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I beg to move amendment No. 115, in
clause 5, page 4, line 3, after 'concerned,', insert—
'( ) in particular, to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his duty under section 21 in relation to the courts with which the board is concerned,'.
With this it will be convenient to discuss the following:
Amendment No. 112, in
clause 5, page 4, line 3, leave out 'and'.
Amendment No. 113, in
clause 5, page 4, line 5, at end insert
Amendment No. 114, in
clause 5, page 4, line 20, at end insert—
'( ) The Lord Chancellor must prepare and issue to the boards guidance about how they should carry out any function prescribed by order under subsection (1)(c).'.
The amendment would beef up the functions of the courts boards just a little bit. There has rightly been a considerable amount of discussion, both in another place and outside, about what exactly would be the functions of the courts boards and to what degree they would have any management functions or whether they are merely sounding boards with little consequence in affecting the Lord Chancellor's decisions. The amendment would seek to make it an explicit function of the courts boards to consider how the Lord Chancellor exercises his functions under clause 21.
Clause 21—''Duty to consult lay justices on matters affecting them etc.''—says:
''The Lord Chancellor must take all reasonable and practicable steps . . . for ensuring that lay justices acting in a local justice area are kept informed of matters affecting them in the performance of their duties, and . . . for ascertaining their views on such matters.''
That is a kind of lock—a lock on the Lord Chancellor—to ensure that the courts boards have a handle on whether the systems, which the Minister is
putting in place under the Bill, will have the desired effect. That is a sensible proposal. If the courts boards had the duty of oversight, they could take soundings from the local justice areas in their purview and talk to local magistrates and people who use the courts. If it seemed as though it was all going pear-shaped or that the Government were not behaving as the Minister or hon. Members hoped, there would be, in executing their duties under the Bill, an explicit mechanism for the courts boards to make recommendations to the Lord Chancellor. Incidentally, that would also be for the benefit of Members of Parliament and others who may be able to apply pressure on the Lord Chancellor regarding how he exercised such duties. Amendment No. 115 is a fail-safe mechanism that would lock together the various bits of the Bill and give the courts boards an effective function.
Three other amendments in the group hang together. No. 112 is simply a drafting amendment. No. 113, however, is the operative one, which would allow the Lord Chancellor, through a properly debated order in the House, to extend the functions of the courts boards. Those bodies are too valuable for them not to be used. Debates in another place have established more precision about what the courts boards would do, but the Bill is still light on the functions that they may perform. I want to provide a clear mechanism through which the Lord Chancellor could consult and listen to people once the boards are operating and extend the functions to include management functions, making that explicit by order. Although the courts boards are not executive bodies, they should have a managerial role in the operation of the local courts. If that is to happen, the Lord Chancellor must give guidance, which is the purpose of amendment No. 114.
No, I do not. The bodies can perform only the functions that are ascribed to them by law. I do not want specifically to set out every dot and comma of what the courts boards should do, but they have a vague function under the Bill. Most of the magistrates who have taken an interest in the measure feel that the courts boards would be better bodies were they to have better prescribed functions and duties within the system. I am trying to make provision for that.
The hon. Gentleman is worried that the Lord Chancellor might use the powers to over-prescribe, but that is always a possibility when a power is given to a Secretary of State under secondary legislation. We have the safeguard, however, of proper parliamentary scrutiny, rather than perfunctory scrutiny. I must assume, therefore, that the Secretary of State, in exercising those functions, and Parliament, in scrutinising them, will make a proper job of it. The risk is that they would not. I accept the hon. Gentleman's point that we cannot legislate for the over-prescriptive qualities of future Secretaries of State or the under-performance of future Parliaments, but that is inherent in our system.
The hon. Gentleman and I have sat in Committee on many occasions when the measures that he proposed were criticised by Opposition Members for leaving powers open for prescription and arguing for descriptions of certain functions under the Bill. Why is he not arguing for that now? What does he have in mind for the functions?
