My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Irvine of Lairg).)
moved Amendment No. 43:
After Clause 13, insert the following new clause—
(1) There shall be kept in the office of the keeper of the rolls for each local justice area a supplemental list as provided for by this Act (in this Act referred to as "the supplemental list").
(2) There shall be entered in the supplemental list the name of any justice of the peace who has attained the age of 70.
(3) The name of a justice of the peace shall be entered in the supplemental list if he applies for it to be so entered and the application is approved by the Lord Chancellor.
(4) A person's name shall be removed from the supplemental list if—
(a) he ceases to be a justice of the peace; or
(b) the Lord Chancellor so directs.
(5) A justice of the peace for any area while his name is entered in the supplemental list shall not by reason of being a justice for that area be qualified as a justice to do any act or to be a member of any committee or other body."
Before I speak to Amendment No. 43, I declare an interest. I have had the pleasure of receiving a letter from the noble and learned Lord the Lord Chancellor informing me that I am included on the supplemental list.
This amendment is not of the greatest judicial importance but I am sure that many Members of the Committee will agree that it is important in human terms. It is an amendment about which I feel most strongly as I believe that deleting Sections 7 to 9 of the Justices of the Peace Act 1997 has no merit at all. At Second Reading (at col. 21 of Hansard of 9th December) I challenged the Government to explain why they wished to abolish the supplemental list.
The lay magistracy can trace its heritage to the late 12th century when Richard I commissioned knights to preserve the peace. Since that time the Justices of the Peace, as they have been known since 1361, have worked tirelessly in the pursuit of justice in this country.
The Auld report provides the astounding figure that lay magistrates deal with about 91 per cent of all summary criminal cases. The Auld report also states that the lay magistracy is,
"unpaid, receiving only a modest allowance for financial loss and subsistence".
Furthermore, Justices of the Peace,
"are required to sit for a minimum of 26 half-day court sittings each year, but on average sit 40 or more times a year".
Surely that dedication to a job with very few rewards which makes such a difference to the local community should be recognised by inclusion on a supplemental list. I am wholeheartedly opposed to the abolition of the supplemental list which strikes me as an unnecessary attack on people who have given at least 15, and often up to 30, years of their life to the community by their work on the Bench.
Membership of such a list enables a retired lay magistrate to sign passports and witness signatures—something which professionals such as doctors rarely have time for nowadays and, if they do, they probably require a fee. Moreover, supplemental justices often contribute a great deal to community projects, mock trial competitions and recruitment drives, and for this reason are of substantial ongoing value to their community.
In the letter which the noble Baroness, Lady Scotland, sent to noble Lords over Christmas, she stated that the Government believe that the list now serves little substantive purpose. We hope that that does not mean that when people reach the age of 70 they are to be airbrushed out of history. But I was encouraged to see that the noble Baroness went on to state that she recognises the need to value the achievement of retired lay magistrates, and that the Government would consider with care the points raised at Second Reading. I hope that we shall be told that as a result of that further consideration our fears can be allayed. This is an important matter for so many people. I beg to move.
I should like to associate myself very strongly with the remarks of the noble Baroness, Lady Seccombe. At Second Reading, I am afraid that I was guilty of rather ponderous levity in my speech on the subject, but what I said masked real concern. The original proposal bears all the hallmarks of a Whitehall tidying-up exercise. I should like to know whether a costing exercise was undertaken to find out the expense of having a supplemental list.
I do not think for one minute that anyone would dispute the fact that magistrates ought to finish their operational duties at the age of 70. Unlike other members of the judiciary, we are realistic in that respect. However, one cannot regard 70 as the end of meaningful life as we know it. This is the last place where we could hold such a view.
We must not throw the baby out with the bath water. We should think of the important contribution that retired magistrates could make in terms of education. The noble Baroness talked about the mock trial system, and we must also consider education in schools, education with the other agencies, training exercises and the like. Then we come to the question of being a counter-signatory to some quite important documents, such as a shotgun certificate. I happen to think that a magistrate's signature on a shotgun certificate is rather important, instead of having a willy-nilly trawl through the rest of the community in the hope that someone can be found who has the time, inclination or expertise—that is the point—to do it. Above all else, that expertise comes free, so I beg the Minister to look kindly on the amendment.
I also support the amendment. I challenged the Government when they said in the noble Baroness's letter, to which reference has been made, that the list now serves little substantive purpose.
I want to refer to the experience of Mr Alex Demetriades, who has written to me. For 25 years, he was a member of the Manchester City Bench and ended up as chairman. Since that time, he has been on the supplemental list. Beyond signing documents, in those 10 years he helped with Victim Support and Witness Support schemes, assisted in mock trials and in open days as part of the "Magistrates in the Community" project.
Those schemes all have the support of the Lord Chancellor's Department. The specialised experience of magistrates really adds something to them. Far from being of little substantive purpose, the list has a real object to achieve.
I too support the amendment. In practice generally today, to be a magistrate on the supplemental list is regarded as something of an honour, and it costs the Government nothing. It will have been an honour very thoroughly deserved. The 70 year-old magistrate will have been, in all probability, some 15, 20 or 25 years or more on the Bench as a serving magistrate. In itself, that will have been a record of public service, and public service volunteered to the community. It will have involved many sittings throughout each year, often after no small inconvenience.
The service will have been given to the fellow members of the Bench, to the Court Service and, in the widest sense, to the village, the township and the county. All in the best British tradition, it will have been understated, unpublicised, unpaid and unsung. However, it will have been very valuable. Surely we can let people remain on the supplemental list. Perhaps the Minister, in his wisdom and generosity, would accept such an amendment so cogently moved.
Certainly, the service given will have been very decent, conscientious, exemplary and, I rather think, lengthy, and all of that in an increasingly important sphere of British society and its daily life. The administration of justice at grass-roots level is of growing importance to our communities, wherever they may be. That service also comes at a time of rapid and bewildering social and economic change, in which magistrates must always make sound and subsequently much-scrutinised judgments.
What is required is an act of generosity by the Government. The supplemental list might be seen as a roll of honour. Let it be so for any justice of the peace who has attained the age of 70 years.
There is a general feeling that the intention of the provision needs to be looked at again. I certainly share the commendations, especially that of my noble friend Lord Jones, that have been given about the standing and stature of magistrates who have served a very long time. Perhaps the Minister will say something—I am sure that it will be honest, not kind—about the value of the magistracy in our law.
It is intriguing that at one stage there must have been general acceptance that there needed to be some form of semi-retirement at the age of 70, because the supplemental list came along. If the relevant age is not 70, what is it? Are we saying that there should not be any supplemental list at all? If there is to be a supplemental list, at what age does one become eligible for or compulsorily retire to it?
The matter is not unique to the magistracy. We all know about voluntary organisations. As the Committee well knows, I am strongly involved in the Co-operative movement, in which there have been constant arguments and battles about the term "ageism", and as to what age one should retire from being a director of a local co-op society. Some societies have an age limit and some do not; I am not arguing as to which are the better. Without a supplemental list, questions about age limits are being asked in our society. I know that the Minister listens with care to such matters. I hope that he will recognise the strength of the argument, and that the debate raises an important point for those such as myself who argue that perhaps consideration should be given to some other age. If it is not, that is like the situation in the American Senate. Someone can be a senator whatever age they are when they are returned, which is by election.
If one wants to give the Lord Chancellor and his staff the right to decide arbitrarily that someone is past it because they have reached the age of 70 or 80, others will argue that some who are under 70 are already past it. Ageism and retirement is a big issue. My noble friend Lord Jones is absolutely right. The arbitrary age at which one retires, from either employment or office-holding in many organisations, is a genuine issue. Given the powers of magistrates and their courts, it is more important for them than for others. They make big decisions, and one needs to be satisfied that they are compos mentis, as I think is the term.
I declare an interest in that last February my wife retired from the magistracy. With due respect to all that I have heard, I do not believe that agreement to any measure today will prevent retired magistrates assisting in mock trials or assisting in training. However, an important past consideration should be recognised. I am unsure whether the amendment is in the correct form. It will be up to my noble friend to take it away and return on Report or later with a suitable amendment.
Nothing that I have heard today should detract from the way in which people up to the age of 70 have discharged their responsibilities without pay. The lay magistracy is an important cornerstone of our society. I know that my noble friend recognises that from her highly distinguished career at the Bar. My wife has told me of the way in which the bulk of magistrates approach their duties. In my view that emphasises again and again the importance of the magistracy.
I urge my noble friend to reconsider what the Government have done in relation to this matter. I do not believe that the proposed new clause is in the right form, but I hope that she will say that the Government will reconsider it and return at a later stage with a suitable provision.
I hope that I shall be able to please a number of noble Lords this afternoon. I am very surprised that the noble Baroness, Lady Seccombe, has reached an age at which she could receive such a letter from the Lord Chancellor.
After such an onslaught I feel like saying, "I'll come quietly". I join with all noble Lords who have sung the praises of magistrates who have served so loyally for so long until the age of 70. I do not believe that the magistracy can be unsung again. It cannot be said that it is unsung as that song has been heard clearly around the Committee.
My noble friend Lord Clinton-Davis is right to say that there is no need to be on a supplemental list to do any of those matters to which he alluded such as mock trials or helping with training, and so on. However, I certainly take on board what all noble Lords have said.
The amendment is not in the precise form required. We shall have to consider the consequences of such a provision on other parts of the Bill. Although I am more than willing to say in principle that we accept the import of the amendment, we shall have to consider the other sections of the Bill and ensure that such a provision is in its proper form.
I do not want to set a discordant note, but noble Lords will be aware that the supplemental list was introduced in 1941 because, regrettably, during the previous 15 years some people who were either elderly or infirm had refused to retire. It was brought in for that reason, and although I accept that then the age was 75, the way in which the supplemental list has been viewed has changed over the years. It may now be perceived as a role of honour, but it was not always thus.
I am glad that the noble Baroness has shown herself to be open minded on this matter. As I used to say to my clients, it is better to confess before one is found out. I am only 94, but I have known people who have been finished at 50, others who were scintillating at 60; and others who were brilliantly scrutinising at 70. To get rid of people, even when they are on top of the world, just because they have reached the immature age of 70 seems to be utterly wrong. We must bear in mind that we are all different. I confess that a few of us are biological freaks, although I am still more or less in possession of my senses. I remember Lord Shinwell who at the age of 100 gave great service not only to our nation but also to his party. To have a supplemental list, as recommended by my noble friends, would be a great advantage.
I add my thanks to the Minister for the way in which she has approached the matter. All magistrates understand the reasons for a cut off at a due date and for that to be known from the beginning. However, it is nice to know that the matter may not end as we had feared. We look forward to returning to it on Report when we hope we can say, "What wonderful news". At this stage, I beg leave to withdraw the amendment.
In moving Amendment No. 44 I shall speak also to Amendment No. 45. Clause 15 sets out the circumstances in which a chairman or deputy chairman may have a right to preside in court or to chair a meeting of justices. That is merely a drafting point. The reference in the Bill to the words "sitting or other" is an archaic practice and we see no reason for its inclusion. My redrafted version of the subsection would state simply that,
"If the chairman for a local justice area is present at a meeting of lay justices assigned to or acting in the area, he must preside".
That reflects the fact that any meeting will include any sitting of a Bench.
I would be grateful if the Minister could explain why the archaic practice of including the extra words "sitting or other" need to be retained, or she may feel able to accept the amendment. I beg to move.
I am grateful to the noble Baroness for raising this point. I understand that it is the current statutory position. Therefore, the effects of the Bill on the status quo are not entirely clear to those in the magistrates' community.
To achieve the intention of the amendment it would need to be drafted differently. As drafted the amendment would fail in its aim because removing the words "sitting or other" from the clause will not have the effect of removing, as the noble Baroness said, court sittings from the class of occasions at which a Bench chairman may preside. She is right about that. According to Stone's Justices' Manual, the term "meeting of justices" includes a judicial sitting.
The noble Baroness is right to say that the phrasing has been carried through from a number of Bills. We are maintaining the status quo, which provides clarity because it is a term of art that has become familiar to all who use it. It is clear that we are trying to continue the position where the chairman of the Bench sits and presides. I accept that the means of expression has been in place for a number of years, but that is the point; it is an easily recognisable term with which all are familiar. I hope that on that basis the noble Baroness will accept that it is not necessary to amend it.
moved Amendment No. 46:
After Clause 15, insert the following new clause—
(1) The justices for each local justice area shall establish a bench training and development committee to monitor the training and appraisal of lay justices.
(2) The bench training and development committee may make recommendations to the Lord Chancellor to which he shall have regard in carrying out his duties under the provisions of section 11(6)."
The amendment is supported by the Magistrates' Association. It seeks to impose a commitment to provide adequate training for lay magistrates and an ongoing commitment to ensuring that the highest possible standards are upheld. The amendment would enable rules to be made in respect of Bench training and development committees and for the magistrates' training initiative, which includes mentoring and appraisal schemes, to be placed on a statutory basis.
This will meet the Magistrates' Association's requirements and avoids giving the Lord Chancellor any extra powers, but it gives powers to the Magistrates' Association, which would be subject to a judicially reviewable process. The amendment seems to me common sense. I beg to move.
I support what has been said in principle. I have already declared an interest. But the point raised by the amendment is apposite. The training and appraisal of lay justices is an important part of what they can achieve. Without it they are much the poorer, and so is society. Establishing Bench training and development committees is extremely important because there has to be some way of insisting that the training and appraisal of lay magistrates reaches a proper proportion.
But training and appraisal should not be seen as something that can be finalised; it must be reconsidered repeatedly in the light of experience. Therefore I am not sure that the phrasing of the new clause is right. I would like to hear from the Minister that she agrees with its principle.
I support the amendment and I hope that the Minister will look on it with sympathy. It cannot be said often enough that the training of magistrates is of critical importance; after all, they are all amateurs. In the 20 or more years during which I was a magistrate, the demands made in training went up by leaps and bounds. We live in a very technical and litigious world, and it is essential for magistrates to keep up with all that is new. I am sure I do not need to remind the Committee that lay magistrates do so under their own volition in the evenings and at weekends—in their spare time, in other words. In addition to their commitment to the Bench, they are committed to this additional workload. It should not be a matter of hit-and-miss; it should be enshrined by statute so that there is unanimity throughout the justice system.
I express my support for the amendment. It may come as a surprise that my wife has been a lay justice for 15 years. Training is important in encouraging potential lay justices and helping new lay justices to perform their functions professionally and correctly. There is no doubt not only as to the good will of lay justices in giving up their time to this important function, as my noble friend Lord Tenby said. They also want to do the job well.
Changes in sentencing, particularly in the light of the Criminal Justice Bill, make the training and appraisal of lay justices even more important.
We also support the amendment. Its purpose appears to be not so much training as the monitoring of training, which will no doubt be carried out by the Lord Chancellor's Department. It is important to write in the Bill the possibility that justices through training and development committees may have a say in the Lord Chancellor's disciplinary powers exercised under Clause 11(6). The new clause appears to be an excellent suggestion.
I support the amendment. Training and appraisal are fundamental requirements for today's much scrutinised and much reported court procedures. It is shrewd to propose a statutory basis for them. My guess is that the historically recent introduction of training, appraisal and mentoring took some getting used to by existing magistrates. Some established magistrates were wary of the initiatives when they were proposed not so long ago.
What are the Government's proposals to promote and enhance the existing training and appraisal systems? Perhaps more should be done to persuade the existing 29,000 magistrates of the need for more training and appraisal. I should also declare that my wife is a lay justice.
We are sympathetic to the amendment, although not to the precise terms in which it is framed. The Magistrates' Association has put its views to us on this and related matters.
The amendment as drafted does not fully reflect the policies we have developed, partly in response to concerns raised with us by the Magistrates' Association. I am grateful for this opportunity to set out our thinking and to outline our proposals for government amendments.
We seek to address several related concerns. The concern about the lack of statutory backing for Bench training and development committees was hinted at by the noble Viscount, Lord Tenby, and other noble Lords. Given the importance of these activities, there is also concern over whether the Bench training and development committees will be able to achieve all that they and we would like them to.
Those activities include, as many Members of the Committee know, managing the Bench appraisal and mentor scheme, identifying training needs, referring those magistrates deemed not to have demonstrated the required level of competence to advisory committees, and responsibility in relation to magistrates qualified to preside in court. At present, only that last activity appears in primary legislation.
There is concern—a matter highlighted by the noble Lord, Lord Thomas of Gresford—about the grounds on which magistrates may be removed from office. The current Act gives the Lord Chancellor a broad power to remove magistrates by instrument and the grounds are not specified. The Bill sets out certain grounds for removal that sit better with today's human rights considerations. However, the concern is that setting out specific grounds for removal can render arguable grounds which are not expressly mentioned; for instance, the ground of persistent failure to attain the necessary competence. That is touched on by the second part of the amendment. Currently, there is a set procedure whereby magistrates can be removed from office on that ground. It involves referral by Bench training and developmental committees.
Additionally, there is a related concern that the Bill should contain express provision for general magistrates' courts training. A number of noble Lords have highlighted that issue. I do not think that the amendment bears upon that.
