Lords Sitting of 22 February 1994

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers— Read by the Lard Bishop of Chelmsford.

Civil Actions: Damages
Lord Gisborough Lord Gisborough asked Her Majesty's Government:
Whether they are satisfied with the increasing amounts of damages awarded to litigants in civil actions, and in particular those awarded against the Ministry of Defence.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, because the Government were aware of anomalies in this area of the law, in 1991 I invited the Law Commission to examine the principles and effectiveness of the remedy of damages. This will help a more rational basis to be applied and understood by all those affected by civil litigation. The Law Commission has already issued two consultation papers.
Lord Gisborough: My Lords, I thank my noble and learned friend for that Answer. In view of the outrageous awards in the United States, awards towards which this country is starting to move, does he agree that the Government should take action to try to keep awards relative to actual loss and degrees of recklessness rather than to the imagination and greed of plaintiffs and their lawyers?
The Lord Chancellor: My Lords, I have suggested to your Lordships that it is right that awards should be in accordance with principles. The purpose of the remit to the Law Commission is that it should help us to restate those principles in a way that will be readily comprehensible and, I hope, will also avoid any kind of detriment of the type to which my noble friend referred that might possibly travel eastwards from the United States.
Lord Ackner: My Lords, does my noble and learned friend agree that the conventional award, as it is called — the award purely for pain and suffering and loss of amenities— is in fact arguably too low, a point that is made in the Judicial Studies Board's guidelines on the assessment of general damages? The guidelines draw attention to what perhaps is not known— that the top award at the moment for injuries of the utmost gravity is between £ ll0,000 and £ 115,000. The award is starkly raised when there is a combination of injuries of the greatest gravity; blindness or deafness, brain injury and paralysis. Does my noble and learned friend agree that the factors contributing to the big figures to which attention is drawn are loss of income, loss Of pension, medical treatment and often the large expenses involved in making the establishment in which the injured person lives capable of being used properly by him?
The Lord Chancellor: My Lords, undoubtedly, especially in large awards, by far the major part of the award reflects pecuniary loss of the types to which my noble and learned friend Lord Ackner refers. The precise principles on which the conventional award should be based constitutes a rather difficult question. I hope that the Law Commission's examination of the whole area will encompass that aspect. I agree with my noble and learned friend that there is an argument that the present level is on the small side when one compares awards with some in other fields.

Mr. Christopher Campbell: BR Post
2.40 p.m.
Lord Sefton of Garston Lord Sefton of Garston asked Her Majesty's Government:
Why they appointed Mr. Christopher Campbell as vice-chairman of the British Rail board.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Mackay of Ardbrecknish): My Lords, Mr. Campbell has been appointed as vice-chairman of the British Rail board with the main responsibility of overseeing the disposal to the private sector of all BR's non-passenger businesses.
Lord Sefton of Garston: My Lords, accepting the Government's word for what it is, is it still the Government's intention to help to retain the integrity of our national railway system; and, if so, could that not have been included in the criteria for appointing the vice-chairman of British Rail, bearing in mind the rumours that are abounding in the press?
Lord Mackay of Ardbrecknish: My Lords, I suspect the rumours abounding in the press which the noble Lord mentioned relate to a report in the Guardian this morning about a document which I suppose was found in the usual brown envelope which seems to turn up here and there. I must disappoint the brown envelope purveyors, and I hope please the noble Lord, by saying that the document in question will be deposited in the Library later this afternoon. Then the noble Lord will be able to see that our only intention is to return as much of BR to the private sector as we possibly can in the certain knowledge that that— and only that— will improve the service to the customer.
Lord Boyd-Carpenter: My Lords, is not this the appointment of an extremely able man, admirably suited to the difficult job which he has been given? Will my noble friend indicate Her Majesty's Government's complete confidence in him, and their rejection of the implied criticism in this Question?
Lord Mackay of Ardbrecknish: My Lords, my noble friend gives me the opportunity to do just that. I am always slightly surprised when I hear criticism when first-class people are appointed to jobs such as this. I often wonder whether people who supposedly have the

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railways' interests at heart would prefer second-class people. Mr. Campbell is first-class; he has a first-class background, and he knows exactly what he is about.
Lord Dean of Beswick: My Lords, in his reply the Minister indicated that one of the remits of Mr. Campbell is to return parts of British Rail to the private sector. Where did they come from in the first place?
