§ Madam Deputy Speaker
With this it will be convenient to take Government amendments Nos. 39 and 40.
Government new schedule—Transitional provisions and savings.
Government amendments Nos. 44 and 45.
§ Mr. Leslie
This group of miscellaneous Government amendments essentially covers four different policy areas, but the amendments are significant none the less and I shall briefly run through the reasons why we have tabled them.
437 Government amendment No. 37 deals with rules to make provision for the election of the chairman and deputy chairmen of a bench of magistrates in a local justice area. As a bit of background, I wish to say that clause 17 provides for the magistrates of a local justice area to elect from their number a chairman and one or more deputy chairmen and gives the Lord Chancellor a rule-making power to designate how that will operate. Clause 17 would simply re-enact those parts of section 22 of the Justices of the Peace Act 1997 that relate to those elections. However, the framework for the current rules would disfranchise magistrates who have been appointed only recently to a local justice area, restricting participation to those who have experience in that local justice area.
Opposition Members certainly highlighted such issues in Committee. Having heard the debate in Committee and considered such issues, I thought that those arrangements seemed rather odd, so I then agreed to reconsider the provision. It is not the Government's intention to prevent any justices from taking part in the full range of their duties and therefore, to make that clear, we wish to delete clause 17(5)(c), so that there will be no suggestion that only those with more experience should take part in or contest those chairmen or deputy chairmen elections.
We do not have a tradition in this country of limiting any franchise to people who have lived within the borders of a constituency for a certain time. People can vote as soon as they are on the electoral roll. We believe therefore that the same principle should apply to lay justices when choosing the chairman for their area. The current rules to do not exploit such a bias against newer local magistrates, but that change will make it clear that we have no intention of taking such a discriminatory approach.
Government amendment No. 39 relates to the appointment of the Official Solicitor for Northern Ireland. The Official Solicitor is the person responsible for acting in the interests of children and others people where no one else is suitable, willing or able to act on their behalf. Such cases are typically referred to the Official Solicitor by the courts. In England and Wales, the post of Official Solicitor can be filled by either a solicitor or a barrister. However, there is a question mark over whether a barrister would be entitled to appointment to the Northern Ireland post.
Following discussions in Committee—I am grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for pointing this out—I have taken the opportunity to consult the professions in Northern Ireland about a proposed change. Not surprisingly, the Bar considers the current position to be indefensible. However, the Law Society considers that a full consultation exercise might be required before it could take a view one way or the other. While noting the Law Society's requests, I have decided that the opportunity should now be taken to open that post to barristers, so under Government amendment No. 39, the Government seek to end the apparent anomaly and to remove the different eligibility criteria for the posts, allowing barristers the chance to be appointed as the Official Solicitor for Northern Ireland. I trust that the House will agree that that makes good sense.
438 Government amendment No. 40 and new schedule 1 are transitional, smoothing measures to ensure, among other things, that the provisions for new local justice areas will initially be the same as the petty sessions areas at the date of commencement. The new schedule includes several transitional provisions designed to aid the smooth passage from the current arrangements to the new ones. We believe that users of the court system will find it more helpful to have those included in the Bill, and I hope that the House will accept that that is to be welcomed. Continuity is the main purpose of the new schedule, so that, for example, justices' clerks will be treated as having been appointed and designated as clerks under the Bill and as having been assigned to the areas in which they have been working prior to the commencement of the Act. It will also safeguard their compensation entitlements, about which many Members are concerned. Lay justices who are currently on panels for family proceedings courts will be treated as having been authorised to sit in those courts under the Bill. Those entered on the supplemental list will automatically go on the new list. Entries on the current register of judgments will be treated as included in the new register.
Furthermore, the schedule allows for what are known as savings provisions, which were new to me. The function of a savings provision in legislation is to preserve or "save" a law, a right, a privilege or an obligation that would otherwise be repealed or cease to have effect. We therefore intend the Bill to permit a saving of the contracting-out orders already made under the previous legislation and the saving of provisions to ensure that the positions of Keeper of the Rolls, chairmen of benches, senior district judges and courts inspectors can continue. Often, that kind of transitional and saving provision is made by order, after legislation is enacted, but we felt that it was important to bring those forward so that they can go into the Bill proper, although other transitional provisions may need to be made by order under clause 109(3)(b) later. Again, I hope that the House will agree that that is a positive step.