We have accepted all those concerns and plan to bring forward amendments at Report to cover them. Their exact form is still under consideration, but we are contemplating a power for the Lord Chancellor to require lay magistrates to undertake training and to make arrangements for that training, and probably other developmental activities, such as appraisal schemes. The details need to be explored further. However, we expect that the provision will include or go alongside a power to make rules regarding the establishment of magistrates' committees for the purpose of carrying out, among other things, functions relating to training and development. That would cover the Bench training development committees. Having outlined our intention in that way, I hope that the noble Baroness will be content.
I thank the Minister for giving way. At the present time there is no statutory provision. It is widely recognised that there must be some form of Bench training and development. I accept what the Minister says—of course without demur—that this or a similar provision should be included in the Bill. However, that will not be achieved until about June or July—by which time the Bill will have gone to another place and been returned to this House. What is the position in the interim?
We have undertaken a series of training schemes where magistrates were invited to participate. Noble Lords will know that whenever there is a new piece of legislation—for instance, the Human Rights Act or so on—a wholesale programme of training is offered to magistrates across the country. It will be made much easier under the unified system. The Committee will know that the Judicial Studies Board will in future have a stronger role in overseeing magistrates' training, which will help to achieve greater consistency across the jurisdiction. Noble Lords are aware that the Judicial Studies Board currently undertakes all the training for district judges, circuit judges and the higher judiciary. It will enable us to have consistency throughout the system, which we are confident will benefit everyone.
I thank noble Lords for taking part in the debate. It has been interesting to note that nearly everyone who has spoken has either been a justice of the peace or has a spouse who is one. It is heartening that all those people involved are anxious that this matter should be put on a statutory basis.
I am delighted that the Minister has accepted the thrust of the amendment. Perhaps I may say that when I was appointed in 1968 I turned up at court and started sitting that very day. There was never any thought of training for many a year. I came to value training very much. Magistrates were always keen to take part in any training and there were few recalcitrant ones. Magistrates welcome it.
We shall look at the drafting of our amendment. We understand that the Minister has said that she will bring forward amendments on Report, but we will look at ours to see whether we can bring forward an amendment on Report. I beg leave to withdraw the amendment.
In moving Amendment No. 47A, I shall speak also to Amendments Nos. 48, 50B and 55. The central theme to this group, and to those following on closely behind, is the position of the justices' clerk under the new structure outlined in the Bill.
The relationship between the magistrates and their clerk is vital to the satisfactory operation of a magistrates' court. It is based on a mutual trust that builds up over a period of time. In addition, it ensures independence of advice because the justices' clerk cannot be removed against the wishes of the magistrates concerned except by the Lord Chancellor. That is an important constitutional issue.
These amendments ask the Government to clarify the role of the justices' clerk under the new centralised system of employment. My amendments would put on the face of the Bill the guarantees that we believe are necessary. Clause 22(1) states:
"A justices' clerk is a person who is appointed . . . and designated by the Lord Chancellor as a justices' clerk", as a result of the Lord Chancellor's responsibility under Section 2(1). There is no mention of what the justices' clerk is to do or from where he or she is to operate. One would expect the Explanatory Notes to provide some clarification on the matter, but they do not. In theory, therefore—although I would hope not in practice—the Lord Chancellor could appoint justices' clerks without providing any link to a local justice area or areas. That would be unacceptable.
Clause 22 makes the justices' clerk a grade of employee rather than a statutory post holder. As such, the justices' clerk can be moved at any time and anywhere in the country.
In Clause 10(2) magistrates are assigned to local justice areas. The Justices' Clerks' Society in its helpful briefing points out that logic dictates that its clerks should also be so assigned. It was in response to the points made by the Justices' Clerks' Society that at the end of last week I withdrew one or two of my amendments which did not meet with its favour. I listened carefully to what the noble Lord, Lord Graham of Edmonton, said last week about being keen on amendments that people are keen on outside the House. I can tell him that I have tried properly to reflect the views of the Justices' Clerks' Society in these matters.
I have one rogue amendment that I shall turn to shortly. I tabled Amendment No. 48 as a rough and ready amendment simply to make it clear that we believe that the justices' clerk should be appointed to one or more local justice areas. I refined that amendment after hearing from the Justices' Clerks' Society. As a result of its views I tabled Amendments Nos. 47A and 50B. Amendment No. 47A is a paving amendment for Amendment No. 50B, which places a duty on the Lord Chancellor to assign each justices' clerk to one or more local justice area.
I have been reasonable. I have left the Lord Chancellor the required flexibility to be able to move the justices' clerk where necessary to a new area. But of course we would hope and expect that the clerk would be left in place long enough to be able to develop that valuable working relationship with magistrates that has been the hallmark of the success of our magistrates' courts.
My noble friend Lord Renton has just informed me that Amendment No. 55 does not find favour with him. I can assure him that Amendment No. 55 was tabled merely as a tool to stimulate debate and I have absolutely no intention of pressing it. I am pleased to see that he is relieved about that.
Amendment No. 55 simply says that a justices' clerk should be left in place for a minimum of two years. We are trying to tease out how long the Government anticipate that magistrates should have the assistance of a particular clerk. We are interested in the stability of the system.
I hope that the noble Baroness will clarify Amendment No. 55. As drafted, it is not possible for anybody to accept it. The noble Baroness has endorsed that view. It is incumbent on her to express her view. For example, a justices' clerk may not agree with some of the magistrates on personal or other grounds and may want to move to another area. Should not he or she be entitled to do that? I do not think that there should be an arbitrary requirement for a justices' clerk to be present throughout.
As ever, the noble Lord, Lord Clinton-Davis, has read my mind. He has intervened and put words into my mouth that I was about to utter. He has therefore saved me and the Committee a little time. The reason why I tabled Amendment No. 55 was to see whether there should be an arbitrary period of, say, two years. The Justices' Clerks Society says "no" for the reasons mentioned by the noble Lord, Lord Clinton-Davis. I agree with the noble Lord and endorse what he said.
However, I would argue that I have met the deficiencies in Amendment No. 55 by Amendment No. 50B in which I leave the Lord Chancellor the flexibility of being able to reassign a justices' clerk if there are personal or professional reasons why it would be inappropriate for the clerk to stay in one position for too long.
The underlying theme is that if one does not have some security of tenure as a justices' clerk in a magistrates' court, one will rob that court of the vital link of building up trust with the judicial adviser. I remind the Committee that the clerks in higher courts are in a very different position. They do not give legal advice to those sitting on the Bench. The clerk to a circuit judge and a High Court judge has a very different role.
The Justices' Clerks Society points out that in Clause 23 the Government have made the justices' clerk a grade of employee rather than a statutory post-holder. The society is concerned that there should not be a short arbitrary period, but says that it is vital to have a geographical link and that there must be consultation about removal. I hope that my amendment meets the society's point that there could already be a problem with the public's perception of the Bill. The clerk may appear to become a civil servant advising magistrates on the law. The society stresses that every step should be taken to reassure the public of the independence of such advice. Geographical links would obviously assist in that process.
I understand that the Government may consider placing the issues of geographical links and consultation procedure about appointments in secondary rather than primary legislation. The danger is that that would downgrade the importance of those links. On an interpretation of the law, it would be presumed that those areas had been changed for a reason and that they were less important than they are. Those issues remain as important as ever. Amendment No. 50B properly and clearly reflects a commitment that should be on the face of the Bill. I beg to move.
I have not spoken on the Bill before, and perhaps noble Lords may think that I should not do so now. My experience of lay justices working with professional clerks was in Scotland when I was an honorary sheriff, but I think the experience is not dissimilar.
I hope that the noble Baroness appreciates how important lay justices and their relationships with their clerks are to bridge-building between local communities and the law. Local people are very interested in what happens in a magistrates' court and pay great attention to how local justice is administered. If they get the impression that the clerk who is so important to the operation of the magistrates' court has come from on high, possibly from far away, and is likely to be removed to another stratosphere at any moment, it will shake confidence in the magistrates' court as a local operator of the law. In the world in which I operated, the local roots of the clerk were every bit as important as the local roots of the lay magistrates. I hope that the noble Baroness will remember that.
I accept the general thrust of the amendments. Is it the case that justices of the peace will no longer be consulted on the appointment or removal of justices' clerks? If so, are we to assume that the special relationship between a justices' clerk and the Bench is being downgraded at the very least? It is arguable that if justices' clerks become civil servants they will be subject to the direction of central government. That points towards the curtailment of the independence that courts will want to see maintained.
I want to re-emphasise what has already been said far better and in far greater detail than I shall be able to do. The subtle relationship between the justices' clerks and the Bench is of immense importance. Each must have confidence in the other, so I urge the Minister to listen carefully to what is being said.
It may come as a surprise to some, but it is not all that many years ago when justices' clerks did not have to be qualified. Although they had no legal qualifications, some of them were extremely good and made up for their lack of qualifications and detailed legal knowledge by having a good relationship with their justices, which worked wonders. I am not sure what the right formula is, but something should be worked out to underline the importance of the close relationship between the Bench and the justices' clerk. I should not be happy with a system that allowed the Lord Chancellor, without consultation with the Bench, to move a justices' clerk to wherever it was thought administratively convenient. The close relationship pays dividends and we should try to maintain it if possible.
I have no interest to declare and I am left feeling rather naked in such debates, but I should like the Minister to reflect on the kind and extremely well-deserved encomia that she has paid to the justices' clerks and then to ask herself whether it is not significant that the magistrates themselves and the Justices' Clerks Society support the thrust of the amendment? If the magistrates who perform what we all agree to be such an important function in our judicial system want a security of tenure, as referred to by my noble friend Lady Anelay, that should weigh very heavily with the Government.
There is a very good reason for that opinion. We all agree on the importance of the link with the locality of those who administer justice. It is important for local confidence that that link should be maintained for the magistracy. As my noble friend Lady Carnegy and the noble Lord, Lord Jones, said, it is just as important that the advice coming to the magistrates should be informed by local considerations.
The Minister will doubtless say that a guarantee of independence is written into the clause. One is always glad to read something like that, but in practice it is unenforceable in the circumstances relevant to our discussion. For example, if a magistrates' clerk takes a locally justifiable view about a particular topic—length of time on bail, or whatever—that may conflict with the policy of the Lord Chancellor's Department, he can be removed by the department and posted elsewhere, where he will be less of a nuisance, without any recourse whatsoever. It would be in vain for him to say, "My independence has been infringed".
So I hope that the Minister, as she always does, will think carefully about what has been said in support of the amendments—and support them in turn.
I am untutored, compared with other speakers, on the practice. I mentioned previously that my wife was a magistrate at Haringey and at Highgate. During those 30 years, I had the opportunity to meet many of the clerks and their staff. The situation is not dissimilar in many other walks of life. Earlier, I referred to the fact that my great experience outside this House was in the co-operative movement. A man may take a senior position and everyone knows that he will not stay there much longer because he has quality. Everyone knows that, whether or not they want to keep him, other people will be knocking at the door. I am not talking about poaching or offers, but, especially if people are young—in their 30s, in my experience—you know that they will move on up higher, and you say, "That's great".
Recognising that fact, my noble friend and her colleagues have the difficult and delicate job of trying to satisfy the need for continuity in an area. Many noble Lords, like me, were Members of Parliament. We knew well our patch and the value of the people with whom we worked—and they knew that we knew that. That is a great thing, but when it comes to understanding the community served by the court, although there may be distress when someone who is eminently loved and respected moves on, one knows how quickly, given the right choice of appointment, someone else can immediately begin to make an impression.
I have no advice for my noble friend or her colleagues, who must deal with the matter, except to say that the trick is to satisfy everyone that the way that the law has been rolled out is, as far as possible, equitable and to the community's satisfaction. I take kindly what was said from the Opposition Front Bench about the power of the advocacy that they have received from outside. I hope that my noble friend will be able to respond to it. Consultations take place with various bodies and I cannot believe that my noble friend and her colleagues would, in the face of strong advice all round, persist in doing something that would patently be resented by those on whose behalf it was promulgated.
I was an advocate in the local courts for a long time. During that period, the role of the justices' clerk was all-important. There was a rapport between the advocates and the justices' clerks, both formally and informally when the court was not sitting. It is important that that should continue. I grew a little alarmed at what the noble Lord, Lord Waddington, had to say. Frankly, I do not think that he is right.
As far as I can see, there is no requirement envisaged for a justices' clerk to be qualified. He or she can be qualified, but it is not imperative. Clause 22(2) sets out the qualifications that must be applied. Although being recognised as a lawyer—a barrister or a solicitor—is important, it is not the sole criterion. Having said that, I support the purpose of the amendment.
Perhaps I may first reassure the noble Baroness, Lady Carnegy, the noble Viscount, Lord Tenby, the noble and learned Lord, Lord Mayhew, and others who spoke about the importance of the relationship between the magistrates and the magistrates' court clerks. I absolutely accept and endorse that it is crucial that that relationship be built on trust and confidence. Magistrates' court clerks may be in place not just for months but, as many Members of the Committee who have practised in the courts will know, many years. Sometimes because of other moves in their personal lives or career development, their tenure is shorter. We absolutely understand the nature of that relationship and its importance.
Let me assure the Committee that we fully expect that justices' clerks will continue to be assigned to local areas. However, as my noble friend Lord Bassam said in our debate on Clause 8, in future that will happen outside the statute, which will allow for more flexibility in their deployment. It will also allow justices' clerks the opportunity to work in the headquarters of the new agency or the Lord Chancellor's Department more generally, if appropriate.
I stress again that there is no intention that the Lord Chancellor should move justices' clerks from one area to another at will. With his usual acuity, my noble friend Lord Graham put his finger on a problem that sometimes occurs: there are talented justices' clerks who for their own career development want to move on. I am therefore grateful for what the noble Baroness said about Amendment No. 55, which would be unrealistically restrictive. As she knows, there is no such time limit at present to the appointment of justices' clerks to petty sessions. Sometimes there are perfectly good reasons for them not to continue.
However, there are difficult issues to consider. Although there will be no statutory link between justices' clerks and local justice areas, we fully envisage that clerks will continue to serve those local areas. I can reassure the noble Lord, Lord Jones, that we will continue to consult magistrates before a justices' clerk is appointed or removed. Magistrates, via their Bench chairmen, will continue to be consulted about the assignment or replacement of a justices' clerk to their area, although, as I said, that will happen outside the statute.
As regards deployment, we have made no decisions yet, but we will discuss how it will work with the Justices' Clerks Society. I can certainly assure Members of the Committee that justices' clerks will not be moved without their being consulted. As a matter of routine deployment, justices' clerks, in normal circumstances, will be deployed locally, but transfer under the usual Civil Service terms to another area for agreed personal and/or personal needs cannot be ruled out. We intend to deal with this issue sensitively and flexibly, taking into account local needs.
One of the benefits we hope to gain from a unified system is a greater opportunity to deploy the right people at the right moment. Members of the Committee will know that sometimes there are difficulties which can be met by deploying people elsewhere, with the agreement of various persons, to meet those needs. We believe that that will be a very helpful addition to flexibility and in making sure that the system works more easily than it does at the moment. I invite the noble Baroness to withdraw her amendment.
As regards other matters, we are keeping these issues under review because we have to see how the jigsaw fits together. I certainly understand the concerns that have been expressed. Members of the Committee will know that the Justices of the Peace Act 1949 and the compensation regulations of 1978, the "Crombie" regulations, will continue in force as we intend to include a saving provision in the Bill to protect the regulations. We are sensitive to what Members of the Committee have said. We fully understand the need to ensure that the link with the local area does remain in the main.
I am intrigued by the Minister's final remarks that she expects the local areas in the main to remain. I shall look at that carefully in Hansard. I am very grateful to the noble Baroness for the care she has taken in answering the points made by myself and other Members of the Committee. I am grateful for the support from around the Chamber. I was intrigued by the very careful and helpful language used by Members of the Committee. The noble Lord, Lord Jones, spoke about the special relationship which must not be downgraded. The noble Viscount, Lord Tenby, spoke about the subtle relationship where each has to have confidence in the other. There is two-way traffic in confidence which is so vital.
The noble Lord, Lord Clinton-Davis, referred to the rapport built up between local magistrates and their justices' clerk. It is that combination of tremendous confidence, rapport and trust which needs to appear clearly on the face of the Bill. The noble Lord, Lord Graham of Edmonton, was absolutely right when he said that the trick is that the law is rolled out equitably and to the satisfaction of the community. That is a tremendously difficult thing for any government to do in each and every Bill. It is something we should all strive to achieve.
I am grateful to the noble Baroness for giving way. While it is important to obtain rapport between magistrates and clerks, I was also referring to that between advocates and the clerk.
The noble Lord is absolutely right. Another noble Lord commented on the importance of local knowledge and building up rapport between various people. I believe the description used by the Government is "court users". I do not say that with any cynicism because all of us at some time in our lives use a court and need to be properly received there.