It is a fair criticism. We have often said that, when possible, matters should be covered by primary legislation. I still hold that view. However, the bodies under discussion are new. Their function is not yet prescribed clearly as an initial function, even by the Lord Chancellor. For me to add functions by definition to the Bill when I do not know what the Secretary of State or the Lord Chancellor already has in mind for the bodies would be premature. When the bodies are up and running, they will evolve and seek functions and powers for which there is not provision within the arrangements. It would be wrong to prejudge them.
I am not an expert in such matters, but I understand the arguments that have been advanced forcibly by those who currently run the magistrates courts committees. They consider that, as of yet, such matters are insufficiently defined and that more exploration needs to take place to find out what the bodies could usefully do to improve the system. Were I giving powers to the Secretary of State, I would be worried, but the powers will go through the Secretary of State to the courts boards. I have more confidence in them.
I hope that I have made myself plain. I have two things in mind. First, the intention of amendment No. 115 is to lock together the courts boards and the local justice areas so that feedback ensures that what everyone wants happens. Secondly, we must allow for a growth in the functionality of the courts boards, so that they can undertake tasks to which I think they will aspire to, but which are not specified in the Bill. Taken together, that will build on what the Minister is proposing for the courts boards and what has been helpfully improved by the debates in another place.
I can be brief in responding to the amendments tabled by the Liberal Democrats. I have more sympathy with amendment No. 115, which would add a specific scrutiny power for the boards to look at how the Lord Chancellor would be discharging his duties under clause 21, than I do with amendments Nos. 112, 113 and 114. I am always a little chary of plans to encourage a new bureaucratic body to do more, but I understand the spirit of what the hon. Member for Somerton and Frome is suggesting. I am sure that he is right that the courts boards will aspire to do more. Whether that is entirely a good thing or something that we should be encouraging in the Bill under his further three amendments I am not sure, but I shall listen with interest to what the Minister has to say about that.
I can see a big advantage in amendment No. 115 because, as the hon. Gentleman says, it would be a helpful addition in the spirit of what was discussed in another place. It would add to clause 5(1)(a) a further scrutiny power for the boards in respect of the Lord Chancellor. I am content to support the amendment,
but I am agnostic about the other three. I shall wait to hear the Minister's response to the case made by the hon. Member for Somerton and Frome.
I want to remind the Committee that it is a surreal exercise to be discussing powers that will be given to and exercised by someone holding a post that the Government intend to abolish. That is true of almost every clause in the Bill. We do not want to continue such a debate throughout our proceedings, but it is pertinent to ask: can the Minister shed light on whether some of the powers might be exercised by a Secretary of State for Constitutional Affairs or a Secretary of State in another Department?
I would not be happy if many of the powers that have been traditionally associated with the Lord Chancellor were in 18 months' or three years' time suddenly transferred overnight in the Government's planning to the Home Secretary, for example. That is a worry. I have been talking to my hon. Friends about the matter and we were wondering whether some powers might be better exercised by senior members of the judiciary, rather than a Lord Chancellor who is not really a Lord Chancellor or may not be a Lord Chancellor in 18 months' or three years' time.
I want to get a flavour of the Government's thinking on the matter, because I do not understand what the role of the Lord Chancellor will be when the reforms are put through. If we get rid of the office of Lord Chancellor, will the appointments to the boards be classified as a judicial appointment or will they be something that falls to the Secretary of State for Constitutional Affairs? I should be interested to know the Minister's views.
Who will be the head of the judiciary under the proposed reforms? Will it be the Lord Chief Justice or a senior Law Lord? Who is it envisaged will be the head of the judiciary? What will be his powers and responsibilities for the judiciary?
It is interesting how at the end of the discussion on the narrow but important issues raised by the hon. Member for Somerton and Frome, we have broken out into a discussion that I expected
would happen sooner or later about how clauses or amendments can include the phrase ''the Lord Chancellor'' when the Government intend to abolish that post. The post exists for the time being. We have not brought forward legislation as yet to change very many statutory references to the role of the Lord Chancellor. All that will come in due course.
We envisage that these references in a number of Acts of Parliament will eventually transfer to the Secretary of State for Constitutional Affairs. Indeed, the hon. Member for Henley (Mr. Johnson) asked about the post of head of the judiciary. That is not particularly relevant to these amendments. As I understand it, there is no such role as head of the judiciary and president of the Supreme Court as currently understood. These are probably discussions to be held at another time.