Lord Mackay of Ardbrecknish: My Lords, the Answer I gave was that his specific task would be to oversee the disposal of the non-passenger business of British Rail to the private sector. The objectives of the Act which was passed recently are to do just that; namely, to return as much as possible of BR to the private sector.
Lord Dean of Beswick: My Lords, the Minister has not answered my question. He specifically repeated that parts of British Rail would be returned to the private sector. What if parts of it were never in the private sector?
Lord Mackay of Ardbrecknish: My Lords, I believe that we are beginning to split hairs. If the noble Lord would prefer me to say that the object is to place as much as possible of British Rail in the private sector, then I shall say that. But as some of it originally came from the private sector, if not most of it, then I believe "return" is an appropriate word.
Lord Dormand of Easington: My Lords, does the Minister agree that the description "first-class" is subjective to a large extent? The Minister placed great emphasis on that. Does the Minister recall that noble Lords were told on a number of occasions that the chairman of the Welsh Development Agency was first-class; that the chairmen of some of the regional health authorities were first-class? And we know what happened to them!
Lord Mackay of Ardbrecknish: My Lords, ' the noble Lord should not move from particular to general cases. Mr. Campbell has an excellent background. He has been involved in a number of privatisations over the past eight or nine years, and before that he had a distinguished career with Debenhams. I hesitate to add this because the last time I mentioned this occupation, your Lordships did not think that by definition it made him first-class; namely, that he is a chartered accountant.
Lord Clinton-Davis: My Lords, is the Minister aware that conferring an accolade of that kind by this Government must cause Mr. Campbell a great deal of anxiety? Was it not the former Chancellor of the Exchequer, the noble Lord, Lord Lawson, who was similarly described by the then Prime Minister one day before he departed office? Does the Minister agree that this appointment is wholly in keeping with the thesis which was set out in an advertisement by this Government in the Sunday Times for a railway regulator, where his qualifications were described as:
"Knowledge of railways or public transport an advantage but not essential"?
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Is it right that Mr. Campbell has in fact no knowledge of railways other than when he was managing director of Hardy Amies and they were designing uniforms for British Rail employees? Is it not also a fact that, as usual these days— or is so frequently the case— Mr. Campbell is a card-carrying member of the Tory Party?
Lord Mackay of Ardbrecknish: My Lords, I cannot comment on the latter part of the noble Lord's question because I simply do not know if he carries a card for any party or no party. I say to the noble Lord that if one made appointments only on the basis of one's experience of the various subjects one is to be made responsible for, I certainly would not be responsible for aviation and shipping, and I doubt very much whether the noble Lord would have been made a Commissioner of the European Commission.
Lord Stoddart of Swindon: My Lords, is the Minister aware that— thank God! — he does not actually run any of those himself? Bearing in mind his confidence in Mr. Campbell and privatisation, will he guarantee that when Mr. Campbell has finished, we shall have a cheaper, more punctual and a much more comfortable railway service as a result of his activities? Will the Minister guarantee that?
Lord Mackay of Ardbrecknish: My Lords, I am certain that Mr. Campbell will play an important part in doing just that. He will be part of the team which will ensure that the railways we have in the future will see the same kind of improvements that aviation has had since the introduction of competition and the privatisation of British Airways.
Lord Sefton of Garston: My Lords, will the Minister accept from me that I implied no criticism of Mr. Campbell, although other noble Lords seem to have taken the opportunity to criticise him? As usual, the noble Lord who suggested that I was criticising has got hold of the wrong end of the stick. If the Government are still intent on preserving the integrity of the national system of railways which we have always boasted about, whether under private or public ownership, why are they intent on divorcing a local railway system, which has a catchment area of almost 2 million customers, from an immediate connection with the Channel Tunnel?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord has moved away a little from the specific Question as regards the appointment of Mr. Campbell. However, the existence of Railtrack ensures a degree of integrity in the system, if the noble Lord actually means physical integrity. The adjacent railway franchises, while they may not be under the same franchisee, will have a close interest in co-operating to make sure that passengers can move from one area into another in the most effective and comfortable way.
Lord Taylor of Blackburn: My Lords, will the Minister ask Mr. Campbell to try to establish a link between the Channel Tunnel and Liverpool?
Lord Mackay of Ardbrecknish: My Lords, I am not sure that Mr. Campbell would have taken on the job if

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he had thought that he would be responsible for Liverpool. Mr. Campbell's responsibilities are largely for the non-passenger portion of the railways. The noble Lord's question is a little wide of the original Question.
