My Lords, the noble Baroness, Lady Anelay, moving an amendment in Committee on this point, asked me to assure the House that the annual report would cover more than just the business of the courts. This amendment underlines the assurance I gave in Committee that the operations of the new agency will be covered in the annual report.
The amendment provides that the Lord Chancellor must publish an annual report which covers the,
"way in which he has discharged his general duty".
His general duty, as defined in Clause 1, requires him to,
"ensure that there is an efficient and effective system to support the carrying on of the business" of the courts,
"and that appropriate services are provided for those courts".
I beg to move.
My Lords, I thank the Minister for responding to the concerns I expressed in Committee. It is a helpful start. I hope the day goes on as usefully.
My amendment in Committee referred to the manner in which the Lord Chancellor would discharge his duty. I was taken to task by the drafting wizard on my own Benches, the noble Lord, Lord Renton, who made it clear that the word "manner" was not felicitous. I was trying to find another word. The Government saved me that search by finding the right one. I support the amendment.
moved Amendment No. 2:
Page 2, line 3, at end insert—
"(5) The Lord Chancellor shall discharge his general duty in relation to the courts in accordance with an annual national strategic plan ("the national plan").
(6) The national plan must be approved by a resolution of each House of Parliament before the beginning of the year to which it relates.
(7) The national plan may be modified by the Lord Chancellor during the year to which it relates provided such modification is approved by a resolution of each House of Parliament prior to its being made.
(8) The Lord Chancellor shall discharge his general duty in relation to the courts in each of the areas specified under section 4(2) in accordance with an annual local strategic plan for each area ("a local plan").
(9) The Lord Chancellor shall submit a local plan to each area justice board established under section 4 containing his proposals for discharging his general duty in relation to the courts in that board's area.
(10) A local plan must be approved by the board to which it has been submitted before the beginning of the year to which it relates.
(11) The Lord Chancellor may modify a local plan during the year to which it relates provided such modification is approved by the board to which it has been submitted prior to its being made."
My Lords, the noble Lord, Lord Goodhart, and I have agreed a large grouping of amendments so that we can debate the core issues underlying the Government's creation of a unified courts administration and its impact on the administration of the magistrates', Crown and county courts.
Amendments Nos. 2 to 17, 162 and 163 are mine and are supported by the noble Lords, Lord Goodhart and Lord Phillips of Sudbury; the Government have put down Amendments Nos. 18, 20 and 24. Amendment No. 19 is my amendment to government Amendment No. 18 and Amendments Nos. 21, 22 and 25 are Liberal Democrat amendments to government amendments. I wholeheartedly support the Liberal Democrat amendments.
I apologise in advance for taking much longer than would be my normal custom in proposing the amendments. That is not simply because of the huge group of amendments but because we are here debating changes to a system of the administration of the magistrates' courts that has been settled for more than a generation. It is right that we put on record today, for both magistrates and the wider public, how we have arrived at the position we take now.
The objective of the opposition parties and the Cross Benches has been to try to overcome the objections to the Government's proposals in the Bill expressed across the Chamber in Committee, at cols. 1062 to 1072 and 1088 to 1118 of the Official Report, on 28th January. The sheer number of pages reflects the level of concern of Members of the Committee.
We have had to develop our position from that which we argued in Committee to take account of the views expressed in those debates and subsequently by the Magistrates' Association and the Central Council of Magistrates' Courts Committees. We had to accept that we did not command substantial support to carry forward our first position. I took particular note of the arguments made by the noble Lord, Lord Borrie, and the noble Lord, Lord Clinton-Davis. I welcome the fact that, as ever, both noble Lords are in their places. They argued that any system created by the Bill must work as appropriately for Crown and county courts as for magistrates' courts.
Since then, the Government have been left in no doubt about the unpopularity of their original proposals among magistrates. Letters have flooded into the LCD from chairs of Benches in every quarter of the United Kingdom. I know because they were kind enough to copy those letters to me. The one point of agreement for the Government from the chairs of Benches and noble Lords is that the organisation of the courts should move forward to a unified courts administration.
Before the Easter Recess, the noble Lord, Lord Goodhart, and I had a meeting with the noble Baroness, Lady Scotland. I thank her and her officials for the time they spent with us and the productive results of that meeting. The noble Viscount, Lord Tenby, was unfortunately unable to attend but has been kept in the loop throughout the process.
Over the recess, the Government then tabled a vast number of amendments covering the whole Bill. Those have generally improved the Bill—indeed, I am tempted to say out of all recognition. But there is still progress to be made. The amendments to Clauses 4 and 5 go some way to meeting our objections, but four significant objections remain. If they are addressed, then, and only then, can we accept the Government's new clauses.
Our objections to new clauses 4 and 5 are represented by the opposition amendments to government amendments today. Those four amendments are Amendment No. 19 in my name and Amendments Nos. 21, 22 and 25 in the names of the noble Lords, Lord Goodhart and Lord Phillips. I will of course leave the noble Lords, Lord Goodhart and Lord Phillips, to put the case for their amendments in detail.
Amendment No. 19, in my name, refers to the importance of courts boards being coterminous with police forces. I have left a degree of flexibility in the amendment so that the number of courts boards may change if and when the number of police forces changes in the future. However, the principle remains constant. We debated it at length in Committee, so I shall not do so today. The amendment would ensure that courts boards are local in their extent and effect, which is vital to maintain the local nature of the delivery of justice that has proved so important to the success of the magistrates' courts system. That local involvement, influence and responsibility must continue into the unified courts administration.
I am also aware that my noble and learned friend Lord Mackay of Clashfern has some concerns about one part of the drafting of government amendments. I am delighted to see him in the Chamber today, and I am sure that he will put his case later.
Since our last debate on the matter, the Government have held their consultation exercise and completed it. They sent a letter on the results of that exercise to me and to other noble Lords who have taken part in the debates. It says:
"There is also a clear message emerging that the 42 criminal justice areas should be the building block for the new organisation and that, at least initially, the number of Boards should follow suit, although the particular needs of London needed to be looked at closely".
Amendment No. 19 would achieve just that. As I am in such harmony with the results of the consultation, I have hopes that the Government will wish to accept my amendment. If they feel that it is not properly drafted, I will give them the opportunity to say so and promise to bring it back at Third Reading. I wait with bated breath.
