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Schedule 2 - Abolition of magistrates'

Courts Bill [Lords] – in a Public Bill Committee at 4:00 pm on 26th June 2003.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 4:00 pm, 26th June 2003

I beg to move amendment No. 116, in

schedule 2, page 61, line 25, leave out 'or in connection with'.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss amendment No. 117, in

schedule 2, page 61, leave out lines 36 and 37.

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

These are probing amendments intended to clarify the effect of the schedule. I shall set out my worries, after which the Minister must tell me that they are misplaced. Several public or private authorities own property, which is used in connection with magistrates courts, but which forms no part of the magistrates courts committees estate. Under the Bill, it could, in effect, be requisitioned by the Department for Constitutional Affairs to promote its own interests. I am sure that that would not happen, but can the Minister explain the meaning of ''or in connection with''? I understand the meaning of ''for the purposes of'' and ''are otherwise attributable to''.

I shall cite an example. We have a magistrates court in Frome, and I hope that we shall still have one in a few months' time. We have a police station. The police station is next to the magistrates court. The police station and its curtilage are owned by the police authority and the magistrates court is owned by the magistrates court committee. One building is clearly ''in connection with'' the other. They may have other functions, but the positioning is not other than deliberate.

I am slightly worried that the present wording suggests that, when the transfers have taken place, the courts agency could quite properly say—although I do not say that it will—''That building is in connection with the magistrates court, so it now passes into our ownership by statute of Parliament.'' I find it hard to find any reason in the text to say that that is not the case. Will the Minister explain the meaning of ''or in connection with''? What circumstances is the provision intended to deal with?

Sub-paragraph (2) refers to ''persons'' who own property that will be transferred to the new agency. It lists those who we would expect to find in such instances and then includes a catch-all provision, which states:

''any other body which acts under any enactment or instrument for public purposes and not for its own profit.''

Thus, any agency of the state or local government that happens to own property that the Lord Chancellor has his eye on could be required to hand it over by virtue of the provisions for the purposes of adding to the Lord Chancellor's estate. I am sure that that is not the intention, although past Lord Chancellors would no doubt have found that an attractive element in British law. If the provision were not for that purpose, under what circumstances could a body unconnected with the magistrates courts committee and unconnected with an agency of the justice system be required to transfer ownership of property or assets to the Lord

Chancellor because it has some connection with the magistrates or other courts? That seems odd, but there must be a reason for it. Will the Minister say what it is?

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

This is déjà vu all over again.

I take it that the amendment is a probing amendment that is intended to ensure that the Bill is not too widely drawn. The phrase ''in connection with'' is necessary to ensure that all buildings needed for the smooth running of the magistrates courts are transferred under the Bill. It is important that we do not leave anything out. The phrase ''in connection with'' is intended to cover functions related to magistrates courts other than specific court functions.

Two main situations are envisaged, although there may be others. There are apparently 23 instances of MCC office accommodation separate from courthouses fulfilling a function that is subsidiary to but supportive of the judicial function of the courthouses themselves. I am told that there is at least one instance of an MCC management training centre that would be covered by the contentious but important phrase.

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

I want to stop the Minister before he goes any further. Surely those functions are for the purposes of magistrates courts or otherwise attributable to magistrates courts, and do not have to be separately defined.

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

That is not the interpretation of parliamentary counsel in drafting the Bill. We feel that we need the latitude given by the phrase in question in order to encompass the relevant situations. I must put my hand on my heart and say that I have not necessarily visited all 24 examples that I have alluded to, but I shall consider the matter in closer detail.

Photo of Norman Lamb Norman Lamb Shadow Spokesperson (Treasury), Liberal Democrat Spokesperson (Treasury)

I thank the Minister. I understand from what he said that the parliamentary draftsmen feel it necessary to include those words to ensure that the provisions catch the 24 examples that he gave. However, is there not a danger that the provisions go much further than that and potentially bring within their remit lots of other circumstances, which may not be intended?

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

I have not seen sufficient reason to believe that that would be the case. We have an obligation more in the other direction: to ensure that we do not have disputes over the future ownership of buildings whose functions are closely connected to but distinct from the primary function—I stress the word ''primary''—of the magistrates courts.

Amendment No. 117 would leave out paragraph 1(2)(g), which is intended to cover two situations. There may be circumstances under which a public body other than those mentioned in sub-paragraph (2)(a) to (f) has a freehold or leasehold interest in property used for the purposes of, in connection with or otherwise attributable to magistrates courts. Under such circumstances, it is intended that the interest should pass to the

Department for Constitutional Affairs—the DCA. The national probation service was envisioned in constructing the schedule. The service has a significant presence in magistrates courts and in at least one known instance owns the court building. There may be similar situations involving other public bodies, but those have not yet been discovered, and I am certainly not aware of them, so we must err on the side of caution.