Finally, Government amendments Nos. 44 and 45 allow the continuing presence of lay magistrates sitting on local police authorities as currently provided for in the Police Act 1996. Although the Bill has the effect of abolishing magistrates courts committees, it is clear that we still need to make provision for a mechanism whereby magistrates are selected to sit on police authorities as under the 1996 Act. Lay justices make a full and professional contribution to the work of police authorities, and that should be continued. The amendments therefore allow for a continuity of input from a key section of the criminal justice system. We propose to adapt the current system used in the appointment of independent members of police authorities, whereby a selection panel provides a shortlist from which other police authority members may make a final selection. The procedure with independent members is one whereby the selection panel produces a long list, which the Secretary of State reduces by half, and the designated members of the local police authority make the final selection. In the case of lay justices, it is sufficient to remove the role of the Secretary of State, and we feel that it is right to have localised rather than Whitehall-based selection.
§ Mr. Hawkins
As the Minister has said, this is a group of miscellaneous amendments. First, however, I thank him for his response on behalf of the Government both to the hon. Member for Somerton and Frome (Mr. Heath) in relation to Government amendment No. 37, and to me in relation to Government amendment No. 39. As the Minister has explained, those were matters that we raised in Committee, and it is helpful that the Government have been able to respond positively to our concerns. The hon. Member for Somerton and Frome seized on an important point that the provision should not be restricted to just experienced justices, and, in relation to what I said in Committee, at column 189 of the Official Report of the Committee proceedings on 8 July, I am delighted that the Minister has been able to agree with my view that there was no reason why a barrister in Northern Ireland should not be appointed as the Official Solicitor. I am also not at all surprised—neither was the Minister—that the Bar of Northern Ireland agreed with me on that. I am pleased that the Minister has responded positively. I thanked him in Committee when he signalled that he might be prepared to think about it again. I am pleased that he has not opted for a full consultation and yet further delay, as was suggested by his other consultee, the Law Society, in the Province.
On Government amendment No. 40, which introduces new schedule 1 on transitional provisions and savings, I had one concern. When the Minister responds to my comments and those of the hon. Member for Somerton and Frome I wonder whether he can say a little more about the heading to paragraph 2 in relation to contracting-out. While I understand entirely what the Minister says about smoothing provisions and making sure that there is continuity, it strikes me that a little more detail might need to be given about existing contracting-out provisions and how those are being dealt with. Paragraph 2 of new schedule 1 does not give us a lot of detail. If the Minister is not able to respond today—I appreciate that he might not be able to do so—I wonder whether he would kindly write to me and other hon. Members interested in that matter, to give us a little more detail about how the contracting-out provisions will work in that new schedule.
Government amendment No. 44, the changes to schedule 8 and the introduction of schedule 3A on the selection of lay justice members for police authorities may change with the incoming Conservative Government after the next election because, as my right hon. Friend the Member for West Dorset (Mr. Letwin) has set out, there will be greater local democratic control of policing. I therefore hope that the Minister realises that what he is talking about, in terms of changes to police authorities, may not survive in law for long. Can he say a little more about how sub-paragraph (6) of proposed new schedule 3A will operate in relation to designated members? The term "designated members" is used in various ways both in the new schedule that he is putting forward and elsewhere in this legislation. It seemed to me that it was not entirely clear which were the designated members to whom he referred who have a casting vote when too few people are on the shortlist. I was slightly puzzled with that, and if he is not able to give me a detailed reply today about why only 440 designated members will decide in the unusual situation in which too few candidates are on the shortlist, I hope that he will write to me and to other interested Members.
In a letter that the Minister helpfully sent to me about this group, the Government claim that they are simply introducing an effective procedure. If it is to be an effective procedure, we must all be entirely clear about how it will operate. I am sure that the Minister will agree about that. Government amendment No. 45 seems purely technical, so I have no concerns about it.
I thank the Minister once again for the way in which he has responded to concerns raised in Committee and particularly for agreeing with me about Government amendment No. 39. I hope that when the first barrister in Northern Ireland is appointed as Official Solicitor he will reflect back on the Hawkins amendment to this legislation.
§ Mr. Heath
And when the first magistrate who would otherwise have been deprived votes in an election, I hope that it will be recalled equally that it was my amendment that prompted the Government's helpful response. I am grateful to the Minister for listening to what I thought was a fairly unanswerable argument. He clearly felt the same because this evening he repeated the argument that I put in Committee. I am glad that we have sorted out what seemed to be a glaring anomaly, which proves an old adage: we should not just lift bits of old legislation and put them into new legislation without applying the test of whether they work. I am afraid that, because of the volume of legislation with which we deal in this place, we are too prone simply to lifting bits of previous legislation, and assuming that, because no one has complained, they are all right. I have never taken that view. We must look at each and every previous enactment and apply the following tests: first, whether it works satisfactorily; secondly, whether it is right; and thirdly, whether it is open to challenge in the future.