I turn briefly to outline the purposes of the amendments to Clause 1, to put on record what we are trying to achieve. However, to save time I shall refer only to the points on which they differ from the government amendments.
Our amendments rename the dreaded CACs—the acronym infelicitously given by the Government—area justice boards. The noble Lord, Lord Phillips of Sudbury, conjured up that name from the ether, and I give him credit for it. It is an appropriate name to convey the fact that we believe that the boards should be local and businesslike, with functions to match. I am pleased that the Government have abandoned that dreaded word "CAC" and given those bodies new life under the businesslike name "courts board", which is a definite improvement.
Our amendments would, in general, give Parliament the right to approve the national business plan; give the area justice boards the right to accept or reject the local business plan; allow the Lord Chancellor to submit a modified plan to both Parliament and the area justice board; give the area justice board the right to give or refuse consent to the appointment by the Lord Chancellor of the chief officer of the area; make the Lord Chancellor have regard to the need to ensure that the area justice boards were coterminous with police areas; and, if the Lord Chancellor specified a different area, require him to lay before Parliament a statement giving his reasons. The amendments would also ensure that there were two magistrates rather than one on the board and that appointments were made under the Nolan system. Finally, it would provide for the regulations that govern Clause 5 to be issued by order. That package provided a good basis for our discussion with the Government in the past month.
Amendment No. 3, inserting a new Clause after Clause 1, is a retabling of an amendment from the Committee stage, so I shall not detain noble Lords long on it. The amendment would give a statutory basis to the courts agency that the Lord Chancellor intends to establish and set out clearly in the Bill the functions of the agency. Since I moved that amendment, and having had a meeting with the noble Baroness, Lady Scotland, the Government have kindly sent me a written statement of the legal advice that they have received as to why they rejected my original amendment. I was not impressed in Committee simply to be told, "You can't have that because it has not been done before". That is not how we work. The Government have kindly gone much further than that and given full legal advice as to why it would be inappropriate in law to have two seats of power in a national administration—one in the Lord Chancellor's Department and one locally. I should be grateful if the Minister would put on record what that advice is, and put the advice in the Library for other noble Lords to consult.
We are now prepared not to press our amendments to Clause 1, or those consequential upon them, although we regret that. We accept government new Clauses 4 and 5, but only if our four remaining objections are addressed. Since Easter, the Magistrates' Association has carried out its own consultation and has published a detailed paper saying why it accepts all the government amendments. At the end of that paper, it says that it accepts our modest amendments to the government amendments. The Central Council of Magistrates' Courts Committees accepts our amendments to the government amendments, but it continues to have very grave concerns about the Government's position. I have received a few letters from chairs of benches so far; no doubt noble Lords and Members in another place will receive many more as the Bill progresses.
I believe that we can still make progress. Our amendments to the government amendments make that limited but practical and vital progress. I beg to move.
My Lords, my noble friend Lady Anelay has gone to a tremendous amount of trouble with this rather complicated group of amendments, but they are fundamental. Up to a point they overlap and coincide with amendments in the same group tabled by the Government. This breaks new ground, which is necessary bearing in mind that the magistrates' courts are being transferred from the Home Secretary's responsibility to that of the Lord Chancellor.
In basic principle, however, the views put forward by my noble friend Lady Anelay would be workable and are sound. Therefore, I hope that the Government will feel that even if they wish to modify some of the detail, the views that my noble friend Lady Anelay has put forward should be accepted.
My Lords, mention has been made of a difficulty that I have with new Clause 5 which the Government have proposed. To my mind, a perhaps completely novel procedure—if it is not completely novel, it is certainly exceptional—has been adopted for modifying the statutory functions of the boards as prescribed in new Clause 5. It provides that the Lord Chancellor can by guidance supplement the functions conferred on the boards by the statute. I am not aware of any other situation in which guidance has been used as an instrument for amending primary legislation. There is a good deal of talk, as there has been over the years, about the propriety of amending statutes by secondary legislation, but this is a step further. Without the ordinary process for such change, in practical terms, it is difficult to know how a person who is not very familiar with the statutes can in years to come find out the current functions of these boards. I do not think that it would occur to one to look through the guidance issued to find the changes.
My Lords, I have my name to a number of the amendments in this group. From my point of view, and I should think from that of many noble Lords, placing such a huge number of crucial amendments in one group makes it extremely difficult to have sensible and effective discussion of them. I much regret this grouping.
I speak in support particularly of the early amendments in this group in the names of the noble Baroness, Lady Anelay of St Johns, my noble friend Lord Goodhart and myself, particularly Amendments Nos. 2 and 3 which make amendments to Clause 1 and would give the new courts boards more significant power. The proposed arrangements, even as amended by the new set of amendments tabled by the Lord Chancellor, do not give any power to the courts boards.
As the noble Baroness, Lady Anelay, implied, from the Government's point of view our amendments in this group are a good deal milder than the ones which we debated at length late on the night of 28th January. Many noble Lords who are now in the Chamber took part in that extended and important debate. I believe that these amendments deal with the principal objection raised—with which I can concur or at least sympathise—namely, that there needs to be a separation of powers between the executive under the so-called unified system and the courts boards, that requirement being particularly acute vis-à-vis Crown and county courts, which of course are part of the new aegis with magistrates' courts.
As we all know, justices of the peace have in effect run their own courts and made their own decisions in relation thereto for nigh on 1,000 years. So the amendments at the beginning of the group to which I am speaking keep the board non-executive, but give it one specific power—namely that of approving annual local strategic plans which the Lord Chancellor would be required to produce to them as a subset of the annual national strategic plan that the amendment would require him to produce and have approved by each House.
That may sound a major change from what is already in the Bill, but I do not believe that it is. The Lord Chancellor already has the obligation, under Clause 1(4), to produce an annual report after the event, so to speak. However, in his own new amendment to Clause 5, he gives the new courts boards a duty,
"to consider draft and final business plans relating to those courts".
So the Government seem to have conceded that the preparation in advance of plans which need to be considered by courts boards is already an agreed point. Of course we welcome that. However, we go further and say that those annual local plans need to be approved by the local courts boards.
I should say now that Amendment No. 21 in my name—I have to refer to it now because it is in the same group—requires that those draft plans are draft strategy as well as business plans. I put the amendment forward in a probing way in the hope that the Minister can assure me that the phrase already in their amendment, "final business plans", is intended to be construed widely to include matters of strategy in relation to local courts.
