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I beg to move amendment No. 18, in
clause 3, page 2, line 40, leave out 'shall' and insert 'may'.
During Committee stage in the other place on 28 January, Baroness Anelay tabled a successful amendment to clause 3. The aim of the amendment was to make it clear that the Lord Chancellor should be under a duty to provide, equip, maintain and manage such courthouses, offices and other accommodation as appear to him appropriate. The amendment therefore changed the wording from ''may provide'' to ''shall provide''. Baroness Anelay was concerned that the Lord Chancellor should not have discretion to choose to make no provision. I think that that is a fair summary of the rationale behind her amendment.
I fully understand the noble Lady's concerns about interpretation and not leaving unnecessary lacunas in the Bill. Nevertheless, we want to reverse her amendment at this stage, as we feel that the Bill makes it clear that the Lord Chancellor is already under the necessary duty, and I shall explain why. Primarily, clause 1(1) states that the Lord Chancellor has to provide an efficient and effective court system; that is his general duty. We are worried that the wording of the Opposition amendment could create uncertainty about the relationship between clause 3(1) and clause 3(2). If the Lord Chancellor, by virtue of clause 3(1), were under a duty to provide, equip, maintain and manage such courthouses himself, how could any contracting out take place under the subsequent subsection? The amendment would produce dubious wording in the Bill, so it needs clarifying.
The uncertainty is greater still, given that there is at present a mismatch between the words of clause 2, which still states ''may appoint'', and clause 3, which now states ''shall provide''. They were formerly constructed in a similar way. We feel that, in addition to those reasons, some potential problems of interpretation would remain. That particular phraseology needs to be altered and we should leave out ''shall'' and insert the word ''may''. I hope that the Committee can see the benefits of the amendment.
I add my welcome to your chairmanship of the proceedings this afternoon, Mr. Illsley.
I am slightly disappointed that the Government have not accepted one of the mini triumphs of my noble Friend Baroness Anelay of St. Johns in another place. Having considered the matter, I do not propose to resist amendment No. 18 this afternoon. The Minister sent me a helpful letter and the Under-Secretary of State, Lord Filkin, sent a not dissimilar one to my noble Friend the Baroness Anelay, explaining the basis of the Government's thinking.
have had it stated on the record this afternoon that the firm duty—which was what our amendment was seeking to achieve—is acknowledged by the Minister.
When I read Lord Filkin's letter to my noble friend Baroness Anelay, it seemed that what Ministers were being told was coming from parliamentary counsel. If the word had been changed and allowed to remain, parliamentary counsel was worried that there might be some confusion. As the hon. Member for Somerton and Frome will be aware, we had some of those concerns expressed by parliamentary counsel on the Crime (International Co-operation) Bill that we finished in Committee last week. I said on that occasion that sometimes parliamentary drafting as an arcane skill is rather different from the way in which Acts are read by ordinary people.
Nevertheless, we do not want to have any confusion. While we preferred our wording of the amendment that was passed in another place, we do not want to undermine the basis of what the Minister has said, which acknowledges that there is a clear duty on the part of the Lord Chancellor. Given that the hon. Gentleman said that on the record, it will be recorded in Hansard, so it lays to rest our worries about clause 3 as originally drafted.
In the light of the Minister's helpful reassurances both in his letters and in what he has said this afternoon, I shall not pursue the matter further or press it to a Division. We accept that on this occasion—although not on many others—the Government can reverse what was done in another place.
I accept entirely the Minister's argument. The clause will deal with a power rather than a duty. The power derives from the duty, not the other way round. There is potential for confusion in the present wording.
Given that there is no explicit duty to provide premises in the general duty, does that have any implications for the powers of compulsory purchase under the Town and Country Planning Act 1990, or will the general duties suffice for that purpose?
I have to assume that there is no adverse effect on our powers as set out. Particular descriptions of the nature of compulsory acquisitions of powers are set out under clause 3. We are relatively content with them. However, I will talk to officials at some point and if there is any opinion other than that which I have just expressed, I will drop the hon. Gentleman a note to correct myself, but I do not anticipate any difficulties. I am glad that hon. Members can see that we might get into a pickle should the words remain in the Bill and that the amendment is necessary to preserve the spirit of good working order under the new arrangements.
As a layman surrounded by lawyers, I hesitate to challenge the wording of legal documents, but looking at the clause with layman's eyes—[Interruption.] I am not alone, I am glad to hear. At line 41, the phrase ''appear to him appropriate'' seems so open to interpretation that I
wonder if it would matter whether the word ''shall'' were changed to ''may'' or not. It could be overridden by an interpretation of ''appear to him appropriate''. For example, if the Lord Chancellor thought it appropriate to close a courthouse, the wording would hardly matter. That is a layman's question.
That is a reasonable question for the hon. Lady to ask. Our primary concern is that, if the Lord Chancellor must provide, equip, maintain and manage courthouses himself, it raises a doubt whether the contracting out by a third party would be possible. If we were to rely only on the phrase ''appear to him appropriate'', there would still be confusion. To avoid that, I consider that it is best to change that word.
Amendment agreed to.
Clause 3, as amended, ordered to stand part of the Bill.