Lord Sefton of Garston: My Lords, perhaps I may press the Minister still further on the question of the Channel Tunnel link. The Question that I tabled originally is not the same as that on the Order Paper. It was to ask the Government on what criteria they appointed Mr. Campbell. I am now asking the Minister on that criteria whether he can give a reason why a catchment area of 2 million people is being divorced from the Channel Tunnel link. If the Minister cannot answer me, I shall ask Mr. MacGregor later today.
Lord Mackay of Ardbrecknish: My Lords, if the noble Lord tables a specific Question on that issue, I shall certainly answer it.

NHS: Long-term Care
2.50 p.m.
Lord Chapple Lord Chapple asked Her Majesty's Government:
Whether they will investigate the extent of the discharge by NHS trust hospitals of patients who might be regarded as too old or too ill to be discharged
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, it is for local authorities to assess the needs of people leaving hospital. Together with health authorities, they should agree their respective responsibilities for long-term care.
Lord Chapple: My Lords, I thank the Minister for that Answer. My concern arises from personal experiences and those of other people which have been communicated to me that old people in hospital are often harassed (to the point where great anxiety is caused to their families and friends) to leave hospital and seek care in residential homes although it is well known that they are in need of medical care which is not provided in those homes.
Baroness Cumberlege: My Lords, if old people are harassed, that is unacceptable. Our policy is quite clear: if people need professional healthcare— and that is a judgment made by a clinician— they should get that care within the National Health Service.
Lord Dean of Beswick: My Lords, but is it not the case that the care provided depends on geographical location? Some members of the public are far more fortunate and have a far better chance of being allowed a long stay in hospital when that is necessary than people who live in other parts of the country where, per capita, the availability of such beds is much lower. If that is the case, will the Minister take this point on board and see what can be done to redress the imbalance?
Baroness Cumberlege: My Lords, we leave the question of to where people are discharged to local decision-making. That decision has to be made in
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discussion not only with the patient concerned, but also with their carers and families. Many people prefer to be cared for at home, given enough support. Indeed, our results show that they actually recover more quickly at home.
Lord Molloy: My Lords, I acknowledge that this is a difficult problem for the department, but could the Minister examine the possibility of seeking closer help from local authorities and certain very well known voluntary organisations which, if they were approached, would be only too happy to help?
Baroness Cumberlege: My Lords, yes. The whole purpose of the National Health Service and Community Care Act, the provisions of which came into force in entirety in April of this year, is to ensure that local authorities, health authorities and voluntary organisations work closely together. Our initial monitoring shows that that is beginning to happen in a much more real way than previously.
Baroness Jay of Paddington: My Lords, does the Minister acknowledge the report of the ombudsman on the Leeds healthcare trust case (when the healthcare trust was criticised for precisely the kind of action to which my noble friends have referred), which suggested the need for a national policy? Is not this another area in which the dispersion of authority from the National Health Service to local trusts is resulting in the breakdown of the National Health Service?
Baroness Cumberlege: My Lords, no, I do not believe that there is a breakdown of the National Health Service. It has never been better, never had more resources and never had more people working in it. The Leeds case took place before the new community care Act came into force. The Leeds health authority has accepted responsibility for what happened. Et has paid an ex gratia payment and is looking after the patient concerned. I believe that far from falling apart, which is what was predicted by those who were full of doom and gloom when the community care Act was introduced, the Act is proving to be far more successful than anybody anticipated.
Baroness Jay of Paddington: My Lords, may I press the Minister a little further on this? Is she saying that the Leeds healthcare trust case was totally isolated? Is it not, in fact, part of a pattern which is growing?
Baroness Cumberlege: My Lords, the Leeds case took place several years ago and, as I have said, long before the community care Act was introduced. Although I cannot give an absolute undertaking that in every single case everything will work perfectly— after all,7.5 million people are admitted to hospital every year— we now have discharge procedures whereby arrangements are made with the families, carers and patients concerned. No patients should be discharged until those procedures are fully implemented and there is agreement between all the parties concerned.
Lord Chapple: My Lords, will the Minister take note of the fact that the issue raised in the Question has arisen since last April when the community care Act

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came into force? It seems to me that what is lacking is a more widespread knowledge of what that Act actually amounts to. When elderly people are in hospital, something should be done to acquaint their families with their rights, which the Minister has outlined.