So what these early amendments in the group boil down to is that local plans do not come into effect until approved by each courts board. We believe that that will go a considerable way towards amending what we and very many magistrates—indeed, a growing number of magistrates—see as the principal defect of the proposed unified system. If that approval were part of the Bill, we would expect that, in practice, because of the need for it, there will be a much closer and more effective interaction between the boards and their chief executives. Short of giving the boards decisive powers, which we are no longer seeking, this arrangement gives each board a practical, irreducible assurance that their views really will count.
The Minister's repeated powerful and eloquent protestations throughout the consideration of the Bill and in the very many letters that she has written which I have seen—protestations about proper consultation, proper regard for the views of boards and so on—can provide only, as I am sure she must admit, a limited and temporary comfort. Ministers change. Governments get overthrown. Financial and policy priorities change.
It is because we are dealing with the ancient, established, embedded institution of magistrates' courts that we do not believe the present board arrangements of an advisory and recommendatory nature are sufficient.
I am aware that our amendment requiring approval by local boards provides no tie-breaker for potential deadlock between a board and its chief executive. That dilemma is often found in arrangements for boards of directors in private companies and in certain types of contract. I have come across it many times in my professional life, and there are two schools of thought about it. One school, the more conventional, is that there must be a tie-breaker. The other—the one which we prefer in this context—is that the boards, being as they are composed of a much wider group than most magistrates' courts committees currently are, will in effect have to come to a compromise solution with the chief executive. I believe that they will. However, if the Government consider that to be the stumbling block to this amendment—we shall soon hear whether it is—there is time enough for a sensible contrary view with a suggested tie-breaking arrangement to be considered at the next stage.
I should like to say a word about the depth and extent of discontent in the magistracy over these central arrangements, which as I said are not essentially altered by the amendments tabled by the Lord Chancellor. In a nutshell, all the decisive powers of lay justices in running their own courts are being removed. Those powers are, as I said, being replaced by only advisory and recommendatory powers. Therefore, if push comes to shove, and of course it will, the executive agency and its employees will rule the roost in the future. I think that one can reasonably predict that few of the chief officers will have hands-on experience of magistrates' courts, or indeed of any courts. I could give examples of chief administration officers under the present regime who have been appointed to their position without any knowledge or experience whatever of the law or courts. Not merely that but on the new courts boards the magistrates, far from having, as they presently do, a majority, will be entitled only to a single representative. En passant I speak to Amendment No. 25 in the group which stands in my name. A minimum of two on these new boards for magistrates must surely make sense and go a little way towards mitigating their extreme discomfort with, and lack of confidence in, the proposed arrangements.
On 26th April a meeting took place in London attended by 150 people, most of them elected chairs of magistrates' courts Benches, of which there are around 300. So nearly half the chairs of magistrates' Benches attended the meeting. They came from 37 of the 42 magistrates' courts committees. I am sure the House will be interested to know that that extraordinarily—how shall I put it?—responsible, respectable and—
I thank the noble Lord, Lord Renton. I adopt the epithet "representative" and add to it the fact that magistrates are extremely cautious of anything remotely approaching politics. They feel so strongly about what is going on and about the inadequate advocacy of their point of view that they have now formed a national forum which, somewhat late in the day but not too late, will put their views in relation to this and other aspects of the Bill and, indeed, in relation to the many statutory instruments and orders that will follow its enactment.
Whatever the Government may think, there is now a powerful and growing sense that the price to be paid for the new unified service as it stands under the Bill is too high and against the public interest. Whatever the Government may think, there is also a settled conviction that without an amendment such as the one we are discussing—it is fairly minimalist—the morale of lay justices, and hence the retention of justices of the peace and recruitment of quality new ones, will be progressively undermined. There is much anecdotal evidence coming through even at this stage of magistrates throwing in the towel and saying that they are fed up with the bureaucratic demands being placed upon them, let alone the never ending complexities of their role, and also of a failure to attract the very sort of rugged, quality, experienced individuals who make the best magistrates.
It is an irony that we are discussing a measure which will centralise and inevitably bureaucratise the running of the courts in this country at the very same time as the other place is discussing the very reverse process vis-à-vis the NHS. Foundation hospitals are put forward by the Government, in my view broadly correctly, on the basis that the centralised, bureaucratic, managerialist system that prevails within the NHS is simply incapable of delivering the goods, most specifically in terms of its impact on the morale of the staff of the NHS and the doctors. That has never been so low. More and more doctors are retiring at the earliest possible moment. We have a crisis of manpower or womanpower on the wards and elsewhere.
I believe that so much of the thrust of the Bill, especially as regards the inability to see the impact that it is having, and will have, on the morale of the magistracy, is moving in precisely the opposite direction from the insights which underlie the proposals vis-à-vis foundation hospitals. The endless organisational tinkering from on high, which has characterised successive governments' stewardships of the NHS, has yielded less than nothing. As I say, morale is crucial.
It is not even as if there is an assurance in the Bill, or in the later amendments of the Lord Chancellor, that the 42 boards, themselves only brought into being under the Access to Justice Act 1999, will be retained. As the noble Baroness, Lady Anelay, rightly said, this is a minimalist amendment that we believe must be placed in the Bill. The logic of so much of the Government's argument with regard to the reorganisation will lead inexorably, many people believe, to ever greater local justice areas justified on the same assumptions of economies of scale, consistency and increased flexibility which underlie the reasoning put forward for this central and unified structure.
The boundary problems between courts about which the Government have made much play—some of it justified, some of it exaggerated—will always exist so long as there are boundaries. One begins to wonder whether the new managerial regime will not over time press for bigger and bigger and fewer and fewer areas.
Many Bench chairmen have said or written to me to the effect that although the unified service will be easier to control, the quality of what is controlled will perforce decline unless the safeguards contained in the amendments proposed by noble Lords from this side of the House are put in place. It is rather like an underpowered car that may be easier to drive but only because it has less punch under the bonnet.
If one really wants independent justices of the peace of the highest quality, one must expect some turbulence from them, some lack of consistency between one court and another and some awkwardness. But surely we are wise enough in this House to realise that there are times when efficiency and effectiveness—the great mantra of this Government—work in opposite directions. Bureaucratic convenience and managerial control may make the paperwork neater and more consistent—several people have pointed out to me some of the micro-criticisms raised by the noble Baroness, Lady Scotland, in her speech on 28th January—but the long-term basic effectiveness of magistrates' courts as a whole is undermined through loss of independence, loss of a sense of autonomy and the accompanying loss of esteem. As I say, that is not a price worth paying.