I listened carefully to what the noble Baroness said. She said that the Government would expect that justices would still be assigned. They want flexibility for assigning justices' clerks. I want more than an expectation; I want clarity on the face of the Bill. I want that while still keeping the flexibility that the Government wish to maintain. Amendment No. 47A is a paving amendment for Amendment No. 50B. That amendment meets the requirement that there is locality, continuity and flexibility of employment. I now wish to test the opinion of the Committee on Amendment No. 47A.
I return to the theme of the position of the justices' clerk in the magistrates' court, but from a different angle. The Minister has already referred to it, so I shall be briefer than I otherwise would be. I shall speak also to Amendments Nos. 50C and 51, which are in the same group.
Clause 22 gives total responsibility for the appointment of justices' clerks to the Lord Chancellor. That does nothing to make local justices feel that they have any ownership of their local administration. Amendment No. 50A seeks to correct that by requiring local agreement to such appointments by,
"the justices assigned to the local justice area or areas to which the Lord Chancellor intends to assign the justices' clerk".
In speaking to the previous amendment, the Minister said that the Government expect that there will still be a system by which clerks are assigned to local justices. I am disappointed that the Government do not wish to clarify that in the Bill. The Committee also decided that it does not wish that to happen at this stage, so we shall go ahead with the Bill as it is currently drafted. I am trying to clarify in the Bill that, in making an appointment, the Lord Chancellor should have a duty to take into account the views of the local justices.
Amendment No. 50A would require local agreement, putting a strong duty on the Lord Chancellor. The Justices' Clerks' Society was content with either this amendment or my other one. But I understand that the Minister might respond by asking how on earth one would obtain the agreement of up to 200 justices. One justice could feel plain awkward on the day and say "no". One would, therefore, expect flexibility to be built into the system. I have done that in Amendment No. 50C, which is reasonable to the point of being almost too weak. It simply requires the Lord Chancellor to consult the magistrates of the local justice area before he assigns a justices' clerk there. That is essential, good practice. I hope that the Minister will be able to accept Amendment No. 50C.
Amendment No. 51 is in the name of my noble friend Lord Dixon-Smith, who is unavoidably absent today and asked me to speak to it. It complements Amendments Nos. 50A and 50C, continuing the theme of local ownership by requiring that the appointment of an assistant to a justices' clerk should be made only if it is first agreed by the justices' clerk, whose own appointment cannot be made unless it has already been agreed by the local justices. I beg to move.
We are entirely happy to support Amendment No. 50C. As the noble Baroness, Lady Anelay, said, Amendment No. 50A is rather strong. The question of the kind of agreement required and possible difficulties in securing agreement would make it difficult to justify insisting on agreement by local justices. Nevertheless, it is obviously correct that they be consulted. I expect the Minister to respond that in practice they will be consulted. If so, it is, in principle, desirable that that be an obligation in the Bill.
I have a mild objection to Amendment No. 51. As the noble Lord, Lord Dixon-Smith, is not here, I shall be very mild indeed, because the amendment was spoken to on his behalf. It is unreasonable that a justices' clerk should have a veto on the appointment of anyone as his assistant. It would be either his mate or nobody. That will not do at all.
I understand the import of why the noble Baroness, Lady Anelay, moved the amendment. However, she put her finger on the inherent difficulty that would arise in consulting every magistrate. Mergers of the petty sessions areas are being conducted now by the Central Council of Magistrates' Courts Committees. That could mean that when the Bill is law, local areas become significantly larger. The noble Baroness highlighted some real difficulties; for example, what happens if one magistrate, on a frolic of his or her own, decides not to agree? I am pleased that the noble Baroness sees the flaw in her argument.
The phrasing of the amendments will require that the Lord Chancellor obtains agreement. Amendment No. 50C requires the Lord Chancellor to consult magistrates assigned to a local justice area before assigning a clerk to that area. As a number of noble Lords have previously said, that would present some difficulty.
Clause 10(2) allows magistrates to be assigned to more than one local justice area. Amendments Nos. 50A and 50C propose gaining the agreement of or consulting a significant number of magistrates before a clerk could be appointed or assigned to an area. During the debate on Clause 8 my noble friend Lord Bassam gave noble Lords an assurance that in practice magistrates will continue to be consulted about the assignment or replacement of a justices' clerk for their area.
The Government made that clear in their statement on unified administration placed in the Library on 16th January. It mirrors the position in the current court service in which there is close consultation with the judiciary on certain staffing issues. I expect such consultation to take place with the Bench chairmen as representatives of the magistrates for a local justice area, rather than with each individual magistrate for that area.
During the debate on Clause 8, the noble Lord, Lord Waddington, pointed out that our statement that consultation with local magistrates on the assignment of justices' clerks would continue, appeared to be at odds with paragraph (75) of the Explanatory Notes.
My noble friend Lord Bassam said that he would be happy to withdraw that point, given the confusion. My response is that we have listened to the persuasive arguments put forward both by noble Lords, the Justices' Clerks Society and the Magistrates' Association, in support of retaining the close link between Benches of justices and their clerks. While we remain opposed to placing consultation with the local magistracy on a statutory footing, we are happy to give assurances that such consultation will take place administratively. We shall take steps to clarify that point in the Explanatory Notes.
I turn to a point made by the noble Lord, Lord Thomas of Gresford. He asked whether justices' clerks would be judicial officers who will, at all times, maintain quasi-judicial independence. My noble friend Lord Bassam reassured the noble Lord that clerks will retain their statutory independence. Clerks are not currently judicial officers—nothing in the Bill alters that. I appreciate concerns about the possibility of frequent changes of justices' clerks around the country. However, I am sure that there will be no great loss of continuity.
Amendment No. 51, tabled in the name of the noble Lord, Lord Dixon-Smith, and spoken to today by the noble Baroness, Lady Anelay, would require the Lord Chancellor to obtain the agreement of a justices' clerk before designating a member of staff of the new courts agency as an assistant to that clerk. Imposing a statutory requirement on the Lord Chancellor to obtain the consent of a justices' clerk before designating a member of staff to be an assistant to that clerk would be unnecessary. No such requirement exists in relation to magistrates' courts committees, who currently appoint assistants. However, justices' clerks, as local heads of legal services, are currently involved in the appointments process. We envisage that this will continue to be the practice.
I understand the anxiety that many noble Lords have expressed to have absolutely every minute detail placed on the face of the statute. I hope that noble Lords consider that over-prescriptive and cumbersome. Much in the system works well through good sense and justices' committees with justices' clerks and others working administratively on their behalf; namely, working together in partnership in order that the courts work well. Our amendments are predicated on good sense and good working relations continuing. Therefore, I hope that the noble Baroness, Lady Anelay, will withdraw these amendments.
However, I am a little disappointed at the approach taken, particularly in respect of justices' clerks, by virtue of the last amendment—not least because I have made clear that the Government are listening, will consult and will continue to look at this matter. Notwithstanding the decision of the Committee in respect of the last issue, I repeat that my openness will continue.
I am grateful for the Minister's response. We do not question her openness at all. The difficulty is that we have just one opportunity to obtain clarity on the face of the Bill, which, at the moment, there is not. It is no reflection on any comments made by the Minister that we press these amendments. As Members of the Opposition, it is right for us to respond to views put from outside the Committee and to take the opportunity that discussing the Bill gives to press such matters.
I am grateful to the noble Lord, Lord Goodhart, for his support of Amendment No. 50C. I note the objection raised by the noble Lord, Lord Borrie, to Amendment No. 51. I accept his point and that of the Minister. I was intrigued at the Minister's comment that I had noticed the problem with my own amendment. Indeed, I noticed the difficulty with Amendment No. 50A. It would be unwise to press for agreement from all local justices to be placed on the face of the Bill. However, I do not have such difficulty in attempting to persuade the Government with regard to Amendment No. 50C.
The Minister said that in practice magistrates will continue to be consulted. If that were placed on the face of the Bill, it would reflect what is currently in statute. Therefore, it is not a case of adding minute detail.
I refer briefly to an e-mail that I received from Mr Sid Brighton of the Justices' Clerks Society on 31st January. He points out that if the current statute is to be reflected, the views of all justices assigned to the local justice area should be sought. Their objection to the consultation to which the Minister refers—the consultation that the Government intend with the Bench chairmen or deputy chairmen—would be too restrictive because there would be a question as to where the mandate was obtained.
I accept that the Minister is listening. However, I take the opportunity provided to register my discontent with the lack of clarity on the face of the Bill. I therefore want to test the opinion of the House. I beg to move.
I apologise. I was so keen to press the right amendment that I managed to move the wrong amendment. I should make it clear to the Committee—but first to myself—that I accept that Amendment No. 50A is not a good amendment and should not be pressed. I apologise to the Deputy Chairman of Committees. I give notice that I shall press Amendment No. 50C. Before I bring the House down around me, I beg leave to withdraw Amendment No. 50A.
moved Amendment No. 52:
Page 10, line 30, at end insert—
"( ) Before the Lord Chancellor takes steps to remove a justices' clerk from office he shall—
(a) consult the justices for the relevant local justice area;
(b) consult the Court Administration Council for the area which includes the relevant local justice area; and
(c) consider any recommendations made to him by the justices, the Court Administration Council or by the justices' clerk who is under notice of removal."
In its response to the draft Bill, the Justices' Clerks' Society states that it is important to ensure that safeguards are in place for the process of the removal from office of a justices' clerk. We have discussed the process by which justices' clerks should be appointed. We now turn now to the other end of the process and discuss how they should be removed.
My amendment probes the good practice that should be followed if the Lord Chancellor determines to remove a justices' clerk. Whom will he consult? Should it be the justices, or the court administration council? In consulting, what notice would he take of the views expressed? What does he consider to be his duty in accepting or rejecting those views, and would he make that consideration public? What hearing would be given to the justices' clerk who was under threat of removal?
The noble Baroness, Lady Scotland, stated at Second Reading that the decision-making on removal would effectively be taken by,
"the local chief officer, who makes decisions within the court administrative council".—[Official Report, 9/12/02; col. 83.]
So what will happen if the local justices and members of the CAC disagree with the local chief officer? Who has the final say?
My amendment, which noble Lords opposite may be relieved to hear is a probing amendment, after their recent exercise—
The Minister says it is a shame. Perhaps she tempts me to make the amendment more probing. We shall see. The amendment provides good practice on the face of the Bill. It would add the provision that the Lord Chancellor should consult,
"the justices for the relevant local justice area . . . consult the Court Administration Council . . . and . . . consider any recommendations made to him by the justices, the Court Administration Council or by the justices' clerk who is under notice of removal".
I beg to move.
Clauses 23 and 24 deal with the functions of the justices' clerk, and in certain respects his independence. About half an hour ago, my noble friend the Minister mentioned that justices of the peace can be dismissed only on certain grounds, including "incapacity or misbehaviour"—a phrase with which we are familiar in relation to professional judges and which appears in any case elsewhere in the Bill in relation to those professional judges described as district judges.
Under clauses that we are about to discuss, the justices' clerk will in many cases have to substitute for justices and in others will have judicial or judicial-type functions. Why, I wonder, should the justices' clerk be more easily removable than under the provision which is fresh for lay justices and more familiar from the point of view of certain professional judges; namely, circuit judges, and, as has been the case for many years, district judges?
In other words, I am more concerned about the independence of the justices' clerk being truly underlined. I am sure that I can appeal to the noble and learned Lord, Lord Mayhew, in the light of his earlier remarks. I am sure that many Members of the Committee must be concerned that the justices' clerk should be able to give legal advice according to the functions set out in the next clause, freely, without worrying whether it is in accordance with some current statement by the Lord Chancellor's Department; and that that independence should be subscribed to by having a formal procedure that he can be dismissed only on certain grounds.
I am more interested in getting answers to why the removal provisions are not in the Bill, and in how they could be included to help the points that I have just mentioned, than I am in the possibilities set out rather ponderously in the amendment of a complicated set of rules for consultation before a justices' clerk can be removed.
Having sat patiently through the earlier debates but not taking part, I was struck by the fact that the Minister herself stressed the importance of the independence of the justices' clerk and the high regard in which she holds the magistracy. Surely, as the noble Lord, Lord Borrie, has said, if that independence is to be clear, there must be some clear set of principles on which the clerk can be removed. I hope that the Minister will accept at least the spirit behind the amendment.
My Lords, the noble Lord, Lord Borrie, does not look to me in vain. I support what he says, for the reasons that he gave. The Government's difficulty arises from the fact that they are turning the justices' clerks into civil servants and members of the Lord Chancellor's Department. But that does not render impossible the achievement of the change advised by the noble Lord, Lord Borrie.
I thank all Members of the Committee who have raised this issue. Of course I understand the reasons why these concerns have been expressed.
As I said in relation to other amendments, we expect that consultation with the local magistracy via the Bench chairman will continue over the assignment or replacement of justices' clerks. I suggest, however, that it would be inappropriate to consult court administration councils on such matters. While court administration councils may have a strategic role in staffing matters, they will not be the employer body; nor will they represent the interests of local magistrates. There would, of course, be nothing to prevent the local court administration council, magistrates or the justices' clerks themselves from making representations to the new court agency in the rare event that a clerk is to be removed from the post.
In answer to my noble friend Lord Borrie on the removal of justices, all that is new in the Bill is listing the grounds for removal. Under the Justices of the Peace Act, the power to remove is unfettered, save by the usual public law principle.
In relation to justices' clerks, they, as any other employee, or indeed civil servant, have a right to be protected from unfair dismissal, so all of those rules will continue.
I should say en passant that Members of the Committee have made a clear distinction between the way in which justices and other judges are removed and the fact that that is now coming together. One remembers that justices' clerks, important as they are, are not judicial officers—although they have huge importance and independence.
The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Hunt, both expressed concerns about justices' clerks becoming civil servants and about the possible reduction in their independent status. Justices' clerks are currently employed by specific magistrates' courts committees. Clause 24(1) of the Bill states that justices' clerks, while exercising advisory or judicial functions, will not be subject to the direction of the Lord Chancellor or anyone else—I stress "or anyone else". That reflects the current provision, which similarly guarantees independence from the justices' chief executives. So justices' clerks will have exactly the same statutory guarantee of independence in relation to their advisory and judicial functions as they currently do. We do not intend to change that position.
I understand that this is a probing amendment. I hope that I have been able to give the noble Baroness satisfactory answers and she will feel able to withdraw the amendment at this stage and, it is to be hoped, not bring it back.
I thank the Minister for her helpful response, although I cannot satisfy her entirely on not bringing back an amendment at a later stage. I am grateful to the Members of the Committee who took part in the debate.
I need to reflect carefully on the wording of the amendment. I am grateful for the Minister's comments with regard to the expectation that consultation would continue with justices. I need to see how that would be expressed in the Bill, if at all.
I take the Minister's point that the CAC may not be the proper body to be included in the amendment, if the Bill goes forward in its current form and there are no further changes in the way in which local management takes place. I accept that, as it is currently constituted, the CAC may not be the right body to be included in the amendment. I included it to get some idea from the Government about the relationship between the CAC and the justices' clerks. I am grateful to the Minister for saying clearly that the CAC is not the employer and does not represent the interests of magistrates.
I agree with the noble Lord, Lord Borrie, that more important matters underlie the amendment. A person should not be removed from his position as justices' clerk unless for a good career reason or because he is not performing to the best of his ability. The reason should be justifiable and not a matter of personal prejudice—not that one would ever accuse the current Lord Chancellor of doing that. We are talking not about a personality but about what powers might be written into the Bill.
After the comments made by the noble Lord, Lord Borrie, I shall consider the amendment carefully. I do not think that it should be brought back exactly as it is in its current form or simply by chopping out the CAC reference. I need to consider more closely the mechanism for removal. In those circumstances, I beg leave to withdraw the amendment.
With the leave of the Committee, I shall also speak to Amendments Nos. 53A, 53B and 54.
I tabled these amendments to ask the Government to put on the record what role they see for the justices' clerk in the future, with regard not to his role in advising magistrates but to his day-to-day functions. Do the Government anticipate the further transfer of the functions of the lay magistracy to the justices' clerk?
"The powers of the justices' clerk in the Bill are a re-enactment of existing powers".—[Official Report, 9/12/02; col. 83.]
She is saying that I should not be unduly worried.
The Government may have no intention to transfer further activity from the magistrates to the justices' clerk. However, the drafting of subsection (1) is so open that it would allow rules to be made in the future for the further transfer of functions from magistrates to justices' clerks. Why do the Government want the drafting to be left so open, unless they want to keep their options open to transfer functions away from magistrates' courts?
I listened with care to the remarks of the noble and learned Lord, Lord Ackner, when he stated on Second Reading that Clause 23 was "objectionable in one respect". It is that one respect that I have picked up in this amendment. He said:
"Why cannot the Lord Chancellor define on the face of the Bill what functions currently done by JPs he wants to be done by clerks in the future? The provision, as it now stands, would allow for civil-servant-driven justice and is undesirable".—[Official Report, 9/12/02; col.63.]
I agree entirely with him.
Will the Minister respond to the point put so clearly by the noble and learned Lord, Lord Ackner? Will she also give an explanation of how much or how little of the current functions of the magistrate may be transferred overall?