Baroness Cumberlege: My Lords, I absolutely agree with that. As in other cases, I am always very willing to take up a particular case to ensure that things have gone right and, if they have not gone right, we should learn from that. The chief executive of the NHS Management Executive wrote to all hospitals, trusts, health authorities and social services departments about hospital admissions and discharges saying that they should keep their procedures constantly under review.
Lord Rea: My Lords, I am pleased that the Minister agrees that the National Health Service has a continuing responsibility to look after the numerous cases of long-term chronic illness which need low-tech but definite healthcare rather than care by untrained people. Does the Minister agree that such care should preferably be provided in the community and be run, if possible, by general practitioners and nurses locally, close to the patients' home? Can she say whether any such units have been commissioned or built in London prior to the closing of hospitals, as suggested in the Tomlinson report?
Baroness Cumberlege: My Lords, yes, there is a need for a variety of provision. Some of the hospital-at-home schemes are proving to be not only extremely effective, but also popular with those whom they look after. We have clear discharge policies and if those policies are not being followed, I would want to know.

Durham Coalfield: Water Pumping Policy
2.57 p.m.
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
Whether they will take action together with British Coal to avert the consequences of switching off the water pumps in coal mines now closed in County Durham.
The Minister of State, Department of Trade and Industry (Lord Strathclyde): My Lords, it is an offence under the Water Resources Act 1991 to cause the pollution of a water course. British Coal is in close touch with the National Rivers Authority, which is responsible for enforcing this legislation.
Lord Dormand of Easington: My Lords, is the Minister aware that the National Rivers Authority, which he has just mentioned, stated recently that the Durham coalfield would produce a pollution bombshell if British Coal switched off the pumps and that there would be discharges of water within three months and eventually a discharge of 4.5 million gallons a day into the rivers? Does the Minister not agree that the peculiar
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attitude that is now being adopted by British Coal is closely linked to privatisation and that the Government really ought to be doing much more on this matter, particularly in view of the disappointing Answer that the Minister has just given me?
Lord Strathclyde: My Lords, first, I am sorry that the noble Lord found my Answer disappointing. I thought that it was rather a clear Answer. Secondly, I can tell the House that this has nothing to do with privatisation. It is the current law and current statutes that deal with the pollution emanating from mines. In respect of the current situation in the Durham coalfield, I understand that British Coal met the NRA on 1st February to discuss the latest position and that British Coal is currently considering what the next step should be. My understanding is that it will seek to reach an agreement with the NRA before making any changes to its pumping programme.
Lord Mason of Barnsley: My Lords, is the Minister aware that in the case of the River Wear halting pumping could result in a low flow? The river will then be unable to cope with the normal effluent, there will be an increase in pollution and a good salmon/trout river in the North will be ruined. In many other cases— not necessarily Durham and the River Wear— pumping having ceased from coal mines, there becomes an overflow of obnoxious, coloured water which flows into rivers, streams and meadows causing great environmental damage. There is a danger that water supplies might be contaminated. The Minister mentioned the Water Resources Act 1991, which requires British Coal not to cause pollution. What are the Department of the Environment and the National Rivers Authority doing about prosecuting the many cases which come to their knowledge?
Lord Strathclyde: My Lords, the noble Lord's interest in salmon and trout fishing is known throughout the House. He is a great champion of the cause of river anglers and it is right that he should have an interest in this matter. I cannot comment on individual cases. However, I confirm that the subject is of great interest to the Departments of Trade and Industry and the Environment as well as to the National Rivers Authority and British Coal. The Government are committed to reviewing the legal framework for discharges from abandoned mines. The Department of Environment is taking the review forward in tandem with a broader review of contaminated land liabilities.
Lord Merlyn-Rees: My Lords, who will be responsible for the large number of unworked collieries which are natural wells, as my noble friend described? In South Wales rust coloured water is flowing into the River Taff down into Cardiff. Who will be responsible for the situation once British Coal is no more? Will the private owners pay to pump out the water or will the Government pay? The matter does not need a review; it needs a decision.
Lord Strathclyde: My Lords, the decision has been made. The Coal Bill, which is before another place and

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will soon come to this House, deals precisely with this aspect. Current abandoned mines will become the responsibility of the new Coal Authority.