I am sorry to have spoken at some length but, as I say, we are dealing with a group containing some 20 amendments. If the Government do not listen to me and noble Lords on these Benches, I hope very much indeed that they will take heed of the very many letters which I understand have been written by a great many highly distinguished lay justices on this very set of issues.
My Lords, I wish to address the general debate on this large group of amendments and also specifically to address Amendment No. 22, on which mine is the lead name.
Lord Justice Auld's report recommended that the administration of the magistrates' courts should be merged with the administration of the other courts in England and Wales and that the staff now employed by the magistrates' courts committees should therefore be merged with the staff of the courts agency. We on these Benches accepted that principle. We acknowledge that it is difficult to justify having a single authority for the management of the county courts, the Crown Court and the High Court for the whole of England and Wales in the form of a courts agency but at the same time retaining 42 separate authorities for the management of the magistrates' courts.
The problem thrown up by this proposed merger was how a single national agency could combine sufficient local input into decisions about the administration of the courts. The Bill as it stands and, indeed, as it has stood ever since it was published, gives what are called the court administration councils powers only to make general recommendations.
In Committee amendments were put down in the joint names of the Conservatives and the Liberal Democrats to turn the court administration councils into corporate bodies which had management powers over the administration of the courts in their areas. It was recognised that that was a holding operation. We recognised that those amendments would in effect have retained most of the powers of the magistrates' courts committees and, indeed, extended them to the other courts, and thereby the objectives of the Bill would have been defeated.
We have therefore come back on Report with a more limited group of amendments. I draw particular attention to Amendment No. 2, which provides for what can be described as codetermination. Under it, the Lord Chancellor must produce both national and local strategic plans for the work of the courts agency nationally and in each area. It suggests that the national plan must be approved by Parliament, and the local plans by what we called area justice boards, which I think will now be called courts boards.
The amendment deliberately created a potential deadlock. In order to get the local strategic plan, the Lord Chancellor and the boards would have to reach an agreement. Along with other reasons, that stimulated a response from the Government, who produced their own amendments to Clauses 4 and 5 and a substantial new schedule before Schedule 1. Those government amendments come some way towards what we and the magistrates wanted to achieve. They strengthen the role of the courts boards in the Bill.
One important feature is that the amendments have proved acceptable to the Magistrates' Association. That is something that we have to take into account as an important consideration. However, the proposals are not acceptable to all members of the Magistrates' Association. In particular, they seem to have caused problems with the chairs of the various benches.
Even if we limit ourselves to the government amendments, we can see that they plainly still need strengthening. As the noble Baroness, Lady Anelay, said, the Magistrates' Association has approved four amendments to the government amendments. The lead name on one of those is hers, that on another is mine, and that of my noble friend Lord Phillips of Sudbury is on the other two. Those are Amendments Nos. 19, 21, 22 and 25.
We certainly support Amendment No. 19, spoken to by the noble Baroness, on the importance of the coterminosity of the areas to be created under the Bill with the existing 42 areas. Most magistrates are anxious that there should not be major interference with the existing boundaries, which have themselves been introduced only fairly recently.
I understand that a merger might be welcome in some areas. Indeed, my noble friend Lord Thomas of Gresford, who is unable to be here, has indicated that there is some pressure for a single courts board to cover the whole of Wales—it is currently split into four areas—and perhaps to include Cheshire as well, to maintain an area based on the old Wales and Chester circuit. Amendment No. 19 is not prescriptive. It would not prevent a merger where that was the wish of the people involved in the area, and we are happy to support it.
My noble friend Lord Phillips explained Amendment No. 21, so I shall turn to Amendment No. 22. The Government's Amendment No. 20 proposes a new Clause 5, the first subsection of which states:
"Each courts board is under a duty, in accordance with guidance under this section . . . to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his general duty in relation to the courts with which the board is concerned, and . . . for the purposes mentioned . . . to consider draft and final business plans relating to those courts".
Subsection (2) then states:
"In discharging his general duty in relation to the courts, the Lord Chancellor must give due consideration to recommendations provided by the boards under subsection (1)".
We believe that that needs strengthening. As an alternative to the original suggestion of deadlock we propose that, if the Lord Chancellor rejects a recommendation as to the final version of a business plan, he must give the board whose recommendations he has rejected written reasons for doing so. I can understand his reluctance to accept the possibility of deadlock, but it is at the very least essential that he give serious consideration to the recommendations of boards about the business plans that affect them.
The need to give reasons concentrates the mind very considerably. The courts agency officer responsible will have to say in writing, "Is this recommendation really unacceptable? If so, why?". He will have to say to himself, "Can I explain the reasons in words that can be understood and accepted by members of the boards?". Ultimately, those reasons would have to stand up to judicial review, so they would have to be serious. I believe that Amendment No. 22 would significantly strengthen the position of the courts boards. Without it, their position is still plainly too weak.
There are two further amendments in the name of my noble friend Lord Phillips. Amendment No. 21 has already been mentioned, but we also strongly support Amendment No. 25. The existing magistrates' courts committees are entirely in the hands of the magistrates. Replacing them with courts boards will require only one magistrate. Of course, the remit of the courts boards is wider than that of the magistrates' courts committees, because it includes the other courts. However, the magistrates' courts are plainly the backbone of our criminal justice system. They deal with the great majority of criminal cases that come to trial in this country.
If there were only one magistrate on the board, he might be ill or have some unavoidable other commitment. There could therefore be a meeting of the courts board at which no magistrate would be present. That would be absolutely wrong. The Bill would say that at least one magistrate must be a member of the board, which does not prevent there being more than one. However, we believe that there should be a guarantee of at least two magistrates.
On these Benches, we are very much in agreement with the line taken by the noble Baroness, Lady Anelay. We hope that the Government will be willing to accept the amendments proposed to their amendments.
My Lords, I want to say straightaway how grateful I am to noble Lords who have spoken, and to single out the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart, for their very constructive contributions to the development of the clauses. As the noble Baroness rightly said, we had a very productive meeting following from Committee, and I am very grateful to all those who participated in it.