Much as I would love to expand on all these matters, there is no technical post of head of the judiciary in our constitution. I suspect that I would be ruled out of order if I continued in that vein. I am sure that we will have a further discussion about these issues in other forums.
My hon. Friend might have noticed that this morning the Annunciators in the other place—we must bear in mind the fact that the Opposition have a majority there—showed that the Lord Chairman, rather than the Lord Chancellor, was having a procession. This is all semantics. We are dealing with the person who does the job of the Lord Chancellor, as would be the case in many other pieces of legislation when named individuals pass on their responsibilities to others. We are dealing with the legislation in terms of the facts as they are now.
While changes are under consideration, it would not be right for me to interpret how the Annuciators in the other place describe the person undertaking a particular procession. Nevertheless, we still have a Lord Chancellor.
Amendments Nos. 112 and 115 together would require courts boards to scrutinise, review and make recommendations on the way in which clause 21 is exercised. Clause 21 is about the duty to consult magistrates. It was added to the Bill by Government amendment in another place. It guarantees that proper lines of communication will be established between magistrates and the courts administration about matters that affect them in the performance of their judicial duties. Although the Lord Chancellor's general duty includes the need to build effective lines of communication with all stakeholders, we added clause 21 because we recognised that, unlike the professional judiciary, magistrates do not have day-to-day contact with the courts, and statutory reassurance was therefore appropriate.
Clause 21 was developed in discussion with the Magistrates Association, and I am pleased that it welcomed the amendment. We intend to set out the key issues and the guiding principles for how this should work in practice in the agency's framework
document. The Court Service's existing framework document prescribes issues on which the professional judiciary must be consulted. That arrangement works well. The additional statutory backing given by Clause 21 to communication with magistrates gives them further reassurance.
That said, and given the extent and importance of clause 21, we feel that amendments Nos. 112 and 115 are not necessary. The courts boards will be expected to scrutinise, review and make recommendations on the way in which the Lord Chancellor is discharging his general duty. One of the necessary elements of that is to scrutinise the way in which consultations and communications are undertaken with all interested parties in the administration of the courts, including lay magistrates. The amendment therefore seems slightly superfluous; it gives courts boards a special remit to scrutinise the way in which the new agency communicates just with magistrates.
Although that is an important element of the work of the new administration, it does not merit such singling out of magistrates in particular. The function of the courts boards is to make recommendations that will make the courts' functions more effective in the interests of all court users in the local community in general, not just to ensure that the administration of the courts meets the needs of the magistracy. What about witnesses' interests, victims' interests and so forth? In many ways those are as important, so to include the proposals in the Bill would be slightly strange.
I would like to remind the Committee that the unified administration is about much more than the magistrates courts. Although I am repeating what I said before, the fact that the administration will also cover the work of the Crown court and the county court, as well as of the magistrates, the civil and family jurisdictions and the criminal jurisdictions, merits drumming home. The work of the civil and family jurisdictions is significant, in terms both of workload and of the issues at stake, and the new administration must support the needs of users of those courts equally.
Amendments Nos. 113 and 114 are slightly different and would provide that the Lord Chancellor may prescribe additional functions for the courts boards by statutory instruments subject to affirmative resolution. It would further be provided that the Lord Chancellor must prepare and issue guidance to the boards about how they should carry out any supplementary functions.
There was a great deal of debate in another place about the clause, which the Government added to the Bill through an amendment on Report. At that time, it provided that the guidance could be used to confer supplementary functions on the courts boards. Lord MacKay of Clashfern and Baroness Anelay in particular expressed concerns about the relevant subsection, which they thought gave the Lord Chancellor too much power to act through guidance, which reflects some of the instinctive comments that the hon. Member for Surrey Heath made earlier.
At the time, the Government withdrew the relevant subsection in response to those concerns. However, we are now in Committee in the Commons, with the amendment and the idea from the hon. Member for Somerton and Frome. We are prepared the consider the notion in the amendment a little further, although like my hon. Friend the Member for Wirral, West I have an instinctive scepticism about some of the issues and think that we must look with caution at whether to extend certain powers, and ask whether they are necessary.