§ Mr. Heath
I see the Minister nodding, so he obviously agrees with me on that point.
I thank the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie) for Government amendment No. 37 and for Government amendment No. 39, for which the hon. Member for Surrey Heath (Mr. Hawkins) rightly takes the credit. It is a minor but important change that I am sure somebody in Northern Ireland will have reason to complain about at some stage. However, let us assume that his amendment is helpful.
I have very little to say about Government amendment No. 40 and new schedule 1. I have examined the transitional arrangements and they look broadly sensible. I have a slight quibble about them being introduced so late in our consideration. In a well ordered Bill, they might have appeared before us in Committee or earlier during the Bill's consideration in this House. The Bill started in another place and has had a long passage through the House. The transitional arrangements are fundamental to the operation of the new system.
441 Government amendments Nos. 44 and 45 deal with the constitution of police authorities. I pinched myself when I listened to the hon. Member for Surrey Heath. Apart from his absurd pretension that the Conservatives might form the next Government, it seems that those on the Conservative Front Bench now wish to rubbish the very arrangements that were introduced by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), who still plays a part on the Opposition Front Bench and may play a greater part in the future.
We are dealing with the right hon. and learned Gentleman's proposals—they were not dreamt up by the present Government or a Liberal Democrat policy group. They were pushed through when I had the misfortune to be the chairman of a police authority and had to make them work. I remember thinking that, if anyone ever wanted to bring the whole system of appointment into disrepute, they would create the byzantine structure that he introduced. It is an absurd structure that defies any understanding of how it might sensibly have been put together. It is like that because the right hon. and learned Gentleman originally wanted to appoint the lot. He made no bones about that. His original proposal was that the members of a police authority should not be appointed by local people—the hon. Member for Surrey Heath now says he is very much in favour of that—but that they should be appointed by the Secretary of State.
When that proposition caused uproar across the country, the right hon. and learned Gentleman had to row back and produced a system that was so complicated that nobody could understand it. That was how we ended with the police authority structures that we have today. When I hear the right hon. Member for West Dorset (Mr. Letwin) say that we now have an appalling system for police authorities, I want everyone to remember who set it up—the right hon. and learned Member for Folkestone and Hythe, who is the right hon. Gentleman's colleague on the Front Bench and is in charge of the Conservative Opposition's financial policy. Some interesting discussions must be going on behind the scenes on this and a great many other subjects.
To return to the amendments, I had hoped that the Government might have been even more radical in their response to the present arrangements. However, they have moved a little way in removing one of the absurd stages in the process of the Secretary of State's involvement, and I am grateful for that. On the basis that this is not a police authority reform Bill, I suspect that that is as much as could reasonably be expected. Let us welcome the small progress that has been made while recognising that police authorities still have an odd structure that would repay closer examination in the near future.
§ Mr. Leslie
I am glad that hon. Members have welcomed some of the Government amendments. Those hon. Members were instrumental in highlighting some of the peculiar aspects that were carried over from previous legislation, and that proves that scrutiny in Committee is of value. I do not know whether they will be termed the Hawkins and Heath amendments or 442 whether Leslie will get a look in, but I am glad that they will appear on the statute book and that small numbers of people will benefit from them.
I cannot immediately help the hon. Member for Surrey Heath (Mr. Hawkins) with the details of what would happen should the shortlist for the selection of magistrates be too small and with which designated members would oversee the process. I shall endeavour to write to him to clarify the issue, but I shall not be drawn into the Conservative party's proposals for elected sheriffs in its desperate last-gasp attempt to curry favour with the wider world. I suspect that that debate is for another day.
I will answer the hon. Gentleman's specific question about contracting out. Orders already allow for the contracting out of certain functions in the courts under the provisions of the Courts Act 1971. Nothing in this Bill calls into question the legitimacy of those orders, which are proper and effective. The provisions merely confirm that the existing contracts will continue. In a sense, it is another way of underlining the fact by having transitional and smoothing provisions to ensure that there is no room for dispute about the facts.
The hon. Member for Somerton and Frome (Mr. Heath) referred to police authorities and the magistrates membership on them. I do not think that this is the right place or time to go into that matter. As he said, this is not a police authority reform Bill, but I hope that the House will recognise that there is much sense in the Government amendments.
Amendment agreed to.