The Government have listened carefully to the concerns raised in Committee. As a number of noble Lords have said, we have tabled a very substantial package of amendments, which we hope will satisfy those concerned. I am pleased to acknowledge the satisfaction that the noble Baroness indicated to many of the amendments. I will seek to concentrate on those issues that still cause concern. For the sake of completeness, and to make sure that there is clarity on the issue because all the amendments have been lumped together, I shall take a little time to go through where we are.
These amendments rename the court administration councils as courts boards. I know that the noble Baroness and others have found that old name lacking in felicity. But the change to courts boards is not a mere change of name; it is a much more robust statutory definition of their function. The amendments make clear that the boards will have an ongoing role in relation to the courts in their area—scrutinising local plans and reviewing their implementation, and contributing their own ideas. The amendments guarantee that boards will have that role.
The amendments make provision for much more detail to be provided in secondary legislation, through regulations. Our intention is that those regulations will be subject to the affirmative resolution procedure, so that Parliament has the opportunity to examine the detail of the new organisation.
I turn to Amendment No. 18—the proposed new Clause 4. The new clause clarifies the procedure for setting and altering the courts boards' areas; requires that each courts board will be known by a name specified in an order; and provides that a new schedule, setting out the constitution and procedure of courts boards, is to have effect. Provisions about the membership of the boards which are currently found in Clause 4 are set out in this schedule.
The amendment deals with a concern raised by the noble and learned Lord, Lord Fraser, that boards should have a say in what their boundaries are to be. Before making any order altering the boards' areas, the Lord Chancellor must consult those affected; and the original order which establishes the areas will be subject to affirmative resolution, so that Parliament is able to ensure that the area structure is appropriate.
Amendment No. 19, tabled by the noble Baroness, Lady Anelay, proposes an amendment to the new Clause 4. It would require the Lord Chancellor to,
"have regard to the desirability", of coterminosity with the police areas in specifying the courts boards' boundaries under Clause 4(2).
I understand that there remains a desire to create an express "link" to the criminal justice areas. We do not object to the idea that the Lord Chancellor must bear in mind the structure of other criminal justice agencies in specifying the areas for the courts boards—indeed, as the noble Baroness rightly said, we have already said that the 42 criminal justice areas will be the building blocks of the courts boards' areas. But there are a great many other factors which must also be taken into account—the effective fit with other agencies in the civil and family jurisdictions; the needs and nature of local communities; the volume of workload in each area; and the distribution of court houses.
Participants in discussion groups emphasised the need to take into account the needs of different parts of the country—Wales and London in particular. I am also aware that on the Wales and Chester circuits there is particularly strong feeling because of the historical links between Wales and Chester, and that they may wish to have a joint board. Those are issues that we must take seriously and listen to, because they may affect how matters will be managed.
The implication of this amendment is that the link to the 42 areas is the single most important factor and an end in itself. With the greatest respect, it is not. The single most important factor is that the structure chosen must support the effective and efficient administration of the courts—it must enable us to deliver a better service across England and Wales. That must be the overriding criterion. In order to do so, we must take into account the sensitivities and needs of those in different areas of the country and try, if we can, to give effect to the voices that we are hearing in regard to those issues.
Our amendment provides that the order specifying the areas will be by affirmative resolution, so that Parliament can ensure that the structure selected is appropriate—bearing in mind all the criteria I have mentioned—and so that Members of this House and another place will have an opportunity to have their say.
I gently suggest that the amendment suffers from the same defect as one tabled by the noble Lord, Lord Dixon-Smith, in Committee: it refers to the police areas, implying that the courts boards should share the same boundaries as the police. I know that the noble Baroness's intention is that courts boards should share the same boundaries as most of the criminal justice agencies—that is to say, the 43 police authority areas, but with the Metropolitan and City of London police areas treated as one.
New Clause 5, proposed in government Amendment No. 20, sets out a more robust statutory definition of the role of the courts boards—to,
"scrutinise, review and make recommendations", about the way in which the Lord Chancellor is discharging his duty, and in particular to scrutinise draft and final business plans. This puts into statute what we had set out in a published statement; namely, that the boards will contribute to the development of local strategy and keep the delivery of that strategy under review. So I am happy to confirm to the noble Lord, Lord Phillips, that his analysis of that point is correct.
The amendment makes clearer how guidance issued to the boards will be used: to explain how they should carry out their functions, in particular their role in relation to local business plans. That aspect of the role is fundamental. It enables the boards to influence priorities and the way in which resources—staff, estates and financial resources—are used to deliver services in their area.
The new clause does not include the limitation of courts boards' remit to which the noble and learned Lord, Lord Fraser, objected in Committee. This clarifies our intention that courts boards will have a local focus, but that they should be able to influence the national framework within which they work.
Amendment No. 21, tabled by the noble Lord, Lord Phillips, seeks to amend proposed new Clause 5. It would require courts boards to scrutinise draft and final "strategy" and business plans. As I have said, our intention is that final business plans will set out how resources will be used to run the courts in the area to improve performance and to deliver services which meet local needs—in other words, the strategy for the area. They will include the area's estate strategy; its staffing structures, and its recruitment and retention strategy; spending priorities for the year; and any local projects.
In the light of that clarification, I hope that the noble Lord will feel able not to press his amendment. I note, if I may respectfully say so, a thumbs up from the noble Lord, so I have taken that as his assent.
My Lords, I am grateful to the Minister for giving way and for her remarks. However, all the examples she gave related to financial matters. I was seeking clarification on whether this would include policy issues as well as financial and estate matters—as I thought she was saying.
My Lords, "strategy" will include the broad spectrum. We have no difficulty with the issues that the noble Lord raises as regards local areas.
Amendment No. 22, standing in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, seeks to amend the proposed new Clause 5. It would require the Lord Chancellor to give written reasons to a board if he were to reject its recommendations on a final business plan.
I believe that what the noble Lords want to achieve is to create an additional incentive to encourage the Lord Chancellor to think carefully before rejecting a board's views. I reassure the noble Lord that there is already a very clear incentive in the Bill: one of the reasons for giving the boards a statutory identity was to give them their own "voice"; I do not doubt that they will be quick to object if they feel that their views are being unfairly disregarded.
