallow or alter the rules made by that committee. I would have thought that Opposition Members wanted Secretaries of State to adopt a more collegiate approach. The strongest reason for the Home Secretary to be involved in that area is the fact that he has wide responsibility for criminal justice policy. I believe that, in a policy sense, it is right for the Home Secretary to be involved in and to concur with any changes to those rules.

I believe that a closer and increasingly integrated approach should be adopted by all three Ministries concerned with criminal justice, and that we should ensure that there is greater consistency, collaboration and discussion between all branches of the criminal justice service. That approach has already been adopted, but to reiterate it in the clause is the right way forward.

To answer the question asked by the hon. Member for North Norfolk, the term ''Secretary of State'' refers to the Home Secretary. I understand that the Interpretations Act 1978 allows references to Secretaries of State in legislation to be generic, in the sense that any Secretary of State has the statutory ability to take on the function of any other Secretary of State. A generic reference is therefore adequate for the purposes of drafting. There is no particular issue at stake, because the Lord Chancellor currently performs many of those functions in his capacity as a Minister of the Crown, and, in future, there will be a separate Secretary of State for the Department for Constitutional Affairs, who will work in tandem with the Home Secretary. I therefore do not believe that there is a problem. It is right that different Ministries should work in parallel with each other on criminal procedure rules. That is why the Committee should resist the amendment.

Mr Nick Hawkins (Surrey Heath, Conservative)

I do not think the Minister can claim that his colleagues at the most senior level of Government have been operating recently in a collegiate fashion. The huge rivalries and resentments within the Cabinet are very much in the public domain. For the Minister to say that senior Ministers in the Government should work in a collegiate manner takes some gall.

I understand that the Minister is not going to accept our amendment. I said that we were probing the matter, and we have succeeded in teasing out the fact that the phrase ''Secretary of State'' refers to the Home Secretary. As I anticipated when tabling the amendment, it may be a recipe for further battles in future when the Home Secretary seeks to be as aggressively—and often mistakenly—populist as the current Home Secretary. However, I am not going to take up the Committee's time by dividing on the matter today. Having placed the point on the record, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 76, in

clause 72, page 33, line 39, leave out ', disallow or alter' and insert 'or disallow'.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to discuss the following:

Amendment No. 77, in

clause 72, page 33, line 41, leave out 'or altered'.

Amendment No. 82, in

clause 79, page 37, line 18, leave out ', disallow or alter' and insert 'or disallow'.

Amendment No. 83, in

clause 79, page 37, line 19, leave out subsection (4).

Amendment No. 84, in

clause 79, page 37, line 20, leave out 'or altered'.

Amendment No. 89, in

clause 85, page 39, line 31, leave out ', disallow or alter' and insert 'or disallow'.

Amendment No. 91, in

clause 85, page 39, line 34, leave out 'or altered'.

Mr Nick Hawkins (Surrey Heath, Conservative)

This group of amendments seeks to make changes in relation to the criminal procedure rules. There are similar amendments to clauses 79 and 85 for family and civil procedure.

In our amendments, we have said that the Lord Chancellor should be able to allow or disallow the rules but not to alter them, because the criminal procedure rule committee and the equivalents for family and civil procedure should be making the decisions. The Lord Chancellor—any Lord Chancellor—should not then—

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I am slightly confused. The hon. Gentleman suggests that the Lord Chancellor should be able to allow or disallow, but amendment No. 76 states

''leave out ', disallow or alter'''.

Will the hon. Gentleman clarify that point?

Mr Nick Hawkins (Surrey Heath, Conservative)

The hon. Gentleman may be right to point that out. My point is that we intend in the group of amendments that the Lord Chancellor should not be able to substitute his judgment for that of the procedure rule committees that make the decisions and that are specialists in the various sectors: crime, family law and civil procedure. We seek to put in some protection to ensure that the committees call the shots and that the Lord Chancellor should not be able to tinker. I hope that the Minister will understand what we are seeking to achieve.

Mr Stephen Hesford (Wirral West, Labour)

Is it the hon. Gentleman's understanding that the criminal procedure rule committee has a mandatory function or an advisory function, with the Executive function left to the Lord Chancellor and others?

Mr Nick Hawkins (Surrey Heath, Conservative)

The criminal procedure rule committee, and the similar committees for civil procedure and family law, will, as clause 72(1)(a) states,

''consult such persons as they consider appropriate''.

They will then make the rules signed by a majority of their members, who are experts used to dealing with such matters at the sharp end. It should not then be for the Lord Chancellor to tinker. That is our proposition shortly stated. I hope the Minister will take it seriously, and I will listen with interest to his response.

Mr Norman Lamb (North Norfolk, Liberal Democrat)

I rise to speak in support of the amendments and to deal with the intervention from the hon. Member for Wirral, West (Stephen Hesford), who describes the committee as conceivably advisory, when it is there to draft, prepare and consult on the rules. Its function is clearly far more statutory than simply advisory. It would be bizarre to create a committee stuffed full of expertise, as the Bill describes, but then to allow the Lord Chancellor to override that and to vary or to disallow the rules that it makes. Surely if we create a committee with the expertise to enable it to draft, prepare and consult on those rules, it should be left to it to confirm them. I agree with the amendment, which would delete ''disallow or alter''.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I am slightly taken aback by the views of Opposition Members, who are usually guardians and bastions of accountability and of ensuring that Ministers are held to account for decisions that are taken. We envisage that the criminal procedure rule committees will rightly make the rules for procedures in courts daily. Those rules, however, are made with Ministers' approval, and provisions are set out for altering or disallowing them so that, in certain extreme or rare circumstances, any disagreements or discussions can be resolved quickly and the process can move on.

If there were a disagreement between procedure rule committees and the Lord Chancellor, the Lord Chancellor's ability to alter those rules would mean that there was no eternal toing and froing between those committees. That ability would be used in only the most extreme and unforeseen circumstances. However, we are in effect talking about secondary legislation, so we need that safeguard, not least so that Ministers are accountable, not least to Parliament. My hon. Friend the Member for Wirral, West was right to raise the general issue about broader accountability.

We want to delegate much of the work to the procedure rule committees, but we want that long-stop capability in place. This matter was the subject of quite a lot of debate in the other place. The Government listened to much of that debate, and accepted that the ability to alter the rules would be used only in rare and extreme circumstances, and that such alteration would be subject to the affirmative resolution procedure. That would give Parliament a higher level of scrutiny than the proposal to allow the Lord Chancellor simply to alter the rules. It would also ensure that Parliament had the opportunity to consider fully the exercise of that power by the Lord Chancellor.

We have already conceded the need for the affirmative resolution procedure, so I believe that we have struck the right balance to ensure that Parliament has its say in overseeing the powers of the Lord Chancellor in this respect. We have therefore completed the credibility process. I hope that hon. Members can now see why we need the provision to alter powers in that manner.

Mr Nick Hawkins (Surrey Heath, Conservative)

In the light of the Minister's remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clauses 73 to 76 ordered to stand part of the Bill.