Amendment No. 54 was tabled simply to probe what the Government have in mind for the work to be done in the new centralised system. In their quest for flexibility, do they intend to develop any new categories of assistant to do court work, who will not be subject to the same qualifications as justices' clerks and their assistants? We have just had a brief debate with regard to whether justices' clerks must be qualified. I listened with interest to the remarks made by other Members of the Committee. I am aware of the changes over the years with regard to the legal qualifications that justices' clerks must possess. I hope that in responding to the amendment, the Minister can clarify what qualifications justices' clerks are expected to have. I beg to move.
With the greatest respect, I see no point in Amendment No. 54. If the noble Baroness, Lady Anelay, wanted to discuss the purpose of Clause 23 in any shape or form, she could have done so by putting down a notice that she wanted to discuss this issue. I see no point in the amendment that she tabled and she did not seek to argue any point.
It may be convenient for the Committee if I respond now, although I did attempt to argue the point. With Amendment No. 54, I am trying to find out what other persons the Government may want to do such highly qualified work. I am trying carefully not to table amendments to this clause that would lead either the magistrates or justices' clerks to assume that I was launching an assault on the role of the justices' clerk. As the noble Lord knows, the functions so far transferred to the justices from the justices' clerk, not without some controversy on occasion, are being properly carried out. Amendment No. 54 was tabled simply to get the Government to say what other people they were talking about.
I wish that I could agree with the noble Baroness, but I cannot. If she wanted to discuss any of the provisions of the clause, she could have done so, but to put down a meaningless amendment—a point which has been underlined by what she said—is purposeless.
The other amendments are also utterly worthless. The word "currently" should not be applied in statute in any form. Does the noble Baroness really mean to apply it? I cannot believe it. As for the other amendments, I do not know about the omission of the word "to" in lines 33 and 34. She may have a point, but I doubt it.
I arise in puzzlement. Surely a range of consultations take place before changes are made, not only in respect of functions and duties. I am struck by the point that my noble friend Lord Clinton-Davis raised about the introduction of the term "currently". I assume that "currently" means "at the moment" or "presently". If the functions and duties are constantly being considered and marginally changed, they are constantly and currently being updated.
I cannot for the life of me see the necessity for the amendment that would prove more of an impediment to flexibility and easy working than that which currently applies. I am all for caution and not proceeding too quickly, especially as regards the law. Thousands and thousands of people are far better qualified than I am in this matter. I do not refer to professionals but to lay people. They watch these matters like hawks. I cannot believe that the noble and learned Lord the Lord Chancellor and his officers and Ministers will undertake to do too much too quickly or too drastically. I invite the Minister to tackle the sense or, as I see it, the nonsense, of allowing the term "currently" to be spatchcocked into the Bill by the amendment we are discussing.
The noble Lord, Lord Clinton-Davis, took me to task in relation to my explanation of Amendment No. 54. However, I had not explained the amendments which refer to the word "to". I am simply puzzled with regard to what one does to a magistrate. That is simply a drafting point and no more. What does one do to a magistrate that one does not do before him?
"Rules made in accordance with section 144 of the Magistrates' Courts Act 1980 may (except to the extent that any enactment passed after this Act otherwise directs) make provision enabling things authorised to be done by, to or before a single justice of the peace to be done instead by, to or before a justices' clerk".
Clause 23(1), in slightly more simple language, basically redraws Section 45 but says the same thing. It sets out the functions of a justices' clerk and empowers the Lord Chancellor to make rules allowing a justices' clerk, or an assistant to a justices' clerk, to perform the functions of a single justice of the peace. The Lord Chancellor currently makes rules on the advice of, or after consultation with the Magistrates' Courts Rules Committee, but he will also now consult the Criminal Procedure Rule Committee and the Family Procedure Rule Committee before making such rules. That is the only change of substance to the provisions of Section 45 of the Justices of the Peace Act. I am in sympathy with the puzzlement of my noble friend Lord Clinton-Davis and that of my noble friend Lord Graham. The noble Baroness said that the amendment was a probing amendment. I respond in that vein.
Amendment No. 53, which seeks to amend subsection (1) of Clause 23, would limit those functions of a single justice of the peace which a justices' clerk is presently authorised to do to those that currently exist. I hope that the Committee will not object if I too wonder what period is covered by the term "currently". As has been said, that period would be forever changing. More to the point, I should stress that subsection (1) is not a new provision. I have outlined the precise nature of Section 45 of the Justices of the Peace Act 1997. As I said, Clause 23(1) effectively re-enacts that provision. I also refer to Section 49 of the Crime and Disorder Act 1998 which sets out certain powers which are exercisable by a single justice and provides that rules may permit them to be exercised by a justices' clerk. We do not think that it would be desirable if even the smallest change in the future had to be made by primary legislation, as would be the effect of this amendment, instead of by rules. I am sure that that is not what the noble Baroness intends. I should add that rules made under Clause 23 may be made only after consultation with the rule committees.
Amendments Nos. 53A and 53B would remove the word "to" in two places in Clause 23(1), so that instead of referring to things done "by, to or before" a justice or a justices' clerk, it would refer to things done "by or before" them. As I mentioned, Clause 23(1) effectively re-enacts the provision in Section 45 of the Justices of the Peace Act 1997. This provision was first made in the Justices of the Peace Act 1968, and the phrase "by, to or before" has been included ever since then and is well understood by all those who have sought to implement it.
It has been accepted for over 30 years that it is necessary for efficiency that justices' clerks should be able to undertake some of the functions of justices of the peace. We see no reason to draw back from that policy by deleting the word "to", which would have the effect, for example, that an application made under statute "to" a justice could not be made "to" a justices' clerk, even though it was the sort of matter that did not require the involvement of a justice. Clause 23(1) therefore does nothing new. I hear the phrase whispered, "But it is unnecessary". I hope that the Committee will appreciate that, because of the way in which other statutes are framed, that "to", which looks somewhat oddly placed here, does in fact become necessary. The Committee will be aware that our most skilled and wonderful lawyers are capable of finding a hair to split on the least possible occasion. The statutes in which the word "to" is included would be encompassed within the rubric we are discussing. I hope that the noble Baroness will be satisfied with that response.
Amendment No. 54 appears to seek confirmation that those functions authorised to be done by a justices' clerk or an assistant to a justices' clerk must not be done by any other person. I respectfully say that I do not see that this amendment really adds anything. The wording in subsection (2) of Clause 23 already specifically states that these functions are authorised to be done by a justices' clerk or an assistant to a justices' clerk. There is no mention of any other person undertaking these functions. Again, I should make it clear that the subsection is very similar to the present statutory provision in Section 45(2) of the Justices of the Peace Act 1997. In view of that, I hope that the noble Baroness will feel able to withdraw the amendment.
I rarely disagree with the noble Lord, Lord Clinton-Davis. However, the amendments are proved not to be worthless as they have elicited from the Minister a helpful reply, perhaps more helpful than she may have imagined. The amendments were never intended to be anything but probing.
I am grateful to those Members of the Committee who took part in the debate. The Minister put us on notice that there could indeed be a further transfer of functions from magistrates to justices' clerks but only in specified circumstances. The Minister gave an assurance to the Committee that such transfer of functions would result from consultation with the appropriate bodies. I am sure that the Magistrates' Association would be included in the consultation. That is an important matter.
I am delighted to hear that the Lord Chancellor's Department takes a different view on drafting from that adopted by the Home Office. The Home Office does not have such a high regard for the language of existing statutes and seeks to go all "new" on us. It disregards some of the existing legal language and substitutes more common or garden language. I accept entirely the Minister's careful explanation of why the word "to" is needed. During the passage of the Nationality, Immigration and Asylum Bill we heard from Home Office Ministers that even though certain words were commonly understood and had been for decades we ought to change them as they were not really "with it". I beg leave to withdraw the amendment.
I had not thought of my point before, but it is worth briefly raising. I do not expect an answer from the Minister immediately. Subsection (7) seems entirely superfluous. The subsection relates to subsections (4) and (5). Subsection (4) begins:
"The functions of a justices' clerk include".
Subsection (5) begins:
"The powers of a justices' clerk include".
Therefore, of course those subsections,
"do not limit . . . the powers and duties of a justices' clerk, or . . . the matters on which justices of the peace may obtain assistance from their clerk".
In a Bill of 113 pages, it is still worth saving four lines if one can. If the Minister took some advice about subsection (7), I think that she would find it absolutely unnecessary.
I tabled the amendment after listening carefully to the speech of the noble and learned Lord, Lord Ackner, at Second Reading. He said that he wished to ensure that under Clause 25(1) the magistrates' courts were,
"locally accessible by all communities in England and Wales. The Bill should provide for that as a statutory objective".—[Official Report, 9/12/02; col. 63.]
I agree with him.
I return to the argument that it is vital for all members of the community to have reasonable access to our courts. In our debates on Clause 1, I pressed an amendment that required the Lord Chancellor to have a duty to ensure that there was an efficient and effective system to support the work of the Supreme Court, county courts and magistrates' courts in both urban and rural areas. The amendment did not find favour with all Members of the Committee at that stage. I will not tire the Committee by repeating the arguments that I put then. In respect of the more narrow field of magistrates' courts under Clause 25, they are as valid as they were then.
Amendment No. 56 is more narrowly focused and yet more broad in its impact. It is focused solely on access to the magistrates' courts, where well over 90 per cent of all criminal cases are heard, yet it is broader and more inclusive than my amendment to Clause 1. It does not refer to rural or urban areas. The Minister seemed to think that suburban or semi-rural areas would be omitted, and I have listened to her in that respect. In the speech of the noble and learned Lord, Lord Ackner, I have found a wording that must be wholly unobjectionable to her. The amendment would include the needs of all geographical areas, ethnic groups, religious groups, and those who have any difficulties with physical access, whether they use wheelchairs or not.
If the Lord Chancellor wishes to gain support for his plans for the new courts agency and unified system, he needs to make clear in the Bill a duty to deploy the resources of the unified courts administration in such a way that all members of our community have reasonable access to magistrates' courts. I am reasonable in leaving it to him to define what is reasonable. I beg to move.
I heard what the noble Baroness said, and I am sorry to tell her that I am not convinced. What does the Lord Chancellor have to do? He has to assure himself that all members of the community have reasonable access to a magistrates' court. I do not know how he goes about his duty. If he,
"shall have regard to the need to ensure that all members of the community have reasonable access", how does he go about that? Putting a duty on the Lord Chancellor that he will find it very difficult and expensive to fulfil is inappropriate.
If a member of the community feels some inability to conform with the requirement to attend a particular magistrates' court, writes to the court in the first place and, pending any positive answer, writes to the Lord Chancellor or to his Member of Parliament, that is appropriate. However, to ensure that a duty was stated in the Bill would be to legislate inappropriately.
The noble Lord, Lord Clinton-Davis, is uncharacteristically unfair on this occasion. Like him, I have been involved in other matters in Committee upstairs and have not taken part in the debates on the Bill. However, I assume that the intention behind the amendment—I thought that it was clear—was to remind the Lord Chancellor of the need for all members of the public to have reasonable access to local magistrates' courts when considering matters such as their closure. There is great concern throughout the country when courts are closed and local people see justice taken further away from them. One gets complaints about the difficulty of getting to court and others of that nature.
I would have thought it reasonable to ask or require the Lord Chancellor to take account of the needs of the community when deciding whether a court should be closed. Perhaps the matter is covered by another part of the Bill; if so, I apologise for raising it at this stage. It seemed to me that that must be the purpose of the amendment.
Living within a few miles of Knutsford, where the argument is going on at the moment, I assure the noble Baroness that feelings run very high about the closing of local magistrates' courts and people having to travel substantial distances to other courts instead.
I support the amendment, which takes me back to my early days as a solicitor when I was a partner in a small practice. The senior partner was the justices' clerk for the area, so I was naturally involved in the local court. The chairman of the Bench was Lord Maelor, Mr T.E. Jones, formerly the Member of Parliament for Merioneth. He knew everyone in the mining community of Rhosllannerchrugog. The clerk to the magistrates, my partner, Mr Maurice Evans, knew everyone in the chemical industry in Acrefair and Cefn-mawr. Between them, they could pinpoint any local miscreant to his family and background. Nothing could have been more local. They knew their people and there was a very considerable link between the Bench, the justices' clerk and the community that they served. I like to think that they occasionally did justice quite well.
Today, that court has of course gone, as have the court at Llangollen where I was brought up and others in the area. The Wrexham court is now the centre of the district, with a radius of some 20 miles in all directions. It is quite impossible for that same link with the community to continue. I understand that the purpose of the amendment is to try to keep the magistrates' courts as local as possible to serve the community—not just the miscreants in the community, but those who are witnesses or victims, those who need the services of the court from time to time. I very much support that position.
Following on from the noble Lord, Lord Thomas of Gresford: happy days indeed. Nowadays in most courts in this country one's first task in the retiring room is to look through the list to see whether one knows anyone on it. That drives a coach and horses through the idea of local knowledge. One has to retire and declare an interest if one knows anyone, even the grandmother of anyone on the list.
I try not to be unhelpful to the noble Baroness—I never want to be unhelpful to her—but the amendment is drawn with rather a broad brush. It is like inviting us to support apple pie and mother. This provision is something we all want, but to some extent the Lord Chancellor and his colleagues are in a dilemma. People can take advantage of the new freedom to move cases around because a court has wheelchair access or better video facilities. Such matters are important in trying to improve our system of justice. I do not believe that in this context one should impose a straitjacket. Of course we all want local justice, provided we can have all the other points as well.
I too support the amendment. I do not believe that anyone need be worried about the failure to define the concept of what is reasonable. The notion of what is reasonable is perhaps the only great contribution made by British jurisprudence to the study of the law. One knows it when one sees it.
While agreeing with the points already raised, I view this amendment partly from the point of view of witnesses and partly from the point of view of magistrates. Time and again one hears of cases that have been held up and interfered with in one way or another because witnesses have not been able to travel long distances to attend a court in time. That is particularly true in rural areas. It is absolutely true that magistrates should have local knowledge, although, as the noble Viscount, Lord Tenby, said, not necessarily knowledge of the characters of those appearing in the list. It is important that the noble Baroness should heed the letter written to her by the chairman, Dr Laurence Howard, of the Central Council of Magistrates' Courts Committees, on 5th April. In that letter, which has perfectly properly been copied to some noble Lords, he said:
"Courthouse closures remain a key issue in relation to the proposals in the Bill. In interviews last year, the Lord Chancellor admitted that, in relation to the courts estate, there were vast opportunities for economies of scale".
Admittedly, those words were perhaps not the most felicitous and the word "claimed" may have been better. But that is why there are anxieties that the provisions of the Bill will facilitate centralisation and economies of closure and will get in the way of locally accessible justice.
It has its relevance, but I do not believe that the thrust of the amendment is negatived by that. There is an overriding desirability to have reasonable access to a local magistrates' court. That drives at the whole purpose of the lay magistracy and of sustaining local confidence in locally administered justice. Although the accessibility for witnesses is one matter that the Lord Chancellor should take into account, there are also many others. I hope that my noble friend's amendment receives from the noble Baroness the careful consideration that it deserves, particularly in light of the letter from which I have just read.
I support the motive of my noble friend's amendment and I agree with what my noble friends have said, but we should aim to ensure that those who attend the courts, or who are likely to attend the courts, will behave themselves once there. There are drunkards, lunatics and notorious criminals whose behaviour, according to ushers who allow people entry to a court, may be dubious.
My noble friends hope and believe that the expression "reasonable access" will cover the kind of situation that I have mentioned. If the Minister feels that the words "reasonable access" are an adequate protection, well and good, but it is arguable that we need to make it clear that good behaviour must be maintained. I suppose a slight excess of zeal may be allowed so long as people behave properly.
As we are in Committee, perhaps I may ask my noble friend a question. My noble friend spoke about the need for proper behaviour within court buildings. The Committee will be aware that such behaviour is not always adhered to. Does my noble friend agree with me that once someone is in a court building there is recourse to common law in regard to any misbehaviour that takes place and that once in a courtroom there could be recourse to contempt of court? Perhaps that reassures my noble friend about existing ways of dealing with people's behaviour.
I have listened carefully to all that has been said in an important debate which goes to the heart of our criminal justice system. Access for all is an important matter. We have a certain sympathy for the amendment in those terms because the Government want to see access for all. However, we have another important responsibility which is to ensure that the courts' estate is run well and efficiently and that it works. That is why Clause 25 is so drafted. It empowers the Lord Chancellor to direct where and when magistrates' courts are to sit. That would allow magistrates' courts' business to be conducted at any place in England and Wales. It brings magistrates' courts into line with the Crown Court, the High Court, the Court of Appeal and county courts. The power to determine when magistrates' courts sit is likely to be used as an emergency measure only; for example, when determining the days on which courts will close for civil service privilege days.
Amendment No. 56 would require the Lord Chancellor, when directing the places in which magistrates' courts may sit, to have regard to the need to ensure that all members of the community have reasonable access to a local magistrates' court. I am grateful for the way in which the issue has been raised. As the noble Baroness, Lady Scotland, said in the debate on Amendment No. 2, in our view improved access to local courts can be achieved only when the unification of the administration of the courts' system is properly in place. It is our belief that the unification of court administration will allow better use of the court estate, including increased opportunity for co-location of county courts within magistrates' courts in rural areas. That will permit a wider range of rural areas to have the services of both county courts and magistrates' courts.