We intend that boards and chief officers will work in partnership to develop the plans for their area—that requires a certain amount of freedom for each party to contribute and to discuss the plans. At what point would we consider that a recommendation had been "rejected" for the purposes of this amendment? Would that be when a chief officer first rejects it, or when the national chief executive gets involved? Must the Lord Chancellor personally issue the rejection? Or should written reasons be provided at every stage of the process? That sort of relationship does not sound much like a partnership.
We have provided in new subsection (5) that the procedures to be followed in relation to business plans are to be set out in guidance; I would fully expect that to provide that, if the Lord Chancellor were to finalise a business plan without the agreement of the courts board, the board would be entitled to an explanation in writing. Giving written reasons is an appropriate matter for such guidance rather than for the Bill itself. Other matters which the guidance might cover could be the length of time that courts boards should be given to consider draft business plans; the information that boards need; and guidance on when they should take their recommendations to the agency chief executive or even to the Lord Chancellor personally. It could also define a whole range of circumstances in which boards would be entitled to an explanation about what the Lord Chancellor intended to do with their recommendations, and not only their recommendations about business plans. There may be other matters about which they want a written explanation and they should rightfully be entitled to that.
Within that context, it would seem rather odd to single out one aspect of the procedure for inclusion in the Bill and to leave the other aspects to one side. That would be a productive way of responding to that issue. Our intention is to have the draft guidance available when the regulations will be debated so that Members will have the opportunity to scrutinise the whole package.
In light of the assurance that that is one of the matters that would be included in the guidance I hope that the noble Lord will not press the amendment.
I turn to government Amendment No. 24, which contains a new schedule. The amendment creates a power to make regulations about the appointment of members of courts boards; the selection of chairmen; terms of office and provisions about resignation, suspension or removal from office; the procedure of boards; and the validation of proceedings in the event of a vacancy or defect in appointment. I hope that the House will be content that the opportunity for scrutiny of such regulations means that the Lord Chancellor will not have unbridled power to appoint and remove members from the boards on a whim.
The amendment contains a redraft of the categories of membership. It makes it absolutely clear that the numbers set out in the Bill are minima not maxima. It provides that lay justice members must be assigned to a local justice area that is at least partly in the board's area. That point was drawn from an amendment tabled in Committee by the noble Lord, Lord Dixon-Smith, who is in his place. It provides that all board members must be selected from one of the Bill's four categories. The Lord Chancellor would not therefore have discretion to appoint members who do not qualify under those categories.
I turn to Amendment No. 25. The noble Lord, Lord Phillips, proposes a further amendment which would require a minimum of two magistrates. I make no apology for repeating what I said many times in Committee; that is, that the Bill sets out a framework so that there can be variation between local areas. The discussion groups that we have held so far have been unanimous in their agreement that one size does not fit all. It is likely that many of the courts boards will have more than one magistrate among their membership, but we do not believe that that should be prescribed as the minimum.
The courts boards are not intended as a replacement for proper channels of communication and consultation between magistrates and the administration of their courts. That is why we have tabled an amendment to Part 2, which guarantees that those channels will be established. Magistrate members of the courts boards are not intended as "representatives" of local Benches. A minimum of one, along with a minimum of one judge, is therefore appropriate.
I turn to specific issues raised by the noble Baroness and others. The noble Baroness asked whether we would be kind enough to put the legal advice given to her in the Library. Yes, we will do so very willingly. I thought that that advice was already in the Library but I am delighted to confirm that if it is not there, we shall certainly ensure that it is there.
The noble Baroness also asked me to highlight and place on the record some of the features of that letter. I am happy to do so. It is an important principle of administrative law that a public authority to which the function, power or duty has been given by Parliament, cannot delegate that power. Where functions that are entrusted to a Minister of the Crown are performed by officials who are employed in the Minister's department, including any agency that has been constituted within the purview of the department, there is generally in law no delegation because the officials and decisions are constitutionally those of the Minister. That is the Carltona doctrine. Decisions made within departments are susceptible to being challenged by way of an action of judicial review which names the relevant Minister as the defendant.
In amendments dated 31st March 2003, Clause 1 remains in place—I refer to the noble Baroness's approach. The Lord Chancellor has the statutory function and duty of running the courts. The new clause that was proposed but which has now been abandoned provided that he must establish a courts agency that would be responsible for the administration of all the courts. Those two provisions are mutually incompatible. Statute cannot give the same function to two separate bodies. Parliament does not know whether to hold the Lord Chancellor or the courts agency to account. An aggrieved person seeking judicial review does not know whether to challenge the Lord Chancellor or the courts agency for acting unlawfully in the course of the responsibility for running the courts. We have set that out more fully, but that is probably the kernel of what is in the letter.
The noble Baroness and the noble and learned Lord, Lord Mackay, also raised the issue relating to guidance. The guidance would not amend primary legislation. It can only specify supplementary functions, which supplement the five subsection (1) functions. The amendment provides that the guidance will be placed in the Libraries of both Houses. We hear what the noble and learned Lord, Lord Mackay of Clashfern, said about that. The Government are absolutely committed to getting the phrasing of that correct. I am more than willing to look at the way in which it is currently phrased to ensure that the concern that the noble and learned Lord raised is addressed. We say that, although this is a new and unprecedented departure, it is merited in this regard for the reasons that I gave on the previous occasion. In view of the length of time for which I have now been speaking, noble Lords will be relieved to hear that I am not going to repeat all that was said last time.
I have already dealt with the issue in relation to the business plan raised by the noble Lord, Lord Phillips. I may have to deal with a few additional issues raised by him because the noble Lord talked of the tie-breaker and about the boards of directors. Perhaps I may respectfully say that the board and the local chief executive system are very different. Making clear how decisions will be taken and where the buck will stop—to put it colloquially—concerns accountability to Parliament, as I have just sought to indicate.
I also want to lay to rest the concern of the noble Lord, Lord Phillips, in relation to senior court managers and who will get the post of chief officer. We have a cadre of very good people working within the service. I would go so far as to say that there are extremely good staff in the Court Service and in magistrates' courts. I am sure that they will have an excellent chance of putting themselves forward for such appointments. I do not believe that the noble Lord need be concerned that the talent will not be there from which to make a good choice.
The noble Lord, Lord Phillips, also raised the issue about fewer and fewer areas. I was not clear whether that was about the courts boards areas or the local justices areas. If it is the first, I do not know whether he is saying that we should not necessarily follow any changes in the police areas. I have tried to explain that we believe that there are other factors that need to be taken into account and that we would seek to reflect them.