In many cases, areas of magistrates courts are occupied by other parties with a connection to the court function, such as the Crown Prosecution Service. Those arrangements are generally on an informal basis for the mutual benefit of the parties. However, it means that in several situations a significant proportion of space available in a courthouse or another building, the function of which is connected with the magistrates courts, is occupied by bodies other than the MCCs themselves. While it is intended that in general those occupancies should remain in place, for the avoidance of complications, the interests of those subsidiary bodies should nominally transfer to the DCA, which will re-grant them back to those bodies. I hope that with that level of assurance and with those particular examples that I have been fascinated to learn about, the hon. Member for Somerton and Frome will withdraw the amendment.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 4:15 pm, 26th June 2003

I do not know who would be prouder of the Minister's performance: Cardinal Wolsey or Thomas Cromwell. One of the two would have been pleased to have that power. I accept the Minister's explanation of why he needs the power for the specific instances. It is drawn too widely but I will have to trust to the good sense and lack of avarice of the new Department to ensure that it does not acquire, by virtue of this statute, property to which it is not entitled.

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

A thought occurs to me. Given that the hon. Gentleman has made his comparison with two famous previous Lord Chancellors and that the most recent Lord Chancellor prior to the reshuffle compared himself to Cardinal Wolsey on a famous occasion, is the hon. Gentleman saying that Lord Falconer is his idea of Thomas Cromwell?

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

Such comparisons would be odious. I notice that there is no specific reference to wallpaper in the clause. We must assume that the previous Lord Chancellor's writ no longer runs.

The Minister has satisfied me about the use of magistrates courts' property by other bodies. However, I am still concerned about what is meant precisely by the phrase ''in connection with'', which is not within the other two definitions. It looks like one of those belt-and-braces jobs in which parliamentary counsel sometimes indulge just to make absolutely sure. It has probably always been put like that when people are taking over just in case someone comes up with a bright reason for resisting the transfer, but it seems otiose. Having said that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the second schedule to the Bill.

Photo of Andrew Miller Andrew Miller Labour, Ellesmere Port and Neston

I want to ask my hon. Friend a couple of questions because there are some issues that are quite fundamental to the people who transfer. Staff transfers are covered in detail in part 2, which is very positive. My hon. Friend will be aware that the Secretary of State for Work and Pensions made an important statement recently about TUPE. It was a progressive statement that was welcomed by those of us who negotiated transfers of undertakings on behalf of employees over many years.

I suspect that it is an academic issue in the context of people like members of the Association of Magisterial Officers because I would presume that their pension transfers would be treated as the kind of club transfers that apply within the public sector. Preferential arrangements are built in for those transfers. As a non-lawyer and not having visited too many magistrates courts, or indeed any other court, I presume that there are other employees who are not engaged on the kind of terms and conditions that are afforded to the Association of Magisterial Officers. I therefore seek an assurance that relates to the timing of the enactment of both this Bill and the statement on pensions. Can we ensure that when these public servants make that transfer the spirit of the statement made only last week is incorporated in whatever we finally enact?

Paragraphs 10, 11 and 12 refer to the Transfer of Undertakings (Protection of Employment) Regulations 1981, and statutory instrument 1981/1794. TUPE specifically excludes pension provision. I appreciate that this is a technical matter, which may require liaison with colleagues in the Department of Work and Pensions, but I seek assurance that the timing of the enactment of the schedule will not disadvantage people.

Secondly, I do not expect an answer today, but for the sake of those of us who are not lawyers, I draw my hon. Friend's attention to paragraph 14—

''Restrictions on employment of aliens not to apply to transferred employees''—

which states:

''Nothing in . . . section 3 of the Act of Settlement (1700 c.2)''.

It is good to hear that legislation enacted by one of my hon. Friend's predecessors has survived for so long: all power to them and the civil service for getting things right.

Similarly, paragraph 14(b) states:

''section 6 of the Aliens Restriction (Amendment) Act 1919''.

That is a tad before anyone in the Room was born. It would be helpful to have some explanation of what that means in plain English, and to know whether there are possible contradictions. I presume that rights might be afforded to Commonwealth citizens who would be excluded from legislation that existed before the creation of the Commonwealth. I make only a general inquiry because I am intrigued by the fact that legislation has such longevity. It is a credit to the British parliamentary institution. The hon. Member for Somerton and Frome shakes his head, but the

Liberals were in power for some of that time, so we might have to blame them for it. I do not know.

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

I honestly do not believe that the hon. Gentleman can blame us for the Administration of 1700, as it would not be considered to be Liberal Democrat in tone.

Photo of Andrew Miller Andrew Miller Labour, Ellesmere Port and Neston

Indeed. I was thinking more of the middle of the 20th century.