Lord Morris of Castle Morris: My Lords, first, will the Minister accept our warmest congratulations if, as I have been told, today is his 34th birthday, and our astonishment that one so young can be so wise? Secondly, given that whenever the build-up of water in closed mine workings takes place gases are forced towards the surface, will the Minister tell the House what the Government are doing about the methane build-up in flooded mines?
Lord Strathclyde: My Lords, I accept the noble Lord's felicitations and his flattery. I hope I can convince him that that wisdom will continue for a long time. British Coal and its successor body, the Coal Authority, will have a specific safety duty, which includes a safety duty concerning methane.
Baroness Nicol: My Lords, I am unclear about the answer which the Minister gave to my noble friend Lord Merlyn-Rees. Is he suggesting that the legislation which is about to be introduced will be retrospective? My noble friend's question related to existing problems which show themselves only long after the closure of the pits.
Lord Strathclyde: My Lords, all the current liabilities of British Coal will be passed to the successor body.
Lord Dormand of Easington: My Lords, is the Minister aware that my disappointment is based largely on the lack of urgency in the replies that he has given, not only to me but to my noble friends? All the pits in Durham and in the North East are closed and therefore it cannot be long, before a decision must be made. Furthermore, is the Minister aware that County Durham had more than 203 pits in operation? Those workings still exist and in some cases they are linked. Therefore, flooding and pollution are a major issue and I hope that the Minister will take a more urgent view.
Lord Strathclyde: My Lords, it is not a question of lack of urgency; the matter becomes urgent only if the pumps are to be shut down. There is no evidence to suggest that that is to take place. That, quite properly, is a decision for British Coal to take after consultation with the NRA.

Police and Magistrates' Courts Bill [H.L.]
3.5 p.m.
Viscount Ullswater: My Lords, on behalf of my noble friend Lord Ferrers, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. — (Viscount Ullswater.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
Clause 62 [Alteration of magistrates' courts committee areas]:
Lord Mottistone Lord Mottistone moved Amendment No.144:
Page 30, line 23, at beginning insert ("Subject to the provisions of subsection (4) below").
The noble Lord said: I begin with a general statement which applies to this and associated amendments and to several others. I wish to ask my noble and learned friend the Lord Chancellor whether the compulsory amalgamation of magistrates' courts committees is really necessary. Is there real evidence that it will bring about increased efficiency and economy? Why not wait for a few years for reports from the inspectorate? The Le Vay Report was always suspect for the reasons that I gave on Second Reading. It is from that that the amendments stem. Is the halving of the number of magistrates' courts committees from about 120 to about 60 worth the inefficiencies that will be caused, certainly to begin with?
Amendment No.144 is a paving amendment for Amendment No.147. That amendment seeks to invite my noble and learned friend to await hard evidence of the need on the lines that I have given. Paragraph (c) of the amendment seeks to ensure that island magistrates' courts committees are fully safeguarded against unnecessary merger.
The amendments standing in the name: of the noble and learned Lord, Lord Ackner, and the noble Viscount, Lord Tenby, provide an alternative safeguard which may commend itself to the Committee. Indeed, it commends itself to me. It is reasonable that my noble and learned friend the Lord Chancellor should have two options.
During the past few years my noble and learned friend has had experience of voluntary amalgamations. Will he not trust the magistrates' courts committees to propose further amalgamations if, from experience, they find that these are both feasible and an improvement? The memorandum from the Lord Chancellor's Department to the Delegated Powers Scrutiny Committee indicated a definite lack of trust of the magistrates' courts committees in this respect.
I remind my noble and learned friend that the Local Government Commission studied the problem of the Isle of Wight and its unitary authority. In doing so in great depth, it recommended that the Isle of Wight magistrates' court committee should remain separate. I mention that because Members of the Committee will understand that I have to the fore the well-being of the administration of magistrates in the Isle of Wight. However, in general terms, I believe that my remarks require consideration. It will be more in the understanding of the Committee if my noble and learned friend were to take a step back and ask,"Why rush this just because some time ago a body stated that there ought to be a change?".
In my view, the most important step that my noble and learned friend is taking is to introduce the inspectorate. I shall have more to say about that on the relevant clause. The inspectorate has been in existence for only a very short time. It cannot be said to have gathered the detail of what is needed in order to make sure that the magistrates' courts are run as efficiently

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and effectively as possible. When it has that information, it should be a really important and useful arm on which my noble and learned friend can lean in order to determine whether the proposed changes are really necessary.
Finally, Amendment No.153 is consequential on Amendment No.146 and is of no more importance than that. I beg to move.