I have already dealt with the issue of coterminosity, but if the noble Baroness feels that further assistance on that point is necessary at this stage I shall be happy to say more. Unless she indicates that that is necessary I shall move on.
The magistrates' views were raised by the noble Lord, Lord Phillips. Effectiveness and efficiency of the courts and the way in which they work are matters of real importance to those who appear before them. To have access to justice assured and delivered in a way that creates equality across the country is a matter of great importance. We believe that what we have done assures that.
I was disappointed that the noble Lord felt that magistrates were throwing in their hands. We have done a great deal to ensure that their proper concerns were addressed. As I have said on a number of occasions before, particularly in Committee, the basis upon which those on all Benches have taken this matter forward has been very similar. We wish to achieve the same end. We have been struggling with the best way to achieve that. We have been able to do a huge amount of good work together to ensure that that has been achieved.
I believe that I have now dealt with all the issues that have been raised, including those raised by the noble Lord, Lord Goodhart. If I have not addressed some issues I shall be more than happy to deal with them.
My Lords, perhaps the Minister will clarify a matter in relation to Amendment No. 24, a government amendment that deals with the constitution and procedure of courts boards. In relation to the composition, paragraph 2 makes it clear that one member should be a judge, one a lay justice and then we find that two members should have,
"appropriate knowledge or experience of the work of the courts", and two more members should be,
"representative of people living in that area".
I find sub-paragraph (c) puzzling. Are those with,
"appropriate knowledge or experience of the work of the courts", the officials of the courts or the local police? Whom have the Government in mind?
My Lords, for the membership of the courts boards we intend to have as wide a representation of the local area as possible. We have not prescribed that they could not be someone in the employ of the authority, but the intention is that they would be independent people who would be able to give an additional flavour. Guidance will be given. I shall certainly see what further clarification I can give on that issue. The whole idea of making them inclusive is to include those who may be involved in the area but who may not be directly involved in the courts, so that a different dimension is brought in.
My Lords, I am grateful to all noble Lords who have spoken in the debate. It may have taken just over an hour but I believe that it is an hour that has been valuably used. I am particularly grateful to the Minister for the care and attention that she has paid to the amendments to government amendments and generally to the arguments put by noble Lords. I particularly thank my noble friend Lord Renton for his late intervention and for eliciting further explanation about membership of courts boards. I am grateful to the Minister for saying that she will consider this matter and perhaps send more information to noble Lords. Further clarification for Third Reading may benefit all.
I am also grateful to my noble and learned friend Lord Mackay of Clashfern for raising his concerns on Clause 5. I am grateful to the Minister for saying that she will look at that again. I shall consult with my noble and learned friend as to what he may wish to do by way of clarification at Third Reading.
It would not be right for me to draw any conclusions on behalf of the noble Lords, Lord Phillips of Sudbury and Lord Goodhart, both of whom are well able, as experienced lawyers and advocates, to put their own case. Suffice it to say that I agree 100 per cent with every one of the arguments that they adduced.
On Amendment No. 19, the Minister did her best to shoot my fox. At the moment I see it as wounded, but I am on the side of the fox and I shall take it to the vets between now and Third Reading. I believe that it is vital to consider the size of courts boards because only within that will we guarantee the local delivery of justice. As I have made it clear that I shall take further action for clarification and I shall possibly press the matter at Third Reading, I shall not go into detail now. I take note of all the arguments put by the noble Baroness, but I undertake, twixt now and 19th May when, currently, we are told that Third Reading will take place, to consult both the Magistrates' Association and the Central Council of Magistrates' Courts Committees. At this stage I beg leave to withdraw Amendment No. 2.
moved Amendment No. 4:
Page 2, line 9, leave out subsections (2) and (3) and insert—
"(2) The civil service pension arrangements for the time being in force apply (with any necessary adaptations) to persons appointed under subsection (1) as they apply to other persons employed in the civil service of the State.
(3) "The civil service pension arrangements" means—
(a) the principal civil service pension scheme (within the meaning of section 2 of the Superannuation Act 1972 (c. 11)), and
(b) any other superannuation benefits for which provision is made under or by virtue of section 1 of the 1972 Act for or in respect of persons in employment in the civil service of the State."
My Lords, this amendment is in a separate group. We have reviewed the provisions in Clause 2 and bring forward this amendment to clarify the Civil Service pension arrangements on the face of the Bill. This matter was raised at an earlier stage. The effect of the amendment is to clarify that those eligible employees who transfer to the new agency from magistrates' courts committees or local authorities and become civil servants will be eligible for membership of the Principal Civil Service Pension Scheme (PCSPS) and any "other superannuation benefits", which includes the partnership pension account. The current draft of the Bill makes reference only to the PCSPS. However, since October 2002, some employees—those excluded from, or who have opted out of that scheme, have been offered participation in a partnership pension account. Although in Committee we clarified that eligible staff will become civil servants and of course will be eligible for membership of the scheme, we thought that it was preferable to state the Civil Service pension arrangements on the face of the Bill. I hope that clarification puts minds at rest. I beg to move.
moved Amendment No. 5:
Page 2, line 14, leave out subsections (4) and (5) and insert—
"(4) Subject to subsections (5) and (6), the Lord Chancellor may enter into such contracts with other persons for the provision, by them or their sub-contractors, of officers, staff or services as appear to him appropriate for the purpose of discharging his general duty in relation to the courts.
(5) The Lord Chancellor may not enter into contracts for the provision of officers and staff to discharge functions which involve making judicial decisions or exercising any judicial discretion.
(6) The Lord Chancellor may not enter into contracts for the provision of officers and staff to carry out the administrative work of the courts unless an order made by the Lord Chancellor authorises him to do so.
(7) Before making an order under subsection (6) the Lord Chancellor must consult—
(a) the Lord Chief Justice,
(b) the Master of the Rolls,
(c) the President of the Family Division, and
(d) the Vice-Chancellor, as to what effect (if any) the order might have on the proper and efficient administration of justice.
(8) An order under subsection (6) may authorise the Lord Chancellor to enter into contracts for the provision of officers or staff to discharge functions—
(a) wholly or to the extent specified in the order,
(b) generally or in cases or areas specified in the order, and
(c) unconditionally or subject to the fulfilment of conditions specified in the order."