There is a serious point to be made: we need to make legislation understandable to lay people. It would be very helpful if the Minister could put these points into context.

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

I am grateful that the hon. Gentleman has raised some important points about pensions, because the announcement made by the Secretary of State for Work and Pensions is relevant to the debate. I am sure that he will be aware that the relevant trade union—the Association of Magisterial Officers—is now generally satisfied about the TUPE arrangements and the staffing issues that were a matter of contention at an earlier stage in our deliberations on the Bill. I am grateful to Ministers for listening to the points that it had to make. Its key point is whether the level of funding will be sufficient after transfer to achieve the objectives that the Bill sets itself, while also representing a fair deal for the staff who work in these institutions. That is a genuine and legitimate concern, which the Minister should be able to address.

On the Act of Settlement 1700, I have little to add other than to say that I suspect that, if anything, it will be disobliging to Scots, rather than anyone else, given that period in English history.

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

Schedule 2 makes provision for the Lord Chancellor to facilitate the transfer of magistrates courts estate and real property rights to the Secretary of State, to transfer other property rights and liabilities to himself, and to transfer staff to his own employment on the abolition of the MCCs under clause 6.

The aim of the property provisions in the schedule is to integrate the Court Service and magistrates courts estates under the auspices of the new agency. The schedule provides that the Lord Chancellor may create a property transfer scheme to transfer any property, rights and liabilities of the MCCs, local authorities and others, in connection with the magistrates courts, to the Lord Chancellor or another Minister immediately before the appointed day. The appointed day is the day immediately before the MCCs and the Greater London Magistrates Courts Authority are abolished. The details of the transfers will be contained in a property transfer scheme.

The schedule overrides any provisions of whatever nature that might prevent, penalise or restrict the transfer. It provides for just compensation to be paid to third parties whose rights are affected by other provisions in the schedule and provides that a certificate issued by the Lord Chancellor will be conclusive evidence that property has, or has not, been transferred.

The schedule also sets out a number of important provisions that will allow eligible staff currently

employed by the MCCs to transfer to the new agency. That was the subject of the comments made by my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller). The definition of an eligible employee is set out in paragraph 9(4) and includes local authority staff who spend a substantial amount of their time on work connected with the MCCs or magistrates courts.

In relation to the matter my hon. Friend raised, the schedule makes it clear that the Transfer of Undertakings (Protection of Employment) Regulations 1981, which are known as TUPE, will apply in order to ensure that staff subject to the scheme will receive terms and conditions of employment under the new agency which are no less favourable that those that they had under their previous employers. Although TUPE excludes pensions, there is no intention to disadvantage staff transferred to the principal civil service pension scheme. Transfers will have to be worked out so that terms are broadly equivalent, according to actuarial calculations. I hope that that is sufficient to placate my hon. Friend.

My hon. Friend also asked about restrictions on the employment of aliens not applying to transferred employees. Some hon. Members will have followed the civil service reform programme over several years. Having been a Minister at the Cabinet Office, I can say that the Government have been concerned for some time about civil service rules including a certain number of nationality conditions in relation to employment in the civil service. The schedule provides that any MCC or local authority staff who are regarded as aliens under the current definition in civil service employment legislation will still be eligible to transfer into the employment of the Lord Chancellor. In this context, an alien can be defined as a person who is precluded from employment in the civil service by existing legislation. Examples are

nationals of non-European Community or non-European Free Trade Association states. I hope that that answers my hon. Friend's point.

The hon. Member for Somerton and Frome was particularly concerned about funding. That has obviously been raised in discussions with the relevant trade unions and employee associations as matters have progressed. I am assured that the plans that are in place are robust and capable of dealing with all the necessary costs, but I will obviously ensure that the management of the process is closely monitored to ensure that we are not underfunding transfer arrangements in any way.

Photo of Norman Lamb Norman Lamb Shadow Spokesperson (Treasury), Liberal Democrat Spokesperson (Treasury) 4:30 pm, 26th June 2003

May I ask the Minister another question about TUPE, to which he has just referred? The TUPE regulations do not preclude the transferee—the receiving employer—making staff redundant if the redundancy is genuine. Is it anticipated that staff could be made redundant, despite the provisions of TUPE applying, or will all existing staff transfer and retain their employment?

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

I dealt with some of these matters earlier in references to similar discussions on the general duties under clause 1 and I will not repeat what I said. We want the transfers to go through without the controversies to which the hon. Gentleman alluded. However, we will keep matters under review as they develop. We cannot preserve the current arrangements in aspic for all time, but we intend to honour our normal TUPE obligations.

Question put and agreed to.

Schedule 2 agreed to.

Further consideration adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-nine minutes to Five o'clock till Tuesday 1 July at half-past Nine o'clock.