The powers set out in the Bill at present are the right ones, and they resulted from a great deal of general debate and discussion about the formation of courts boards, not just the debates in another place. Although I invite the hon. Member for Somerton and Frome not to press amendments Nos. 113 and 114 now, I assure him that the question of what supplementary functions we might think about has come up before in consideration of the Bill. I assure the Committee that I shall think about the matter in much greater depth before Report.
I thank the Minister for the way in which he responded to the amendment. I understand what he says about singling out the magistrates, but I instinctively feel that if the new system will leave anyone hard done by, it will be the magistrates courts rather than the High Court or the Supreme Court—they might have more friends in better places to protect their interests. That is why I am going out of my way where possible to protect the interests of the local magistrates courts.
The Minister knows perfectly well the position of most magistrates on the question of whether the courts boards should have an increased range of powers. They have argued cogently for executive powers to be given to courts boards, but the Government are not prepared to accept that. Even within the scope of what is laid out, they feel that an enhanced role for courts boards would be to their advantage and to the advantage of the administration of justice. The Magistrates Association has commented to the same effect, as have individual magistrates courts committees. I have a letter from the Norfolk magistrates courts committee, which was passed on to me by my hon. Friend the Member for North Norfolk (Norman Lamb), and it explicitly states that the committee wants courts boards to have a stronger role.
Earlier, the Minister prayed in aid his consultation exercise, which included regional discussion groups. Again, it was clear during that exercise that there was much concern about the vague role of courts boards. There was a feeling that they needed to be better defined. Paragraph 13.1 of it states:
''Some participants found it hard to understand what role the Boards would play. They thought it difficult to discuss roles and responsibilities until the scope of the Boards was more clearly defined.''
Through discussions, a consensus was formed on what should fall under the scope of the boards. It was thought that there should be a focus on service delivery and performance, and on looking at outcomes. Boards should be involved in the
development and review of the strategic plan, and provide a link with the local community, including drawing local views to the attention of the chief officer. They should relate local need to available resources and consult local communities. They should be hands off and non-managerial, but also challenging and influencing. They should liaise with and provide support to the chief officer, and act as a buffer between national instruction and local issues. Finally, it was thought that boards should ensure that resources were allocated appropriately between civil, family and criminal work.
I cannot say that that view from the Minister's own discussion groups is reflected in the powers under clause 5. The Government need to think about this further. As the courts boards evolve, there will be a need to confer greater powers and scope to allow them to do their work. However, on the basis of what the Minister has said today and the fact that he clearly intends to continue thinking about this matter, I am content to withdraw my amendment. We do not have that long to go before the end of our consideration of the Bill, so we need greater clarity of the courts boards' role. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to discuss the following:
Amendment No. 14, in
'(such directions to have been laid before both Houses of Parliament and approved by affirmative resolutions)'.
Amendment No. 78, in
clause 72, page 34, line 5, leave out from 'Rules' to third 'of' and insert
'shall not be made unless a draft of the instrument has been laid before and approved by resolution of both Houses'.
Amendment No. 85, in
clause 79, page 37, line 26, leave out from 'Rules' to third 'of' and insert
'shall not be made unless a draft of the instrument has been laid before and approved by a resolution of both Houses'.
Amendment No. 86, in
clause 80, page 37, line 35, at end insert—
'( ) No order which amends or repeals any enactment may be made under this section unless a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament.'.
Amendment No. 88, in
clause 84, page 39, line 17, leave out from 'order' to 'House' in line 18 and insert
'shall not be made unless a draft of it has been laid before, and approved by a resolution of, each'.
Amendment No. 92, in
clause 85, page 39, line 40, leave out from 'Rules' to 'of' in line 41 and insert
'shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of both Houses'.
Amendment No. 103, in
clause 107, page 59, line 2, at end insert—
'( ) An order under subsection (3) shall not be made until a draft has been laid before both Houses of Parliament and approved by a resolution of each House.'.