There are already a number of examples of such developments, including co-location of county courts within magistrates' courts buildings in Rotherham, Kendal and Ashford. Additionally, I understand that the county court in Altringham has recently moved into improved accommodation in Trafford magistrates' court; a reverse approach, perhaps.
The rural White Paper 2000 ensures that rural needs are taken into account as part of the formal policy-making process from April 2001. This is often described as "rural-proofing" policy making, as I said in our earlier debate. It requires that government departments assess whether policies will have a different impact in rural areas; and, where necessary, decide what sort of policy adjustments or compensations need to be built into the general policy to reflect rural needs and circumstances. The Lord Chancellor will have to have regard to rural-proofing when making directions under Clause 25.
Provisions in this clause and elsewhere in the Bill will remove current statutory restrictions on where magistrates' courts can sit. Magistrates' courts are, for example, currently unable to sit on licensed premises. Some may say that that is beneficial. On a recent visit to one of my favourite rural pubs I noticed a courtroom. I was told that many decades ago it was indeed a courtroom; a court leet, I believe. But that is a digression.
Removing restrictions will introduce greater flexibility, and would allow the use of non-court buildings in local areas where appropriate.
If we were minded to accept the need for the amendment, we would hesitate to insert the phrase "the community" into legislation without any notion of what it might cover. The amendment would also need a couple of other small corrections. Clause 25(1) confers a power on the Lord Chancellor, so the amendment should not refer to a duty on him, and it should make reference to "court houses" rather than courts, since a magistrates' court is defined in the Magistrates' Courts Act 1980 as being the justices, not the building. There are some technical issues to be considered in the amendment's construction if it is deemed necessary to retable it for further clarification.
I return to the rural dimension, which has been referred to by a number of noble Lords—particularly the noble Lord, Lord Thomas of Gresford—concerned that rural services are being lost. We have made plain our commitment to work closely in this regard with the Countryside Agency and other rural bodies to develop effective policies for the delivery of rural justice. We have worked closely with them on our proposals for the civil and family estate. They are comfortable with our arrangements and with the premise that services should be defined by the service itself rather than by the bricks and mortar through which it is delivered. That is an important consideration.
The new arrangement will enable extensive co-location of services across all jurisdictions from joint facilities. The Countryside Agency is clearly happy about that. It will reduce the prospect of closures. There have been many closures in the past year for the understandable reason of rationalising and making good and effective use of the estate.
Under a unified administration it should be easier to share buildings and to timetable particular cases in courts with the right facilities. There will be increased access—which is the point of the amendment—to specialist facilities that will enable and benefit all court users. I hope with those assurances and our desire to do our best to ensure future access, the noble Baroness will withdraw her amendment.
With the greatest respect, I was not saying that there is no such thing as community. I believe the expression the noble Lord remembered was, "There is no such thing as society", but I may be wrong.
I stand corrected. Might we use the word "stakeholders" instead? My enthusiasm for the word "stakeholders" has increased since I looked in the Oxford English Dictionary and discovered that it was first used in the sense used by the Minister by my noble friend Lord Dahrendorf in the 1970s. When after the next general election we take our seats on the Benches opposite, we shall say, "We are the stakeholders now" at the same time as singing "Lloyd George knew my father".
I am not going to sing or indulge in fanciful ideas that the noble Lord, Lord Thomas, might be sitting opposite me on another occasion, but I am sure that will be the only time he and I shall have cross words on the Bill. I am grateful to the Minister for the care that he took in his response. I agree that the drafting is not as good as it should be; the amendment was tabled to stimulate our debate.
In moving the amendment I was telegraphic to a fault when I said that I underlined everything I had said in moving my amendment under Clause 1, because I did not make it clear that the underlying problem in Clause 1(2) was the public concern about court closures. I am grateful to noble Lords who picked up the cudgels on that point.
I will not go into detail on noble Lords' responses. They were all right in some respects. I will take account of everything that was said, particularly the Minister's remarks, in order to look more carefully at the drafting. I agreed with his observations, with the exception of that on the word "community". There is such anxiety about closures and the necessity to ensure clarity in the Bill in giving reasonable powers to the Lord Chancellor that I shall return to the matter in some form on Report. I beg leave to withdraw the amendment.
I intended to raise an issue discussed by the Joint Committee on Human Rights in its first report on the Bill. However, as a result of subsequent correspondence between the Joint Committee and the noble and learned Lord the Lord Chancellor, in a report published today the Joint Committee has declared itself satisfied on the issue and, it appears to me, on grounds that are convincing. In those circumstances, I do not intend to move the amendment.
We come to the difficult and thorny question of fines officers. I tabled this amendment after listening to the issues raised by the noble Viscount, Lord Tenby, at Second Reading (at col. 65 of Hansard of 9th December 2002) when he posed some questions that the Minister did not fully address. First, what will be the status of fines officers; and, secondly, from whose ranks are they likely to be drawn? The letter of the noble Baroness, Lady Scotland, stated:
"Fines officers will largely be drawn from existing MCC staff, many of whom have long experience of dealing with defaulters. They will have training and guidance to support them in their new role and this will be developed in the course of the pilot schemes".
But we need to ensure that the Minister puts the matter on the record at the Dispatch Box. If fines officers will "largely" be drawn from existing MCC staff, where will the minority be drawn from?
As a new and difficult role in the courts' system, it is essential that the correct training procedures are put in place in order for the position to be respected. As I have previously stated, fines are the most common penalty handed out by magistrates' courts. For that reason alone, this new role will be busy and demanding. It is essential that the officers are given proper support and guidelines from the beginning. We wish to know what training they will be given. Will it be completed before the first pilot scheme is launched?
We accept, as the noble Baroness, Lady Scotland, says in her letter, that fines officers will not decide the amount of any increase or discount. That amount will be set down in regulations. But they will decide whether to,
"vary in the defendant's favour the method and timing by which the fine imposed by the court should be paid, and to take 'further steps' to secure payments of a fine".
So they are taking sensitive decisions. What if they mistakenly decide not to vary terms? That could have disastrous consequences for a defendant, or it might cause him or her not to bother to pay.
As the Lord Chancellor will appoint the new fines officers, we feel that he should also have responsibility for their training. It would be common sense for the Lord Chancellor to provide this training in order to ensure consistency throughout the country. It would also enable fines officers to operate in any of the local justice areas, thereby providing flexibility of employment.
If we are to improve the system for collection of fines, it is vital that the new system is robust and well respected—otherwise people will continue to fail to pay their fines. I beg to move.
This is the first amendment to raise questions about the fines officers. The issue has caused me a good deal of concern. I support the amendment. However, having considered in detail the amendments before the Committee, there are further issues which they do not raise. I intend on Report to return to some of those matters. I apologise for not addressing them in Committee. There are two aspects with which I am particularly concerned. The first is the increase in the fine. There is considerable advantage in having interest payable on default rather than having a single massive uplift in the fine. Secondly, I am concerned about the extent to which the fines officer can take decisions to apply a clamping order. Those topics, unfortunately, cannot be discussed at this stage.
I wish to make a point which I hope will not be regarded as what the noble Baroness would describe as a "hair-splitting" one. The proposal is to add a paragraph to what is a definition clause. We might then have the following position. If it could be shown by a disgruntled defaulter that a particular fines officer had not been provided with the training required under the Act, it might be claimed that he was not a fines officer at all. That would be unfortunate.
Clause 32 provides for the Lord Chancellor to designate fines officers, whose role will be to manage the collection and enforcement of fines. I am very happy that the noble Baroness, Lady Seccombe, has read out much of my letter. I endorse everything that I said in the letter and I say from the Dispatch Box that we do not resile from any of it. That is our position. I hope that helps the noble Baroness.
Amendment No. 58, tabled by the noble Baroness, proposes that a line be added to the Bill that identifies a fines officer as someone who has been provided with training by the Lord Chancellor. I entirely take the point made by the noble and learned Lord, Lord Donaldson, that that would be an additional flaw to the provision.
It is in the interest of the fines collection scheme that fines officers are well trained. However, it is not the usual practice to make statutory provisions for training court staff.
Clause 31(1) states that fines officers are appointed by the Lord Chancellor under Section 2(1) and are designated as fines officers by him. Fines officers will largely be drawn from existing magistrates' courts committee staff, many of whom have had long experience in dealing with defaulters. The noble Baroness asked about the minority. We are now in the days of open competition where experienced and expert people can apply. I am sure that it would be open to the courts to decide whether they were satisfied that a person applying for a fines officer's job had the appropriate understanding, experience and so on.
Of course I cannot say that each and every person will be drawn from the current cadre of people who serve the courts, but the noble Baroness will know that it is more likely than not that such persons will have the ability and experience that best places them to fulfil that role. It would be quite improper on the face of the statute to exclude anyone who is not currently employed by the Court Service. The provision is framed to enable the reality of that situation to be voiced.
Guidance will be given to magistrates' courts as to the specific training a fines officer will require. These requirements may be further developed throughout the pilots. The fines collection regulations will provide clear procedures for fines officers to follow. I hope that that meets many of the concerns of the noble Baroness.
It is also right that, as I set out in the letter, the fines officer will have no power to decide whether or not a fine should be imposed or to determine the level of a fine. The Courts Bill gives a fines officer power to vary the method and timing by which the fine imposed by the court should be paid, and to take "further steps" to secure payment of a fine; for example, issuing a warrant of distress, registering the sum due in a new combined register of judgments, making an attachment of earnings order and making a clamping order. Sanctions imposed for late or non-payment are a consequence of non-compliance with the financial sentence imposed by the court and are designed primarily to encourage payment.
The noble Baroness asked what would happen if the individual applicant did not agree with the fines officer's wishes for disposal of the fines. In those circumstances there could be an appeal or a "referring back"—that is perhaps more accurate—to the court for it to so determine. Therefore, the person subjected to the fine would have a right of recourse if he was not in agreement with the arrangement made by the fines officer.
I hope that that assists the noble Baroness with the issues that she raised. I note what the noble Lord said in relation to his further matters. If and when those are raised we shall of course respond. I also reiterate that we shall meet Front Bench spokesmen and other interested noble Lords to discuss this topic between Committee and Report. If there are any issues that noble Lords want to raise between those times, or indeed between Committee dates, I shall be more than happy to respond as best I can.
I am grateful to the Minister for agreeing the contents of her letter and to having them recorded in Hansard, saying that the Government's view is that there should be open competition. If that is so, it is even more essential for some form of training to be given to applicants from outside the court service. I was interested to hear that if there were a dispute between the defendant and the fines officer, it would be referred back to the court.
We are grateful for the Minister's helpful assurances, but we shall read Hansard carefully and take it from there. At this stage, I beg leave to withdraw the amendment.
In moving Amendment No. 59, I shall speak to Amendments Nos. 60 and 61, which are intended to probe a number of issues.
"tackle poor performance and unacceptable variations".—[Official Report, 9/12/02; col. 17.]
Another issue is the statements made by the Lord Chancellor about the way in which Schedule 2 will operate in giving guidance to fines collection officers. If the officers are to be allowed to carry out the quasi-judicial functions referred to in the Bill, the regulations will need to be closely and carefully drafted to ensure that the officers can exercise their discretion appropriately.
At the moment the Bill gives the Lord Chancellor the power to amend the operation of the fines collection scheme, which is of course a pilot. That means that the scheme that he ultimately implements may bear little resemblance to the one that we are debating now. The amendment would delete from the Bill the power of the Lord Chancellor to modify or alter Schedule 2 without the approval of Parliament. In other words, what we see is what we get.
We have concerns about magistrates alone having the power to vary sentences—to increase or decrease them in their judicial function. We do not want to see fines officers taking on a judicial role and blurring the line between the administration and the Bench. Surely the European Convention on Human Rights requires punishment to be imposed by an independent and impartial tribunal after a fair and public hearing. We therefore seek assurance that the Lord Chancellor will not increase or vary the powers of fines officers without leave of Parliament. I beg to move.
I shall reiterate the purpose of Clause 31 to put in context some of the issues. Clause 31 will give court staff—the fines officers—responsibility for the management and collection of financial penalties on behalf of the court, while reserving courtroom hearings as a last resort when judicial decisions are called for. That will give magistrates time to deal more rigorously with cases of persistent default. Taken together with the provisions of Schedule 2 and Clauses 89 and 90, the new arrangements will help to prevent the build-up of arrears and increase timely payments. They will do this by a system in which the outstanding financial order is constantly monitored and prompt action is taken, through the fines collection scheme set out in Schedule 2, to ensure payment.
As we said earlier, one of the difficulties with which many magistrates are faced is the variable quality and approach of fines enforcement. Fines are a very powerful form of sentencing tool if used correctly and if properly enforced. Obviously we want the imposition and collection of fines improved throughout the court system.
Amendments Nos. 59 and 60 would prevent the modification of Schedule 2 either before or after the pilot schemes, which Clause 31 allows. Amendment No. 61 would make the regulations setting out the detail of the fines collection scheme subject to affirmative resolution, and in the case of Amendment No. 144, would make the details of the pilot schemes subject to affirmative resolution.
I understand the interest in the details of the proposed arrangements that have prompted the amendments. However, I can explain why the provision in Clause 31(5), which allows modifications of Schedule 2, is necessary if we are to get full value from the pilots. It will allow different elements of the scheme to be piloted in different areas, so that their effectiveness in improving the payment rate can be evaluated. For example, a discount for prompt payment and/or an increase for default may be piloted in one area; and wheel-clamping or registration of the debt as sanctions for defaulters may be piloted in another. That flexibility would be lost if the Government were to accept Amendment No. 59.
The enforcement measures, as a number of noble Lords have made plain, are a significant departure from existing practice. The Government believe that they should be thoroughly tested before implementation. There would be little merit in piloting the measures unless it were possible to change, or even abandon, elements of the package that did not work as intended. Pilots will be carried out immediately following Royal Assent during late 2003 or early 2004 with an aim to introducing the fines collection scheme as soon as possible following that evaluation.
The noble Baroness, Lady Seccombe, will know that those who operate within the courts are best placed to tell us how effective the measures are. We are willing to accept that some of them may not work as well in practice as they appear to work in theory or on paper. We shall evaluate the position as some of these measures may be wrong. If so, we shall set them aside.
As the Bill stands, once the pilot schemes have been evaluated, the Lord Chancellor may make an order under Clause 31(8) modifying Schedule 2 and associated legislation in the light of experience of the pilots. That final package, which may be the whole scheme as presently envisaged, or a modified scheme, would then be put to Parliament for approval under the affirmative resolution procedure before being rolled out nationally. If it seems appropriate there is nothing to prevent that happening prior to the introduction of the unified administration.
This approach will enable the Government to bring forward a package of tried and tested measures, which we can be sure will deliver the improvements in performance that all Members of the Committee want to see. However, that would not be possible were the Government to accept Amendment No. 60.
Amendment No. 61 would make any regulations in relation to fine enforcement, including those made for the purpose of enabling the scheme to operate with existing legislation, subject to the affirmative resolution of Parliament.
As currently drafted, the Bill provides for fines collection regulations that will flesh out the fines collection scheme. The regulations will set out the percentage level for discounts and increases; the procedures for enforcing a clamping order; and the responsibilities of fines officers. They will provide the detailed scheme to be tested in the pilots. The Government believe that the necessary level of detail and flexibility ought not to require a high level of parliamentary scrutiny. The Select Committee on Delegated Powers and Regulatory Reform found that the power for fines regulations to be subject to negative resolution was appropriately delegated and subject to the correct level of parliamentary control.
Lastly, I turn to Amendment No. 144. I think that I have the old grouping here.
I apologise to the Committee; I suddenly realised when I began to speak to Amendment No. 144 that that was under the old grouping, not the new one; it is now detached.
I hope that I have said enough to allow the noble Baroness to understand why we have phrased the powers for the pilots as we have. That will give us the flexibility we need.
The noble Baroness asked whether, if officers have quasi-judicial functions, the regulations will need to be carefully agreed, I think. Fines officers are concerned with administrative implementation of the court's decisions, not a quasi-judicial function. The scheme to be introduced will be based on the pilots; the requirement for confirmation by affirmative resolution is in place. Officers' powers are confined to what is in Schedule 2. The powers could be introduced in part, but additional powers could not be introduced.
I hope that I have said enough to reassure the noble Baroness on that point and that she will feel able to withdraw the amendment.
I thank the Minister for explaining her thinking on the matter. I am sure that all Members of the Committee agree that prompt action on enforcement is essential if one is to obtain a good response.
One issue concerns me. I should be glad to hear the Minister's thinking on increases in fines. We all understand that remission may be due to someone losing their employment or experiencing some other financial problem in the family. But would an increase be in interest on the amount? Otherwise, that appears to be a quasi-judicial function.
I hoped that I had made plain that the regulations will indicate the criteria to be applied for the increase to occur. They may specify that non-payment of the fine within a specified period will lead to a specified rate of increase. So fines officers will not be setting the level but implementing what the court has already determined.