Lord Ackner: Amendments Nos.145 to 151 are included in this grouping and in due course I shall seek to move Amendment No.145 which stands in my name and that of my noble friend Lord Tenby.
Clause 62 as drafted allows the amalgamation of magistrates' courts committees at the instance of the committees which are involved. However, it goes on to state that that may be done also at the direction of the Lord Chancellor. It is to the latter provision that the amendments are directed.
All concerned wish to see effective utilisation of resources which occasionally necessitates a combination of magistrates' courts committees. But a balance must be held between economies of scale and the maintenance of the local nature of the committees. My noble and learned friend the Lord Chancellor said as recently as the beginning of this month in a written statement that the Government are committed totally to a local magistrates' courts service. We submit that the balance is for the committee to decide, subject to default powers which are to be found in Amendment No.208 and in the proposed clause to be added after Clause 80.
The magistrates' courts committees are entrusted with selecting the budget and providing strategy. It is our submission that the Lord Chancellor has sufficient controls to ensure that the committees do not act in any profligate way. There are at least three ways in which that control can be exercised. The first, and probably the most vigorous, is the discipline of financial constraints. I did not appreciate until I read about it recently how tough are those constraints. In 1992 cash limited grants were brought into existence and those grants, on which the courts committees depend for their budgets, are based largely upon the average cost per case, the number of cases dealt with per hour, and the efficiencies of fine enforcement and the measure and extent of delay. That prompted Mr. Green, a magistrates' clerk, referred to frequently in an excellent book now in your Lordships' Library called Managing Criminal Justice, to say:
"The product of justice is becoming increasingly disregarded, the budgetary rewards going to the courts with the efficiency of a sausage-making machine".
That should not sound entirely quixotic because on 23rd January there was an article in the Observer, the subject also of a leading article, headed:
"Cash outweighs scales of justice".
The article commented on a course organised by the Lord Chancellor's Department where the emphasis was placed emphatically upon the need to ensure the most efficient through-put of cases which could be organised. So financial constraints are the first point.
Secondly, there is the work of the inspectorate. That will be the subject matter of discussions in the course of our debates on the Bill. Thirdly, Members of the
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Committee will see in Clause 81 how the Audit Commission comes on to the scene and how it can, when called upon to do so, provide the appropriate advice on financial matters. In addition, Clause 67(3) allows the Lord Chancellor to require any committee to produce a business case identifying the options of remaining independent or combining or sharing resources with another committee and setting out the advantages and disadvantages of each. That approach maintains local responsibility but it enables the Lord Chancellor to ensure that the issue is considered. Now that magistrates' courts committees are likely to be chosen essentially on their managerial competence, if there is a sound business case for combination it is likely that the committees will adopt it.
Where it is demonstrated that the management is failing properly to discharge its responsibilities, the Lord Chancellor may, under the powers included in the proposed new clause after Clause 80, direct amalgamation if that is necessary to prevent a future failure by the local management.
It is our submission that by providing the Lord Chancellor with power to direct a combination against the wishes of the MCCs involved, and where there is no indication of an inadequate use of resources, responsibility is removed from the committee, where it should be, and vested in Whitehall where it should be only as a matter of the very last resort. Therefore, the power is unnecessary. I wish to move my amendment in due course; at this stage I merely wish to outline its substance.
3.15 p.m.
Viscount Tenby: I support the amendments spoken to by my noble and learned friend Lord Ackner. The purpose of Clause 62 is to enable the Lord Chancellor to combine magistrates' courts committee areas, either as the result of approaches made to him or— and this is the main point of contention— of his own volition. As the noble and learned Lord has indicated, the main purpose is to reduce the present 105 magistrates' courts committees to a total of between 50 and 60. However, I believe that it is only individual magistrates' courts committees which will possess the necessary local knowledge to be able to evaluate whether such a step is desirable. In some instances, amalgamation may be unnecessary. A sharing of resources for training or the use of technology systems may prove an effective option.
If the proposal is harnessed to the bandwagon of cost-effectiveness and economies in the service, the noble and learned Lord the Lord Chancellor already has two powerful weapons at his disposal— cash limitation on budgets, and the assessments of the new inspectorate, whose establishment, I believe, we all welcome. In any event, I do not believe that any amalgamation, as my noble and learned friend said, should be contemplated before a costed business plan has been shown to stand up to critical scrutiny.