I can be brief in speaking to this group of amendments, because although it is large its contents are all to the same effect. We want to provide parliamentary scrutiny in a range of areas in the Bill. Amendment No. 10 relates to clause 5, and amendment No. 14 would add the provision for scrutiny of clause 11 by affirmative resolution. Amendment No. 78 would do the same thing for clause 72, amendment No. 85 for clause 79, amendment No. 86 for clause 80, amendment No. 88 for clause 84, amendment No. 92 for clause 85, and amendment No. 103 for clause 107.
The Minister will be familiar with the concerns that we often express from the Opposition Benches about the need for greater parliamentary scrutiny. That applies to this kind of legislation, not least because of the concerns that I raised, which were further enlarged upon by my hon. Friends the Members for Henley and for Wycombe in the previous debate. We are talking about a completely new legislative arrangement. The Government are implementing a number of the suggestions that came out of Lord Justice Auld's report, and in the many different areas of the Bill—I shall not go through them all now—we need to be certain that parliamentary scrutiny exists so that the legislation can be kept under review.
It is not satisfactory for such a major new change to a system, which has been working well since 1949 for the most part, and for much longer in some cases, to simply go through on the nod, without proper parliamentary scrutiny. There will not be the opportunity for us to raise concerns on behalf of our constituents and lay magistrates throughout the country.
All the various parts of the Bill must contain the opportunity for any further changes made to order-making powers to come before Parliament. Our job here is to keep an eye on things. It will not be good enough if powers created by the Bill lead to future orders going through on the nod.
I hope that the Minister will understand that we are not trying to throw a spanner in the works. We simply want to ensure that we, the constituency MPs, whether we are on the Front or the Back Benches, may check how things will work in future and how orders that derive from the proposed legislation will affect the courts in our constituencies.
Although I do not expect the Minister to accept all the amendments today, I hope that he will understand the spirit that drives them and that he will consider whether to adopt some of them on Report. It would be helpful if the provision for parliamentary scrutiny that I feel is necessary were clearly written in the Bill.
My comments run to several paragraphs—which will, I am afraid, be something of a contrast to the brief comment by the hon. Member for Somerton and Frome. However, I feel duty bound to respond to some of the amendments, which are grouped together because of their general effect, and to the question of whether parliamentary scrutiny should be undertaken by affirmative or negative resolution.
Under amendment No. 10 the guidance for courts boards in clause 5 could not come into force without an affirmative resolution in Parliament. The Bill was improved as a result of the thorough debate in another place about the guidance to the courts boards.
The Bill originally provided only for guidance, but the Government tabled amendments that would allow for regulations, subject to the affirmative resolution procedure, if those were appropriate. The provisions on the constitution and procedure of courts boards are to be found in schedule 1. Nevertheless, there remains a need to provide guidance on matters that are not suitable for regulations. We have included provisions for guidance in the Bill to ensure that there is appropriate parliamentary scrutiny and that things must be laid before both Houses. In addition, we gave an assurance that the draft guidance would be available at the same time as the debate on regulations relating to the courts boards. That would ensure an appropriate level of parliamentary scrutiny for detailed arrangements, once they had been properly developed in partnership with stakeholders.
Does my hon. Friend think that one of the worries of the hon. Member for Surrey Heath is whether the annual report to be made by the Lord Chancellor under clause 1(4), within 18 months of the courts boards coming into operation, would cover some of the general concerns about what progress was being made? That would answer the general concerns, rather than the specific concerns in each amendment, or other things as time goes by.
My hon. Friend makes an important point. Although I have not been involved in drafting the Bill—I am only 10 or 11 days into my role with this portfolio—I am struck by the fact that it bends over backwards to ensure that there is full accountability and parliamentary scrutiny in various ways, including the annual report provisions. The drafting has been generous in terms of striking the right balance between the flexibility of the Executive to conduct business with efficiency and due speed, and the need for proper scrutiny, discussions and consideration of the views expressed in Parliament. Many of those points are the same as those that my hon. Friend made.
Bearing in mind the pressure that the House is under about when to use affirmative resolutions, is it not particularly inappropriate for the Opposition to ask for them here, given that what the guidance relates to is on the face of the Bill? Did we not just hear in the last debate that a wider power of giving guidance was narrowed because of the Opposition's objections?