My Lords, this amendment relates to issues raised about Clause 2(4) in this House and by the unions. In Committee, we gave an undertaking to reconsider and discuss the matter further with the unions. We have done so. I hope that the unions are content but also the noble Lords, Lord Goodhart and Lord Thomas of Gresford, who have tabled amendments today.
The effect of Amendment No. 5 is to recreate the current requirement in Section 27 of the Courts Act 1971 to provide that contracting out under Clause 2 in respect of staff carrying out the administrative work of the courts should be after the making of an enabling order and—importantly—subject to prior consultation with the senior judiciary.
In Committee, noble Lords raised concerns about Clause 2(4), particularly with regard to the fact that we had not included a requirement for my noble and learned friend the Lord Chancellor to obtain an order and to consult the four senior judges before contracting out administrative functions. We have therefore decided to bring forward an amendment that will require contracting out in respect of administrative staff functions to be in accordance with an enabling order and, again, subject to prior consultation with members of the senior judiciary.
I want to put it on the record that we are most grateful to your Lordships' House and to the unions for drawing this matter to our attention. I hope that this amendment satisfies and addresses the concerns raised. Amendments to Clauses 22, 32, 46 and 56 are consequential to the amendment to Clause 2. So I trust that noble Lords will not wish to press their amendments. I beg to move.
My Lords, Amendment No. 6 in this group stands in my name and that of my noble friend Lord Thomas of Gresford. It is virtually identical to part of the new amendment introduced by the Government. Therefore, I obviously welcome what the Government have done and I shall not be moving my amendment. I also understand from correspondence that the unions involved in this are content with the new arrangements that have been made. So I am happy to support all the amendments in the group.
My Lords, I welcome the government amendments. As a result of seeing those, I withdrew my amendment to Schedule 1, which went rather broader than the government amendments. However, it was intended only as a device to try to stimulate debate. The Government not only have the debate but the amendment. I support them.
moved Amendment No. 18:
Leave out Clause 4 and insert the following new Clause—
"ESTABLISHMENT OF COURTS BOARDS
(1) England and Wales is to be divided into areas for each of which there is to be a courts board.
(2) The areas are to be those specified by an order made by the Lord Chancellor.
(3) Each area established by an order under subsection (2) is to be known by such name as is specified in the order (but subject to subsection (4)).
(4) The Lord Chancellor may make orders altering the areas.
(5) "Altering", in relation to an area, includes (as well as changing its boundaries)—
(a) combining it with one or more other areas,
(b) dividing it between two or more other areas, and
(c) changing its name.
(6) Before making an order under subsection (4), the Lord Chancellor must consult any courts board affected by the proposed order.
(7) Schedule (Constitution and procedure of courts boards) contains provisions about the constitution and procedure of courts boards."
On Question, amendment agreed to.
[Amendment No. 19, as an amendment to Amendment No. 18, not moved.]
Clause 5 [Role of court administration councils]:
moved Amendment No. 20:
Leave out Clause 5 and insert the following new Clause—
"FUNCTIONS OF COURTS BOARDS
(1) Each courts board is under a duty, in accordance with guidance under this section—
(a) to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his general duty in relation to the courts with which the board is concerned, and
(b) for the purposes mentioned in paragraph (a), to consider draft and final business plans relating to those courts.
(2) In discharging his general duty in relation to the courts, the Lord Chancellor must give due consideration to recommendations provided by the boards under subsection (1).
(3) The courts with which a courts board is concerned are—
(a) the Crown Court,
(b) county courts, and
(c) magistrates' courts, in the board's area.
(4) The Lord Chancellor must prepare and issue the boards with guidance about how they should carry out their functions under subsection (1).
(5) The guidance may in particular contain provisions—
(a) about the procedures to be followed in connection with draft and final business plans;
(b) conferring on the boards functions supplementing their functions under subsection (1).
(6) The Lord Chancellor may from time to time issue the boards with revised guidance and revoke previous guidance.
(7) Guidance issued under this section must be laid before both Houses of Parliament."
On Question, amendment agreed to.
[Amendment No. 21, as an amendment to Amendment No. 20, not moved.]
My Lords, this is an important amendment. The noble Baroness, Lady Scotland, gave reasons for rejecting it. I was not convinced by them. There would not be any practical difficulty in deciding which the relevant recommendations were because I believe that it will be obvious. The final business plan will be put forward as a final draft and submitted to the Lord Chancellor for approval. In those circumstances, I shall not repeat what I said earlier, but I wish to test the opinion of the House.
My Lords, I beg to move Amendment No. 23. It was tabled after consultation with the Magistrates' Association. Its objective is to provide a method by which there is guaranteed consultation of magistrates by the Lord Chancellor on any matters relating to the duties of a justice. I very much welcome the Government's amendment. I know that they took care over the past two or three weeks to reach a form of drafting that would be more suitable than mine.
I hope that noble Lords will excuse me if I point out briefly that the reasons for the Magistrates' Association wanting to include the provision on the face of the Bill was that it felt that Benches need to be consulted and informed about how the courts are organised. It is a matter of general good working relationships between the new courts agency and all levels of the judiciary, paid and unpaid, in a particular area. It pointed out that it is not enough for local administrators and court staff to be the only ones in the loop. It believes that, once that is recognised, the unified administration must work with magistrates to enable them to work efficiently at local level.
I am grateful to the Government for tabling their amendment. I thought that it was not appropriate at such a late stage to withdraw mine, as it would not have been possible to produce reprints of the Marshalled List. Although I beg to move, I look forward to withdrawing the amendment.
My Lords, I am very grateful to the noble Baronesses, Lady Anelay and Lady Seccombe, for their amendment, whose aim I entirely support and agree with. The partnership between judges, magistrates and the agency is fundamental to the work of the courts; therefore, good communication at all levels is essential. However, the noble Baronesses' amendment places an unqualified obligation on the Lord Chancellor to consult magistrates. Such a broad remit would have left the noble and learned Lord open to judicial review for, for example, not consulting every individual magistrate. Our amendment offers magistrates a guarantee that they will be kept informed of matters affecting them, and they will be given the opportunity to give their views.
I am particularly grateful to the Magistrates' Association for its constructive discussion of the matter and its support for the amendment. In due course, I shall beg to move Amendment No. 50.