I anticipate that what will happen will be similar to what happens now when a court comes to sentence. The court will tell the individual concerned that they will be fined the sum of £X and there will be the usual discussion about how the fine should be arranged over time. It may then be for the court to say, "If there are further or other difficulties, you may make application to the fines officer". I anticipate that the court would then outline the variations that the fines officer could be charged with arranging and say, "In the event that you do not agree with the fines officer, you may return the matter to court and we will determine it". So the fines officer will be the tool to deliver the judgment and sentence imposed by the court. Fines officers will not themselves be carrying out a judicial or quasi-judicial function.
We do not propose that interest will be charged in that connection. The schedule provides for a percentage increase or a discount to be set by the Lord Chancellor that will be applied universally by all courts in the appropriate circumstances. One can compare that to what happens with a value added tax return: if one does not return it within X amount of time it rises by X per cent, which tends to encourage people to pay.
As I said, each pilot will trial one arrangement—wheel clamping may be another example—and we will see which is the better course. We may find that all are equally successful and there will then be a menu from which the court can take its delight. We shall see.
I shall speak also to Amendment No. 63. The amendments cover a subject on which I have already touched but wish to expand. We are concerned about the removal of powers from magistrates to fines officers. There appears to be no safeguard in the Bill as drafted for magistrates to ensure that they can keep control of a case and exercise their judicial function, rather than handing it over to the fines officers. We seek assurance from the Minister that the court may reserve to itself any case rather than send it to a fines collection officer.
I again want to raise the issue of human rights and ensure that they will be complied with and that people will be judged by magistrates, not fines officers. It makes sense to include in the Bill provisions to enable magistrates to keep control of cases which they feel may need reviewing or changing, as they are best placed to make such decisions and have the authority to do so. On Second Reading, the Government said that the Bill allowed a court to do that, but it is not clear in the Bill. Our amendment would make it clear. I beg to move.
This may not be the most appropriate time to raise the point, but the amendments relate to fines, their enforcement and collection. I apologise to my noble friend for not having given her better notice of what I consider is an important related aspect.
When I came to the House in 1983, a friend of mine, Mr Malcolm Hurlston, asked me to be busy on his behalf. I took a deputation to see the Lord Chancellor, Lord Hailsham. My friend was concerned about consumer credit and a range of bodies had an interest in the matter. Eventually, with the support of Lord Hailsham and his department, a body called Registry Trust was established. The function of Registry Trust, which is a non-profit making body, is to work, by and large, on behalf of the consumer movement and consumer credit givers to ensure that the creditworthiness of people who get themselves into difficulty—and are sometimes fined as a result by the courts for non-payment—is codified.
If not tonight, perhaps at some other time, my noble friend can say something about the relevance of Registry Trust and its valuable work over the past 15 years. In 1985, a contract with the Lord Chancellor's Department for the administration of the registry was signed. Since then, it has been a free-standing part of, but adjacent to, the credit-giving industry and the fines enforcement agency, which we are now discussing. It is self-financing, so we are discussing interlocking the various bits of the jigsaw. The revenue for the registry comes, first, from fees from members of the public, which are set by the Lord Chancellor's Department in consultation with the Treasury. Secondly, it comes from fees from the purchases of small files, which are set at 30p per judgment compared with 40p per judgment, which was the fee when the registry was operated directly by the department in 1985. Subscriptions from purchasers of the full consumer and commercial files are agreed by the Registry Trust board and vary according to the number of purchasers. There is interest income from the trust's reserves. Since then, as we know, the credit industry has grown and grown. Many good people previously not affected by it now find that their interests and those of their families and communities are affected by the impact and implications of giving credit.
Can the Minister say anything about the development and the importance of fines officers as regards the current well-established and well-operated Registry Trust? Obviously, that body will be looking with some care at the burgeoning credit enforcement business, which is the fines officers. This matter has come completely out of the blue because I received the facts only an hour ago. The Minister may be able to say something which knits together these two important segments. I pray in aid Lord Hailsham who showed his interest in these matters, not by encouragement but through recognition of the valuable part that a body like the Registry Trust can play.
With diffidence, I follow the arguments of the noble Lord, Lord Graham, and those of the noble Baroness, Lady Seccombe. Magistrates and the courts are given targets for the collection of fines. On what do the Government base their proposals as they affect magistrates? What research have the Government undertaken on the collection of fines and on which they make their proposals? Is there any detail so far as regards the collection of fines, which Ministers and the department have worked on for the presentation of their proposals?
Magistrates face a great deal of pressure to achieve full payment of fines. It is interesting to calculate what further pressure will come about and whether the courts' system can withstand it. The approach of various courts differs. Often it relates to the prevailing economic and social conditions pertaining to given areas. I believe I have heard employment, or the lack of it, mentioned.
The work of the fines courts can create very depressing occasions. In a fines court magistrates learn the consequences of their justice. They face the reality of what they have decided. In such courts where, presumably, fines officers will attend, the lives of those fined is laid bare. The extent of poverty is sharply defined under questioning from the magistrates who are themselves under pressure to collect. It also becomes very obvious whether or not the accused has the ability to manage the debt or his or her own budget.
We are discussing very sensitive and serious matters. I would like Ministers to be able to acknowledge that the relationship between the fines officer, the magistrates and their clerk will be crucial and that the proposals within the Bill will make it easier, not harder, for magistrates and others to achieve the Government's objective.
May I hark back to the mention of human rights? At Second Reading I expressed very grave doubts as to whether the position of the fines officer was compatible with the European Convention on Human Rights and the Human Rights Act. The noble Baroness wrote a letter saying that of course they were compatible. I believe that at some stage I said, I hope in moderate language, that if that was right we could abolish any independence in the High Court, the circuit courts or in any tribunal so long as there was a right of appeal. I do not take that back.
There was a very significant passage in what the noble Baroness said earlier today. She referred to a right of appeal or, more accurately, a reference to the court by the alleged defaulter. I make it clear from my point of view that that is the difference. If a fines officer says that he is going to increase the amount to be paid, and if at that stage the alleged defaulter can say, "Thank you very much, but no, I wish the matter to be decided by a court", that is all right in my book. What is not all right is that the decision should be binding unless overturned on appeal. That would turn the matter into a judicial decision. I thought that this might be the opportunity to back track on the lines I have mentioned.
I wish to refer to the speech of the noble Lord, Lord Jones. There are figures about the non-collection of fines, which is part of the problem. They are not being collected for the most part. I am sure that the Minister will confirm that. It is important that they should be collected because if the overwhelming number of disposals of cases is by way of fines, and if they are not being paid, I can assure Members of the Committee that magistrates will be tempted into passing alternative sentences, which may not be half as attractive or applicable. Therefore, it is very important that fines are collected.
I say this so that I do not sound like a hard-hearted swine. It is also important that fines should be levied on the situation of the person paying them. That is absolutely critical. Even now, with all the training which magistrates receive, one still has cases of inappropriate fines being levied. For example, it may well be that a fine would be reasonable in certain circumstances if it were only £20, which would make the average man in the street gasp. But a fine of £20 on one particular person may present a mountain to climb whereas a fine of £1,000 for a city slicker would not be thought unduly harsh. I say to Members of the Committee something which I am sure they know already. Settling the issue of fines is of critical importance.
This debate has raised an important issue. I am not entirely convinced about the desirability of Amendments Nos. 62 and 63 as they stand. Their significance has been to raise the debate rather than propose an effective solution. There are concerns about the powers of a fines officer. I am not entirely sure that they are contrary to the Human Rights Act. I note that the Joint Committee on Human Rights has not raised in its report any particular concern over this issue. Nevertheless, the power of a fines officer to increase a fine by 50 per cent is serious. If it is to be exercised in that form, it might be a more appropriate task for the court rather than a fines officer. That is one of the reasons why the Government should consider seriously having a system of interest payments rather than a single, large increase. That would enable a defaulter to pay his fine at a much more reasonable rate.
A point of serious importance has not been raised. Although, properly, there is a right of appeal of a fines officer's decision, it can be exercised only within 10 working days. There is no provision for an extension of that time. That will mean that if the appeal is not made within 10 working days there will be no way in which it can be brought before a magistrates' court. Where there is a time limit in the Bill, unless it also specifies that the time may be extended, there is no power to extend. It cannot be done by regulations. I may be wrong, but I see no such provision in the Bill. I intend to table an amendment on Report to allow magistrates' courts to extend the time.
I shall seek to address immediately two important questions of the noble Baroness, Lady Seccombe. She asked whether there were safeguards for magistrates to keep control of cases rather than hand them over to fines officers. There are. The court may reserve a case to itself by not making a matter subject to the fines collection scheme, with the result that they will remain seized of it. Also, there will be nothing to prevent the fines officer referring a case back to a court, or the court stipulating at the point of sentencing that it wishes the matter to be referred to it at any stage. So the court will retain judicial oversight of the case throughout.
Before discussing the substance of the amendments, I shall deal with the issues that arose. I am grateful to the noble and learned Lord, Lord Donaldson, for generously accepting that if, as we provide, the issue is referred to the court for it to determine, that deals with his points. Respectfully I agree with him—not surprisingly—and thank him for the generosity that he evidenced by making that concession.
The issue raised by my noble friend Lord Graham will be dealt with when we consider Clause 90. It provides a single piece of legislation on the registration of judgments and fines. As the noble Lord mentioned, the register of county court judgments has operated successfully for 150 years—a long time. The clause will re-enact and bring up to date Sections 73 and 73A of the County Courts Act 1984, which deal with the registration of county court judgments and extend the power of registration to High Court judgments and fines. I shall discuss the matter further when we reach Clause 90.
My noble friend Lord Jones discussed the performance of magistrates' courts fines collection and the sensitivity that one needs to adopt to the different economic background against which fines are made. We agree with the noble Lord that that may have been a factor. However, in our research, it was interesting to discover that the administrative acts taken to enforce fines were different and not totally dependent on the economic backdrop against which they were made.
That leads to the question of how we can ensure that there is enforcement at an appropriately high standard across the piece. The noble Viscount, Lord Tenby, was right in saying that the problem in setting fines is that the punishment must fit the defendant as well as the crime. He is right in saying that what may be onerous for one defendant because of the size of his pocket may be a mere bagatelle for another—even a £10,000 fine, which would not be a huge impediment for some extremely wealthy defendants. Those issues must be taken into account. Again, the noble Viscount was right in saying that it is important to get the fines structure right so that a fine remains a valid sentence capable of ceasing aberrant behaviour and ensuring that people comply with their duty.
The noble Lord, Lord Jones, asked what the Government based their proposals on, and what research had been carried out. A major report on what works in fine enforcement has been undertaken as part of the Government's crime reduction programme. It will be published next month. Emerging research findings have highlighted the importance of delegating the administrative task of collecting the money to the greatest possible extent. That view was confirmed in the National Audit Office report published in March 2002 and the subsequent Public Accounts Committee report published in November 2002.
I understand why the noble Baroness tabled Amendments Nos. 62 and 63. But Schedule 2 provides for the payment and enforcement of fines, costs and compensation imposed after criminal proceedings. It provides new powers for fines officers to enable enforcement actions to be taken swiftly and without the need for a court hearing in many instances. It also gives the court additional enforcement powers on top of existing provisions.
I hope that, as a result of what I have said, the noble Baroness will not feel it necessary to press either amendment, and that she will be content to withdraw them.
I am grateful to noble Lords who have taken part in what has proved an interesting and wide-ranging debate. I am delighted that we were able to provide a vehicle for the noble Lord, Lord Graham, to talk about the fines enforcement agency. It has emerged that all noble Lords understand the importance of the imposition of an appropriate fine so that it does not have to be varied later. Obviously, circumstances can change; but it is important to ensure that the appropriate level is imposed at the right time.
I thank the noble Baroness for her detailed explanation and for undertaking to take on board what has been said. It is a serious issue, which has proved that it is even more important to return to the matter at a later stage. For now, I beg leave to withdraw the amendment.
In speaking to Amendment No. 66, I speak also to Amendments Nos. 67 and 69.
Amendment No. 66 seeks to enquire whether "clamping orders" will have to be enforced in accordance with the arrangements in the PSI Act—clamping is a licensed activity that can only be carried out under the supervision of the new Private Security Industry Authority—or whether the arrangements for clamping under Schedule 2 will be wholly separate.
Will the Government clarify the following points on clamping orders? Who will carry out the clamping? Will they have to be licensed under the PSI Act 2001? What consideration has been given to the interrelation between clamping orders under Schedule 2 and the provisions of the PSI Act? If the PSI Act is, or is not, to apply, and there has been a conscious decision taken to have, or not to have, it applied, will the Government explain the reasons for their decision? Such an order should be made only by the court and not by any other person. Amendment No. 67 seeks to ensure that.
Finally, I turn to the topic of fine collection by fines officers. The Bill states that a person commits an offence if he provides false information to a fines officer about his financial circumstances and will be liable on summary conviction to a fine. Asking for information is only valid if, in addition, it has been notified to the court which imposed the fine; the fines officer cannot go fishing for information without the court's knowledge. That would make for better management of fine collection and reinforce the general position that we have taken. The fines officer should be subordinate to the will of the court. I beg to move.
Amendment No. 67 is particularly important and I strongly support it. A clamping order is one which can have serious consequences—in some respects, more serious than an increase in the fine. For example, it may mean that a vehicle is clamped which is needed for travel to work or to take children to school. There are many circumstances in which a clamping order on a vehicle can have serious consequences.
I appreciate that a person who is liable to pay a fine and fails to do so should be aware of the possible consequences of non-payment. Excuses for non-payment should not be easily accepted. However, although I am entirely happy, in principle, with the idea of the clamping order, the arguments are very strong for saying that it is sufficiently serious to require that it should be made by the court itself and not by the fines officer—even though the fines officer's clamping order can be subject to an appeal.
I appreciate why clamping orders have excited so much anxiety. We know that vehicles are sometimes the closest to individual hearts—closer sometimes even than members of the family. Therefore, vehicles must be jealously protected.
The Government do not take the view that these amendments are necessary. I shall speak to them at some length in order to reassure noble Lords why the scheme should work well. Of course, I add the caveat that the pilot scheme will help us to taste whether the pudding is as good as it currently looks.
The amendments tabled by noble Lords and spoken to today by the noble Baroness, Lady Seccombe, seek to place restrictions on the sanction of clamping by preventing a fines officer from making a clamping order, by requiring proof of ownership prior to clamping and by restricting only to vehicles parked on the road. Amendment No. 69 would require the court to be notified in every case where a fines officer seeks means information from an offender. The whole purpose of the fines officer is that he or she has specific tasks delegated to them by the court and, at all times, is subject to the court's direction.
Amendment No. 66 adds a subsection to Schedule 2 which refers to the Private Security and Industry Act. That subsection would state that a clamping order would not be licensable conduct under the Act. The fitting of an immobilisation device is an activity liable to control under this Act, but only when fitted to a vehicle which is not on the road. Stipulating that a clamping order is not licensable conduct would effectively mean that the person instructed to enforce the clamping order could only clamp a vehicle which is parked on the road. Vehicles proved to be registered in the offender's name, but parked on a driveway, could not be clamped. Knowing that, the offender could easily evade the sanction by moving the car as the clamping enforcers arrive to prevent an immobilisation device from being fitted.
Amendment No. 67 alters the wording of paragraph 13(3) of Schedule 2 to restrict the making of a clamping order to the court. A fines officer would not be able to make a clamping order. The Government's view is that a clamping order is a means of eliciting payment or prompting the offender to contact the court. In that respect, it is no different from other enforcement methods. The decision on which method is the best one to employ is an administrative matter which should fall to the fines officer. However, under our proposals, the court will make the decision on the sale of the vehicle after it has been clamped.
The pilot schemes will reveal whether the provisions relating to clamping will cause particular difficulties. Clause 31 contains powers which will enable the fines collection scheme to be modified in the light of experience of the pilots. Should any element of the scheme fail to operate as intended, we shall take the opportunity to make any necessary adjustments.
Amendment No. 69 requires the court to be notified in every case where a fines officer seeks means information from an offender. The fines collection scheme set out in Schedule 2 is designed to ensure that responsibility for the collection of financial penalties imposed by the court is placed in the hands of administrative staff. That builds on the existing enforcement regime, under which administrative staff already exercise delegated powers, under the Justices' Clerks Rules 1999, to allow further time to pay or to vary the number and date of instalments. Both the National Audit Office and the Public Accounts Committee recommend greater delegation of enforcement responsibilities to administrative staff where appropriate.
Under the new scheme, the offender may apply to the fines officer for a variation in the initial repayment terms set by the court. The fines officer will only be able to vary the payment terms once and will not be able to determine, or alter, the level of the fine—only the rate of repayment. Subsequent requests for variation must be directed back to the court.
In support of any application for more favourable payment terms, the fines officer will expect the offender to provide information about his ability to pay. Paragraph 20 of Schedule 2 empowers the fines officer to request that information. The Government believe that it is unnecessary to inform the court of such requests as this would waste valuable court time and delay a purely administrative task. Any appeal against the fine officer's decision or any reference back to the court, or any subsequent request for variation, will be heard by the court, which will have before it any information the offender has provided at the request of the fines officer.