I am sorry to blow the whistle on this
parliamentary tactic, but in my long years of experience in Parliament I have realised that Oppositions feel it their duty to table amendments to press for more affirmative resolutions and for powers to be introduced only by positive order. Governments have traditionally tended to resist that, because of the need for the expeditious execution of business. I feel that in this case my hon. Friend is right to suggest that to subject guidance, which is not in legislation, to such close parliamentary scrutiny is a little over the top. Guidance should not be subject to affirmative approval from Parliament in that way, not least because it needs to be a living document. It needs to be something that can be amended in the light of experience and changed priorities. The affirmative resolution procedure makes it difficult to make changes as circumstances evolve.
Amendment No. 14 seeks to open up to parliamentary debate and approval the competence framework established for lay justices. In our view it is entirely inappropriate for Parliament to involve itself in debating matters affecting the competences of independent judicial office holders, particularly when effective mechanisms are already in place to ensure that the competence framework is appropriate, robust and workable.
Moreover, the framework providing for the Lord Chancellor's removal of a magistrate if he is not playing a proper part in the exercise of his duties has been developed over time through consultation with the relevant organisations. They include the Magistrates Association, the Justices' Clerks Society, the Association of Justices' Chief Executives, the Central Council of Magistrates' Courts Committees and others. It is overseen by the Judicial Studies Board's magisterial committee and approved by the Secretary of State in his capacity as Lord Chancellor.
Amendments Nos. 78, 85 and 92 relate to rule making, which we will undoubtedly discuss later as we proceed through the Bill. They would subject all rules of court, whether allowed or altered by the Lord Chancellor, to the affirmative resolution procedure. If they were accepted, unnecessary delay would be introduced into the process of making rules of court, be it for the criminal, family or civil jurisdiction—with consequences for the provision of justice.
Historically, rules of courts made by specialist committees have been subject to the negative rather than the affirmative resolution procedure. That has worked perfectly well. To change it would unnecessarily increase the amount of work before both Houses of Parliament. One of the most overwhelming arguments is that the House of Lords Delegated Powers and Regulatory Reform Committee has approved the negative resolution procedure as the appropriate level of Parliamentary scrutiny for the making of rules of court.
I am aware that amendments similar to these were tabled in the other place as a result of concerns about the Lord Chancellor's power to alter rules. Those amendments were withdrawn when the Government tabled amendments subjecting altered rules to the affirmative resolution procedure. This is a higher level
of parliamentary scrutiny than for those rules that are simply allowed by the Lord Chancellor. I hope that these amendments, too, will be withdrawn now that I have made it clear that altered rules will be dealt with by the affirmative process.
Finally, I should like to add a couple of comments about amendments Nos. 86 and 103. Amendment No. 86 proposes that all secondary legislation introduced under Clause 80, which is about the power to amend legislation in connection with family procedure rules, should be subject to affirmative resolution. The amendment is unnecessary.
The Select Committee on Delegated Powers and Regulatory Reform has already commented on that.
Amendment No. 103 seeks to require that no orders may be made under clause 107(3) unless the order has been approved by affirmative resolution. As I said in response to amendment No. 86, there is a good reason for resisting the amendment because that is already provided for in clause 106(3). There will be affirmative statutory instruments in those cases.
Although the Bill as originally drafted provided for negative resolution of orders made under clause 107, the Government amended the Bill in the other place to provide for affirmative resolutions in the light of views expressed by the Committee on Delegated Powers and Regulatory Reform. We believe that the Bill strikes the appropriate balance between flexibility and parliamentary scrutiny. It is generally acknowledged that the experts on such matters are the members of the Select Committee on Delegated Powers and Regulatory Reform, and we have already amended the Bill in the light of some their views. We now believe that the delegated powers strike the appropriate balance. I therefore hope that the amendments will not be pressed.
I shall not pursue the matter further today. As the Minister has said, Governments traditionally resist attempts by the Opposition for more use of the affirmative resolution procedure. That is an ongoing battle, and we will no doubt return to it on future occasions. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 ordered to stand part of the Bill.