The whole point about the magistracy is that it meets the needs of local communities or it is nothing— something which has been pretty well true since 1361. MCC areas are disparate in size, in geographical and in

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ethnic profile and indeed in criminal trends as well, and they cannot and should not be controlled centrally within a Whitehall straitjacket by those ignorant of, or unable to accept, regional diversity. What intrigues me about this whittling away of the independence of MCCs and magistrates courts is that it is being done, we are told, in the interests of efficiency and cost effectiveness. Well, I do not think that the magisterial service comes out too badly on either account. I do not have the latest figures at my disposal, but I know that in the year 1988–1989 the overall cost of the criminal justice system was £ 5.7 billion, of which the magisterial service accounted for just £ 236 million. That is £ 236 million for a service which deals with some 90 per cent. of all criminal discosals in this country. Of course, when you add to that the amount collected in fines, I would be very surprised if the service did not, to use the vernacular, wash its face.
Why is it so cheap? Well, of course it is principally because the major participants in it are unpaid. Such an economical way of dispensing justice is the envy of certainly western Europe to the extent that delegations come here to see whether any part of our system can be adapted for their own use. To be fair, successive Lord Chancellors have regularly praised the service and those who work in it, and none more sincerely and gracefully than the noble and learned Lord the Lord Chancellor today. We do not seek this praise but we are nevertheless grateful for it. We would, however, be even more grateful if it was tacitly accepted by Whitehall that in some instances our local knowledge and experience should take precedence over centrally conceived theories and strategies.
Lord Jenkin of Roding: I intervene briefly to say that the outer London magistrates' courts have taken strong objection to the suggestions in the Government's paper that they should be amalgamated into three groups. Happily, however, I think that they have gone a long way to persuade my noble and learned friend that this need not happen. There is no amendment dealing with the outer London magistrates' courts on the Marshalled List for the good reason that the discussions with my noble and learned friend are continuing. Indeed, on Friday cf this week the first meeting of a joint working party is to be held with a view to removing the remaining differences that may exist between the department of my noble and learned friend and the outer London magistrates' courts committees. I hope that by the time we reach the Report stage my noble and learned friend will be able to say something about this. Perhaps it might be helpful at that stage if I were to give him a vehicle in the form of an amendment which might enable him to do that. I understand that that might require amendments to the Bill and that it might be necessary for those amendments to be made to the Bill in another place. For my part I do not mind where they are made so long as they are made. I hope that that agreement will be reached so that the concerns of the outer London magistrates' courts committees can be met.
Lord Renton: Following from what my noble friend Lord Jenkin has just said,1 think it would be very
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helpful if my noble and learned friend the Lord Chancellor finds himself able to give some indication at this stage as to the possibilities that might arise.
Lord McIntosh of Haringey: Everyone who has ever attended the out-patients department at a hospital will know that the time of the consultant is infinitely valuable and the time of the patient is infinitely worthless. Patients are summoned to make absolutely certain that no consultant is kept waiting for a split second, however long the patients may have to wait. I urge this analogy on the noble and learned Lord when he is looking at the costs of the magistrates' courts service. Of course it is entirely proper that the department of the noble and learned Lord the Lord Chancellor should seek the utmost efficiency in the working of the courts service, and that it should seek to eradicate financial extravagance and waste and find ways of cutting costs wherever possible. However, there are other costs which should be taken into account. There are the costs of the magistrates themselves, of the witnesses, of the police and of the defendants in attending courts. Where the courts are genuinely local, they provide— as the noble Viscount, Lord Tenby, has rightly said— a better quality of service because they are local and because they are accessible to the people who have to use them. Those who propose amalgamations with the justification of cutting costs rather than for any other reason ought to bear in mind the costs perhaps not to the public exchequer but to the public in general which would be involved in larger court areas. I hope that the noble and learned Lord will bear that in mind when he responds to these groups of amendments.
There are, of course, two groups of amendments in the same grouping which seek to do the same thing. One group comprises the three amendments in the name of the noble Lord, Lord Mottistone, and the other group comprises the larger group of amendments in the name of the noble and learned Lord, Lord Ackner. One of the amendments of the noble Lord, Lord Mottistone, has its charms but it runs the risk of hybridity by protecting the Isle of Wight, of all magistrates' courts, from amalgamation by stating that it will not be amalgamated if it is not connected by road with any other magistrates' courts committee area. Despite that charm, on the whole I believe the group of amendments in the name of the noble and learned Lord, Lord Ackner, is better thought out and better drafted and has a more comprehensive and defensible default provision in the new clause to be inserted after Clause 80. Of the two I hope it s the latter group which achieves the agreement of the Committee.