Furthermore, there is nothing in Schedule 2 to prevent the court at any time requesting that the fines officer report back to it on a specific case should this be deemed necessary. The fines officer's powers are clearly circumscribed by the terms of the collection order made by the court, but if the court feels that a specific case should be handled by the court and not submitted to the fines collection scheme, the court can reserve the case by not making a collection order at point of sentence. That gives into the court's hands the discretion to indicate which cases it thinks may need its careful oversight and which cases may appear to be routine and have no specific evident difficulties at the time of sentencing, and allows flexibility for the fines officer, and/or the offender who finds himself in disagreement about the instalment rate of repayment, to come back to the court for it to exercise its judicial function and to determine any dispute which may arise between the parties.
As to the point made by the noble Lord, Lord Goodhart, research has shown that involving court staff to a greater extent in chasing up fine defaulters produces results. As I said, the Public Accounts Select Committee has also recommended that more should be delegated to administrative staff, and that would appear to make sense. The enforcement of court orders is primarily an administrative process. As the noble Baroness will know from her experience, the majority of cases can be dealt with in that way.
But there are cases where circumstances change and unforeseen things happen, and what seemed reasonable in regard to repayment at the time of the court sentence becomes less reasonable as a result of those changes. But, to reassure the noble Lord, the most important thing is that throughout the fines officer remains the servant of the court and not the other way round.
The amendment seeks to ensure that a vehicle which is clamped is owned by the fine defaulter. I am sure that none of us wants to see a situation whereby a defendant has an order against him, and a car which he does not own is clamped.
The Government's drafting permits the order to be made against the car of the registered keeper, who may not be the same person as the car's owner, and it could be unduly harsh on the car's owner to find the vehicle clamped because of the default of someone else. Let us take, for example, the situation where a marriage breaks up and the car is owned by the wife. She could go off with the car and then find it clamped because her husband, who is the registered keeper, is in default of fines that have nothing to do with her. What would be fair or right about that?
My noble friend Lady Anelay asked about this at Second Reading but did not receive an answer on that occasion or in the letter sent to Peers by the noble Baroness, Lady Scotland, during the Christmas Recess. I have tabled the amendment to give the Government an opportunity to explain why they are intent upon proceeding against the registered keeper. I beg to move.
At Second Reading I suggested that as there was no necessary correlation between the keeper and the owner it would be relatively easy for a defaulter to remove his name as the car's registered keeper. The amendment is far more difficult to justify than the Government's original suggestion. I have no figures, but I venture to doubt whether more than 50 per cent of cars are owned by the people who believe they own them. Most cars are bought on hire purchase; that being so, such people are not the owners until the end of the hire purchase agreement.
I was thinking of that horrible possibility while I was sitting here—one of the advantages of being on the Cross-Benches and not moving amendments is that you can think—and it occurred to me whether there is a case for providing in the Bill that where a defaulter has a driving licence his licence should be suspended pending payment of the fine. Where there is a family car, the children still could be taken to school and, if the wife has to drive because the husband is the defaulter, I am sure that she would join with the fines officer in trying to get the fine paid.
I merely make the suggestion. There may be something in it because, if there are problems about the keeper, there are much greater problems about the owner.
I agree with the noble and learned Lord, Lord Donaldson, that there are greater problems with the amendment than with the Government's position. I respectfully adopt all the arguments that he makes about the flaws in regard to ownership.
Checking vehicle registration with the Driver and Vehicle Licensing Authority is the only means of independently establishing a link between the defaulter and the vehicle. I do not, however, suggest that that is in itself without difficulties; I acknowledge that there are the drawbacks alluded to by the noble and learned Lord, Lord Donaldson, when he made his intervention at Second Reading.
I would answer the point in part by pointing out that the fines collection scheme provides that a "further steps" notice will be sent to a defaulter who fails to co-operate with the court, signalling the intention to make a clamping order. The offender has 10 days in which to contact the fines officer. I believe that it is unlikely that that 10 day period will give the defaulter sufficient time to register the vehicle in another person's name.
Taking the example of the noble Baroness about what may happen to the poor wife who is subject to this process, the noble and learned Lord, Lord Donaldson, is right to say that it would give her an opportunity to join forces with the fines officer to ensure that proper weight is given to who should be paying the fine and the proper course to be taken.
I should also point out that even if a determined defaulter manages to re-register the vehicle or takes other steps to avoid the clamping order, the fines collection scheme provides the fines officer with a number of alternative enforcement methods including ordering deductions from earnings or benefits, distraining against the defaulter's goods, and registration of the debt. The defaulter who re-registers or hides his vehicle will therefore have been put to considerable inconvenience to no purpose. As the fines officers will be persistent in chasing payment, we expect that the majority of defaulters will eventually be persuaded to take the line of least resistance and pay what they owe.
Finally, as I have said already in relation to other amendments, the pilot schemes will reveal whether or not the clamping provision will cause significant problems. Speaking entirely for myself, I find terribly attractive the suggestion of the noble and learned Lord, Lord Donaldson, in regard to the removal of licence. I do not know whether other noble Lords share my initial response, but it is certainly something that we should think about.
Clause 31 contains powers to enable the fines collection scheme to be modified in the light of the experience of the pilots. That should be borne in mind. As I stated earlier, should any element of the scheme fail to operate as intended, we shall take the opportunity to make any necessary amendments.
The Criminal Justice Bill re-enacts Sections 35 and 40 of the Crime (Sentences) Act 1997 and will cater for driving licence suspension as an alternative sentence on default on a fine. So there is scope for some creative thinking similar to that which the noble and learned Lord on the Cross Benches has managed to do.
I, too, find the idea advanced by the noble and learned Lord, Lord Donaldson of Lymington, attractive. I can see one problem; namely, if the non-payer of the fine were employed as a bus driver or HGV driver, it might be disproportionate in terms of punishment to impose an order that would mean that the person was unable to carry out that job. So the power would have to be discretionary; and any discretionary power of that kind would have to be decided by the court and not by a fines officer.
I underline that the whole purpose of providing the flexibility of the different methods of enforcement is that an appropriate means of enforcement can be tailored to the particular person who appears before the court. Certain strategies will be more effective with one offender than with another. One has found in many circumstances that being able to drive and having a car is seen by some offenders as more valuable than anything else.
Earlier today, the Minister stressed the importance of fines and in particular their enforcement. As this schedule deals with the collection of fines, I should like to raise with her an issue that is causing considerable concern; namely, the non-payment of fines—often very substantial fines—when they have been levied on companies under the Health and Safety at Work Act etc. 1974 and under subsequent legislation.
The All-Party Group on Occupational Safety and Health, of which I have the honour to be president, has on a number of occasions raised with the noble Baroness's ministerial colleagues the fact that a number of substantial fines levied on companies situated overseas have not been paid and few steps have been taken to enforce the fines. I have in mind not only the substantial fines levied in the aftermath of the Heathrow tunnel collapse, but also those following a number of similar substantial accidents. There is a feeling that often it is too much trouble and too difficult to levy the fines on the companies when, although they have offices in the UK, the main course of business is being pursued elsewhere.
I do not want the occasion to pass without reminding the Minister of this serious concern. It may be helpful to return to this issue on Report to see whether there is a need for further legislation to make enforcement easier, either within a Bill of this nature or within the European Union. I am aware of several companies within the EU and just outside it where fines are still outstanding. Will the Minister please consider writing to me and to other Members of the Committee setting out the position. Where fines of over half a million pounds have been levied—perhaps over the past few years—but remain unpaid, could they be identified? It would be helpful to have that information so as to be able to consider whether any further steps need to be taken.
I shall be more than happy to write to Members of the Committee. I am not sure whether we have the data or whether it can be collected without disproportionate cost, but I shall make inquiries. One of the issues that we have been examining through the enforcement review is how to make the enforcement of fines of a consistently high quality. The whole point of debating these provisions is to make sure that the efficiency and value of enforcement of this nature tells on those against whom the courts have levied fines. I hope that the noble Lord will see that all these provisions have been brought forward in order to make the system better. I shall write to the noble Lord with pleasure if I have any useful information pertaining directly to the issues raised.
"A lay justice who is a member of a local authority may not act as a member of the Crown Court or a magistrates' court in proceedings brought by or against, or by way of an appeal from a decision of . . . that local authority . . . a committee or officer of that local authority"; and there is a third category that I need not go into. Frankly, that seems to be a statement of the obvious.
Subsection (2) goes on to apply the same principle to,
"A lay justice who is a member of the Common Council of the City of London", and subsection (5) provides that,
"No act is invalidated merely because of the disqualification under this section of the person by whom it is done".
The purpose of the amendment is to remove subsection (5). It seems to me that there can be no doubt in the mind of a justice of the peace who is a councillor as to whether he is disqualified or not. It must be perfectly obvious whether there is a party to whose case he should not listen.
It seems to me that if a justice of the peace who is disqualified sits, the tribunal effectively cannot be impartial for the purposes of Article 6 of the Human Rights Convention. If this House took a decision in the Pinochet case to set aside a decision because a member of the Appellate Committee sat when he had failed to disclose an interest, the same principle should apply to the magistrates' court and someone who plainly has an interest should be disqualified from sitting. If a justice of the peace sits when he or she is expressly disqualified under the clause, the hearing should be treated as a nullity. Validation under subsection (5) is unacceptable.
The issue was originally raised by the Joint Committee on Human Rights, in its first report of the Session. In the fourth report, which was published today and to which I referred earlier in another context, the committee accepted that there was no issue under Article 6.1. Paragraph 28 of the report said:
"In his reply, the Lord Chancellor explained that in the Government's view the word 'merely' would have the effect of still allowing an adjudication to be quashed when required by ECHR Article 6.1 or the common law rule against bias, while avoiding invalidity where the sitting of the disqualified JP was not incompatible with any other rule of law. The Government's response adequately answers our concern, and in our view means that the provision in clause 36 of the Courts Bill would not give rise to any significant risk of incompatibility with Article 6.1".
It says in subsection (5) that no act is invalidated,
"merely because of the disqualification under this section of the person by whom it is done".
I am reluctant to disagree with the Joint Committee on Human Rights on an issue of this kind, but in this case it has allowed itself to be too easily persuaded. It is extremely difficult to see how a tribunal containing a JP who has been disqualified under Clause 36(1) could ever be independent and impartial. The Lord Chancellor's letter, which is published as an annex to the committee's report, suggests that participation of a disqualified JP in an interlocutory hearing would not violate the convention, but that would surely depend on the nature of the decision that was taken at the interlocutory hearing. It could well contravene Article 6.
Subsection (5) would require a party complaining about the presence of a councillor on the tribunal to bring new proceedings, which might have to investigate the circumstances of the decision in the original proceedings to discover whether the tribunal was independent and impartial. That would be complicated, expensive and difficult. How could the court, for example, investigate whether other members of the bench in the original case had been influenced by the disqualified member? It would be much simpler and fairer for all concerned to say that proceedings in which a JP sits, when he or she is disqualified under Clause 36, are a nullity.
I hope that the Joint Committee on Human Rights and the Government will reconsider the issue and conclude that subsection (5) is not appropriate to be included in the clause. I beg to move.
I warmly support the noble Lord, Lord Goodhart, in moving the amendment. One might refer to the fallacy that the amendment presents without any reference to the human rights factor that he zealously mentioned. Subsections (1) and (2) of the clause say:
"A lay justice . . . may not act as"— and the reasons are given. In subsection (5), we find that:
"No act is invalidated merely because of the disqualification under this section of the person by whom it is done".
Therefore, subsection (5) is inconsistent with subsections (1) and (2). If it remains, we should have enacted a contradiction, which is something that one should never do. Indeed, to go a little further and borrow the phrase used by the noble Lord, Lord Goodhart, we would be enacting a nullity.
I support the amendment, but I have at the back of my mind a difficulty. In the rule of public law, decisions by officers who prima facie have authority to act stand until set aside. That is a valuable provision in many circumstances. I support the amendment and hope that the Government may give some thought to how they might provide that the disqualification produces an avoidable situation rather than a complete nullity.
I want to change the situation. I should have looked into the following matter, but this will save me writing a letter. Will the Minister or her staff look into the question of what is meant by the court of the,
I have had some connections with the court of Common Council. I knew of a lady who was elected to it as a "common councilman". That has some relevance to a later amendment. I understood that when she went to the court of aldermen, she left the court of Common Council. However, there may be some statutory provision that says that the court of Common Council for some purposes includes the court of aldermen. It must be remembered that all members of the court of aldermen are lay magistrates.
I, too, am troubled by subsection (5), which appears to be in stark contradiction to what is said before. I am sure that my noble and learned friend can draw a distinction, but I am not wise enough to see what that is at this stage.
The point made by the noble Lord, Lord Renton, is profound. There is nothing here that should divide us politically, as it is purely a drafting matter. On the face of it, does not subsection (5) contradict everything said in subsections (1) and (2)?
I shall not spoil the proceedings. I, too, support the amendment for lay reasons rather than those adduced by the lawyers who took part in the debate.
We are talking about disqualification of lay justices who are members of local authorities. I make the obvious point that the Explanatory Notes state:
"This clause makes the same provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority".
Is it already the case that if a magistrate acts in such cases, even though disqualified, the decision taken stands? Is it a case of repeating the current position? If that is the case, how many times has it been discovered that the rules have been broken? I am rather puzzled that no one would have noticed that situation. The court officials who make up sittings rosters would surely know who the members of local authorities were and would not roster those people to sit when a case involved those local authorities.
Like other speakers, I accept that the aim is to try to avoid bad practice in these cases. A decision that is taken in a local authority case by someone who is a member of the relevant local authority may not necessarily be a bad decision, but no one knows that as no one knows the grounds on which it was taken. The noble Lord, Lord Goodhart, mentioned that matter. Therefore, such a decision would not earn the respect and trust of the public.
I deployed a similar argument when we discussed a similar provision during the passage of the Ofcom Bill which concerned the way in which Ofcom boards operated. I lost the argument on that occasion. I hope that given the arguments deployed by lawyers such as the noble and learned Lord, Lord Donaldson, we shall achieve the right result today. As my noble friend Lord Renton said, subsections (1) and (5) appear to be in conflict. I assume that subsection (1) tells us what we should not do and subsection (5) tackles the actions of those of us who are bad enough to do what we should not do. I revert to the nub of the matter; namely, that a decision regarding a local authority that is taken by someone who is a member of that local authority should not stand as it would not earn the respect of the people who use the justice system.
"This clause makes the same provision as section 66 of the JPA 1997: which provides for the disqualification of magistrates who are members of local authorities from acting in cases involving the relevant local authority".
However, subsection (5) of Clause 36 states:
"No act is invalidated . . . because of the disqualification under this section of the person by whom it is done"
We are in an absurd position.
I understand the anxiety expressed by Members of the Committee in relation to the issue we are discussing. However, I say straight away that I agree with the committee that has not been prevailed upon to reach the view that the provision is appropriately phrased but has reached that view because it is right so to do. I understand that the noble Lord, Lord Goodhart, does not agree with the committee's conclusions but I respectfully say that the Government do. I shall explain why.
The noble Lord, Lord Goodhart, rightly raised the issue as a matter of concern. I hope that I shall be able further to explain the matter. As Members of the Committee are aware, the phrase in question is a re-enactment of Section 66(6) of the Justices of the Peace Act 1997 and is a standard inclusion in disqualification clauses. The motive behind the amendment is a fear that the inclusion could be incompatible with Article 6 of the European Convention on Human Rights which gives the right to an impartial tribunal. There may be a misunderstanding here of the effect of the phrase and the interaction between the statutes. As the noble Lord, Lord Goodhart, said, the Joint Committee on Human Rights raised a similar point and we offered it reassurances which I am happy to repeat now.
We respectfully suggest that the phrase should remain part of the Bill. The use of the word "merely" in the clause is crucial. If a local authority justice were to adjudicate where Article 6 of the Human Rights Act is engaged and in circumstances where that article is violated by his doing so, that would be unlawful by reason of Section 6 of the Human Rights Act 1998. But where he or she acts in circumstances that do not engage the article, or where the participation does not violate it—for example, at an interlocutory hearing—the subsection provides that this action will not be invalidated merely because of the disqualification. If no violation or engagement of Section 6 occurs when a lay magistrate takes certain judicial decisions proceedings, those decisions should stand. It will always be open to a party to appeal if it is felt that Article 6 bites in any instance. But where no prejudice is caused by the magistrate's interest, it is unreasonable, burdensome and an unsound principle to invalidate judicial decisions.
Clause 36(5) does not, therefore, override the requirements of impartiality imposed by Article 6 of the European Convention on Human Rights or by English common law—I believe that the noble Lord, Lord Renton, expressed anxiety in that regard—nor does it purport to do so. We are satisfied that it could not be interpreted in that manner. I hope that I have better explained why we say that there is no contradiction as between subsections (1) and (2) and subsection (5).
I am grateful to the noble Baroness for giving way. Before she leaves that subject, I wish to ask a question which may have a completely obvious answer. If that is the case, I apologise in advance. The noble Baroness seeks to reassure the Committee by explaining carefully that there is a get-out provision here; that is, a process of appeal if partiality has been involved. However, decisions taken by magistrates are taken in private in a retiring room. How do the Government anticipate that an aggrieved person will be able to produce evidence that partiality has been shown?
It would depend on the person making the challenge. The noble Baroness will know that there may be cases where none of those participating is immediately aware that a magistrate has an interest in the case. However, everyone is content with the proceedings and there is no reason to seek to overturn the relevant decision. If, however, a party becomes concerned that a magistrate should have been disqualified, the provision we are discussing provides an avenue through which the decision is voidable but it is not void from the beginning. The provision enables the matter to be brought to the attention of the court. The court can determine whether there has been impropriety and can strike down a decision. However, there would have to be a reason for striking down a decision, not merely because technically an infringement had occurred. I must stress the importance of the word "merely" in this regard.
I am persuaded by my noble friend's argument but I am not persuaded that we cannot improve on the wording of the provision. There is nothing between us. Will my noble friend take the measure away and reconsider it? That is all we ask. I shall not vote against the Government; I love the Government. I ask my noble friend to reconsider the matter. It is an important matter. There should be no room for doubt.
"Disqualification of lay justices who are members of local authorities".
However, subsection (5) states:
"No act is invalidated merely because of the disqualification under this section of the person by whom it is done".
That person could be a lay justice.
I understand the anxiety, but perhaps I can give an example that is in parallel with the matter, although not exactly the same. Members of the Committee will know that it is important that lay justices be British. That is the condition that we have at the moment. Decisions made by magistrates found to be disqualified by reasons of nationality before that discovery should stand unless the disqualification has prejudiced a party.
A number of lay magistrates found themselves in that difficulty. They had lived here for many years and assumed they were entitled to be magistrates. No one for a second cast any aspersion on the nature of their judgment, but they were in due course found to have been disqualified. That is a parallel position, and there is no problem.
I gave a parallel example of a disqualification that does not impinge on the quality of the decision. I simply sought to assist the Committee to understand why having a disqualification may not impinge on the decision.
I understand the points made by Members of the Committee. We are content both with how the clause is phrased and that we have the support of the Committee in relation to the matter. However, nothing is lost by looking and checking to make sure that the drafting is as good as it can be, so I will happily do that. At the moment, my limited ingenuity does not let me envisage how it can be improved, but I am very fallible, and I am sure that others can do far better.
I am grateful to have had support for the amendment from both sides of the Committee. I am particularly grateful to the noble and learned Lord, Lord Donaldson of Lymington, for pointing out what was not an error in the amendment but in how I presented it.
I accept that a decision taken by a disqualified justice of the peace or a tribunal that includes one should not be regarded as a nullity but as a decision that is voidable. That is in accordance with the common law principle that a decision taken by a judicial body that appears to be properly constituted is treated as valid unless and until it is challenged. However, that does not remove in any way the need for the amendment. The vice of subsection (5) would be to prevent people being able to set aside decisions taken by a disqualified magistrate or a tribunal that includes one.
The Minister referred to the fact, which is of course true, that the provision repeats a subsection in the Justices of the Peace Act 1997. That is not an adequate reason to retain a similar provision in the Bill. It was wrongly conceived to start with. Let us suppose that someone had been disqualified expressly by a provision in a Bill in circumstances in which, if they were not disqualified, there would be reason to believe that they might be an interested party. In those circumstances, it is plainly right that the decision should be capable of being set aside, whether or not it infringes the Human Rights Act. The case for not including subsection (5) is made much stronger by the passage of that Act. A very large proportion of the cases in which a disqualified magistrate has sat could be set aside anyway, because of a conflict with that Act.
That being the case it seems in everyone's interests if, instead of having to show that in an individual case there was some reason to believe that the tribunal was impartial, we simply recognised the fact that if a decision was taken by a tribunal that included a JP who was disqualified, it should be capable of being set aside on that ground without anyone having to undertake any further investigations.
The Minister raised a point about the validation of decisions taken by a magistrate who turned out to be disqualified because of being a foreign citizen. That matter is entirely different, and is dealt with by Clause 37. We have not tabled an amendment to that clause, because we recognise that there will be no or very few cases where the disqualification would render the tribunal anything other than independent and impartial. The technicality is purely to do with the way in which the JP was appointed. It is perfectly possible that, in every such case, the tribunal would not only be but be seen to be independent and impartial, notwithstanding a technical defect in the method of appointment. The two cases are miles apart.
The amendment is important, and I have every intention of bringing it back on Report.
Just so that I understand what the noble Lord is bringing back on Report, will he confirm that he is saying that in no circumstances whatever could a decision that would include a disqualified person under the clause ever be taken?
My view is that the chances of that are extremely remote. Although not impossible, they are so unusual that it is clearly in the public interest simply not to require applicants to set aside cases to prove an apparent lack of independence and impartiality. By far the simplest, cheapest and best course is to say that all cases that fall into the category—frankly, there will not be many—will be set aside if challenged. I beg leave to withdraw the amendment.
Prior to 31st January 2002 a number of people born outside the UK but resident here applied to become magistrates. They were appointed on the recommendation of the Lord Chancellor's advisory committee on justices of the peace. It was subsequently discovered that persons born outside the UK, the Commonwealth or the Republic of Ireland should not have been appointed because that would infringe limitations established in the Act of Settlement 1700 on those who would hold office under the Crown. On 31st January 2002 those magistrates were all suspended from sitting.
We move into the third part of the Bill dealing with criminal jurisdiction and procedure in the magistrates' courts. Clause 40, upon which Schedule 3 depends, relates to rulings at pre-trial hearings in magistrates' courts.
I am not over-enamoured with pre-trial hearings as they presently exist in the Crown Court. There are two types: the preparatory hearing in which the decision of the judge stands but may be appealed to the Court of Appeal; and the pre-trial hearing in which the judge makes a ruling that he may alter in the course of the hearing on a further application being made or by reason of his own volition.
I find that there is a great waste of time, effort and expense in such pre-trial hearings. Last year I had a case for which there was a preparatory hearing: a judge ruled a video admissible; the case went to the Court of Appeal where it was considered at length; it went back for the trial with the video admitted and the defendant was acquitted. The trip to the Court of Appeal and the day spent in the preparatory hearing were a waste of time.
On Tuesday last week there was a pre-trial hearing in which an application was made by the Crown to strike out the defence as though it were a civil case. Of course, the judge had to make findings of fact that he could not make because there was no evidence before him, so there was a completely useless hearing on that.
I turn to the schedule and consider it in the light of those experiences. It extends pre-trial hearings to the magistrates' court. I believe that such a hearing is justifiable only when there are questions as to the admissibility of evidence. In a magistrates' court there has always been the problem that the justices can look at a piece of evidence, rule it inadmissible and then they hear the case, having to forget everything that they have heard in relation to the evidence that has been ruled inadmissible.
There is a case for one set of magistrates to rule on admissibility providing—as Amendment No. 72 mentions—another set of magistrates hears the case. Any other question of law relating to the case is to be the subject of a pre-trial hearing. The Government should consider that carefully. Any question of law may be brought before the magistrates at a pre-trial hearing. In the ordinary course of events they continue to hear the case; it is summary trial. If in the course of the case on a question of law they make a ruling that is inopportune or wrong, that can be appealed by way of case stated to the Divisional Court. If the defendant is acquitted the matter does not arise.
It appears to me that the Bill introduces into the system an unnecessary additional burden, that any other question of law can be part of the pre-trial hearing. If that is the case, before the main trial starts it is right that there should be an opportunity to appeal that original decision. Then we are back where we were in the case in which I was involved last year: one wastes time in a pre-trial hearing, one goes to the Court of Appeal and the person is acquitted in the end anyway in what is supposed to be a summary process.
I disagree with those who support Amendment No. 71A in that a ruling at a pre-trial hearing should be taken on a case stated to the Divisional Court. That is hugely expensive, a waste of time for the Divisional Court and it seems to me that if we are to adopt a procedure whereby any point of law can be the subject matter of a pre-trial hearing, and there is to be an appeal, it should go straight to the Crown Court to be dealt with. That would be much more sensible. That is why we put forward Amendment No. 71.
I must make it clear that I believe that the Government should consider carefully whether it is worth while bringing in to the magistrates' court hearing all the paraphernalia that has existed in the Crown Court and that has not, in my view, operated particularly successfully. It appears to be a good idea—let us clear everything out of the way so that when we come to trial it will not take long—but in summary procedures it is just an additional hearing. As a member of the Bar, I should not complain about that as the more satellite litigation that is passed by Parliament the better, and the more we earn. But in the interests of the public, such pre-trial hearings should not be extended on any matter of law. I beg to move.
In speaking to Amendment No. 71, moved by the noble Lord, Lord Thomas of Gresford, I shall speak also to amendments in the names of my noble friends, Amendments Nos. 71A and 72.
I listened carefully to what the noble Lord, Lord Thomas of Gresford, said. He has experience at the coal-face of criminal law. He has been through the mill in relation to pre-trial hearings. He is not too enamoured of them and he has given his reasons. In the light of that he is right to table his amendment.
I have problems with Amendment No. 71. It is novel. It creates the right of appeal on matters of fact and matters of law to the Crown Court prior to conviction. My questions to the noble Lord, Lord Thomas of Gresford, which I would be grateful if he would address once the Minister has spoken, are as follows: does he expect that the judge would sit alone or with justices and would there be an appeal to the Divisional Court thereafter? I wonder how it will work. I quarrel not with the right of appeal but with whether it should be to the Crown Court. That would not be consistent with the rest of the current legal process where the Crown Court has jurisdiction to hear an appeal from the magistrates' court only where there has been a conviction.
My Amendment No. 71A is a probing amendment to provide an alternative route to that proposed by the noble Lord, Lord Thomas. It proposes that a more appropriate route would be to the Divisional Court of the Queen's Bench Division. I heard what the noble Lord, Lord Thomas, said about that being expensive and a waste of time; it depends what one considers to be a waste of time considering the result of a case.
Surely at the preliminary hearing in a magistrates' court the matters at issue will be matters of law, not fact. The noble Lord, Lord Thomas, referred to inadmissibility of evidence. If there are contested matters of fact I could understand why the Crown Court might be seen as the more appropriate tribunal to hear the appeal.
If an appeal is to be taken from the decision of a magistrates' court on the admissibility of evidence, surely it will happen before any decision is taken as to the guilt or innocence of the accused. Since there is not yet a decision on the facts—unless we are talking about an attempt to exclude evidence on a voir dire—there are problems with Amendment No. 71. Since the decision will be on matters of law, it would be more appropriate for the appeal to go to the Divisional Court, which is the more usual court to hear an appeal on a matter of law from a magistrates' court or the Crown Court when exercising its appellate jurisdiction in relation to the decision of a magistrates' court.
The noble Lord, Lord Thomas, referred to Amendment No. 72. I tabled it to deal with admissibility of evidence, but we have got to the core of that matter so I shall not repeat what he said. But I have a worry that where the magistrates who sit in judgment on a defendant when the case is heard have knowledge of evidence that would not be admitted at the trial itself and that may be prejudicial to the defendant, it would be difficult for them to set aside their memory of that evidence.
The Minister might say that at a trial hearing the same magistrates would not be empanelled to sit on the Bench as had been empanelled to hear an application at a pre-trial hearing. If we had a 100 per cent guarantee of that, the problems we are talking about would not arise. It may be good practice in magistrates' courts administration that the same panel of magistrates would not be empanelled, but there is no guarantee of that.
That problem does not arise with pre-trial hearings in the Crown Court because the judge who hears the application is not both the jury and the dispenser of sentence in the court. The Bill has raised a novel problem; the noble Lord, Lord Thomas of Gresford, proposes a novel solution. I have thrown another pebble into the pond which I hope we will sort out either now or before Report stage.
Schedule 3 sets out the provision for making pre-trial rulings in the magistrates' court, bringing the new legislation in line with current Crown Court practice. Under Schedule 3 a pre-trial ruling can be made by judges and magistrates at pre-trial hearings in criminal cases that are to be tried summarily in the magistrates' court and will extend to issues of substantive law and admissibility of evidence.
Schedule 3 creates a new power in the magistrates' court aligned to that in the Crown Court to make binding rulings as to questions of law and admissibility at pre-trial hearings. Amendment No. 71 would introduce a right of appeal, as has been carefully explained.
At present, matters of law and evidence are considered during the course of a trial. Procedurally this is a grey area as the lay justices or district judge in a magistrates' court charged with ruling on matters such as the admissibility of evidence must also subsequently determine the guilt or innocence of a defendant and are finders of both fact and law. The impact of the ruling can lead to a trial being adjourned or aborted.
The intention of the schedule is to allow for issues of law and evidence to be identified at an early stage and resolved in advance of the trial. It is an important new power when considered in the light of the new integrated structure of the criminal courts to be created by the Bill and the flexible deployment of the judiciary we are seeking within the new structure.
If the overall sentencing jurisdiction of the magistrates' court is extended as provided for in the Criminal Justice Bill, more serious and potentially complex cases will be retained for summary trial. The power to make binding rulings will be a useful aid to pre-trial preparation and progression.
The Government recognise the importance of ensuring fairness in court proceedings—that goes without saying. That is reflected in the safeguards contained within Schedule 3, which provide for a ruling to be varied or discharged in certain circumstances. There exist also wider avenues of appeal available at the conclusion of proceedings in the magistrates' court, particularly an appeal to the Crown Court against conviction which takes the form of a rehearing of the whole case, as I am sure the Committee will appreciate.
Amendment No. 71A would permit any party to a criminal case to make an interlocutory appeal to the High Court against the making of a binding ruling, such procedure currently being available only at the conclusion of the substantive proceedings.
As with Amendment No. 71, lay justices or district judges charged with ruling on matters such as the admissibility of evidence must subsequently determine the guilt or innocence of a defendant and again are finders of both fact and law. The impact of the ruling can lead to the trail being adjourned or aborted.
Amendment No. 72 proposes a further subsection to new Section 8A, the effect of which would be to require rules of court that may provide for a differently constituted magistrates' court from that which made a binding ruling at a pre-trial hearing to hear the subsequent trial.
At present, a Bench that makes a substantive ruling on an issue of law or admissibility of evidence at the outset of the trial may be required by the rules of natural justice to disqualify itself from hearing the trial. Invariably, this will result in an adjournment with associated inconvenience to all parties involved. The new provisions will allow a different constitution to make such rulings at an earlier stage, meaning that witnesses will not be required to attend court unnecessarily. We argue that the amendment is unnecessary because the common law rules of natural justice would require individual magistrates acting as the tribunal of both fact and law who have heard evidence which they subsequently ruled inadmissible to disqualify themselves from hearing the trial.
The fact that a pre-trial hearing is separate from and does not constitute the start of a summary trial is made clear in the schedule. It is implicit that magistrates' courts, constituted differently or the same, can deal with the separate hearings, providing for the necessary flexibility in each case to be considered individually. Additional rules of court are not needed in these circumstances.
Our position is simple. There should be no appeal until the case is ended. I am not clear, and I am not sure that Members opposite are clear, what would be a suitable alternative and how it might work. I rest my case on that point.
Before the noble Lord, Lord Thomas of Gresford, I expect, begs leave to withdraw his amendment, it may be helpful to make clear that my Amendment No. 72 answers the question posed by the Minister. If one could be sure that the same panel of magistrates did not sit to determine a person's guilt or innocence as sat for the pre-trial hearing, we might be happier. I am grateful to the noble Lord for the attention that he has paid to these issues. Certainly, I shall be looking very carefully at our amendments before we consider bringing them back on Report.
First, there is no justification for introducing pre-trial hearings into magistrates' court proceedings simply because it happens in the Crown Court. The mode of trial and the division of responsibility is so very different that it is quite impossible to marry the two things together just to tidy up the procedures.
There is a case for magistrates having a pre-trial hearing for admissibility of evidence. I can see that. It would be easy to arrange for a second and different tribunal of magistrates to hear the merits of the case when it is finally heard. It is not entirely straightforward; there are some difficulties. Evidence may be called in front of one set of magistrates. There is no transcript of that, so it could be quite different in the main trial. There are problems.
As to other points of law, often it is necessary to establish a factual basis before a point of law can be considered. The Court of Appeal and the Divisional Court do not like dealing with hypothetical situations; they like to deal with facts. Accordingly, any broad question of law may require all the evidence being heard by the tribunal in the first magistrates' court in order to decide the point. However, establishing that factual nexus wastes time. The witnesses must return for the full trial. They will be troubled twice instead of once. Any discrepancies between what they say at the first hearing will be highlighted at the second, in what is supposed to be a summary procedure.
Therefore, I suggest that the Government think very carefully about the matter. Magistrates' courts could hear matters regarding the admissibility of evidence and the voir dire but nothing beyond that. Their proceedings should be kept as a summary trial. With the hope that the Government will rethink the matter, I withdraw the amendment.