What we have to ask ourselves is under what circumstances other than saving costs and the cases of default provided for in the new clause in Amendment No.208 does the department of the noble and learned Lord the Lord Chancellor need to justify proceeding with an amalgamation without the agreement of the magistrates' courts committees themselves. That is the crux of the matter. Almost all the cases in which amalgamation is going to be genuinely justified will surely be put forward by the magistrates' courts committees themselves because they will understand the local conditions. It is the centralising power of giving

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the power to initiate amalgamations to the noble and learned Lord the Lord Chancellor which we find difficult to justify. We hope that the noble and learned Lord will, in his response to these amendments, find some way of indicating that he does not want any more than the default powers provided in the new clause.
Lord Wigoder: I normally believe in minding my own business, and my business certainly does not extend to the affairs of Devon and Cornwall; but I know that a conclusion has already been arrived at by the department of the noble and learned Lord the Lord Chancellor that their respective magistrates' courts committees should be amalgamated. This has led the liaison judge for Cornwall to write to me to ask me whether I will look at the matter. He is a man of immaculate judgment and impeccable legal upbringing. I can vouch for that because many years ago he was one of my pupils.
I can see that the department of the noble and learned Lord the Lord Chancellor has a problem in this kind of instance. National criteria were set out in 1991 for the continued existence of magistrates' courts committees. The position is that Cornwall, together with the Scilly Isles, has a case load which is below that of the criteria. It has a budget which is below that of the criteria and it also has a population which is below that of the criteria. However, it has a geographical area which is considerably in advance of the national criteria.
The proposal put forward by the Lord Chancellor's Department that Cornwall should now be amalgamated with Devon leads to precisely the opposite problem. It means that in future the combined case load will be no less than three times that recommended in the criteria; the combined budget will be three times that recommended; the combined population will be twice that recommended; and the area will also be three times that recommended. One would be creating a sizeable authority much in excess of all the criteria that were established only some two years ago.
An argument has been put forward that the boundaries of the new communities should, if possible, be the same as those of the police authorities. That is not an argument which carries much weight on examination. For example, there is one police authority in East and West Sussex yet there are separate magistrates' courts committees. Conversely, there are two police authorities in Staffordshire and Warwickshire but only one combined magistrates' courts committee. Therefore, that is not an argument which would carry very much weight.
I can also understand that considerations of public expenditure might enter into the problem. I appreciate that issues relating to the administration of justice depend rather more and more on public expenditure considerations than on any other consideration. However, so far I have seen no evidence that public expenditure would be in any way reduced by the proposed amalgamation.
The real issue, therefore, is whether one prefers the small or the large option in. relation to magistrates' courts committees. I would much prefer smaller
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committees, particularly where there are considerations of local identity and local pride, and particularly in Devon and Cornwall where geographical and transport considerations make the concept of a very large authority far in excess of the criteria totally indefensible.
I apologise to the Committee for taking the argument from the general to the particular in the case of those two authorities, but that indicates the nature of the problem that we face. It indicates the merits of a proposal such as that of the noble and learned Lord, Lord Ackner, which would not allow the Lord Chancellor's Department to make proposals of this nature unless there were valid reasons for doing so and unless those reasons had the support of the local community.
In those circumstances I hope that the noble and learned Lord will find it possible to meet the points raised in the debate this afternoon.
3.30 p.m.
Baroness Macleod of Borve: Perhaps I may add my support to all those who have already spoken on the amendments. I find myself in agreement with all of them.
I agree entirely with the noble Viscount, Lord Tenby, that the magistrates' courts committees must remain local and be known and trusted by the local people. As my noble friend Lord Mottistone said, we must persuade my noble and learned friend to proceed slowly on this issue. It is very easy to lose the confidence of local people. If they see that there are to be only 50 or 60 magistrates' courts committee throughout the country we shall lose that confidence.
I should also like to echo the words of my noble friend Lord Mottistone and say to my noble and learned friend that the proposals relating to the justices' clerks and the magistrates' courts inspectorate should be put in place if that is what is needed, but nothing should be done at all in respect of the magistrates' courts committees for at least two years, until they have had the opportunity to report back to my noble and learned friend.
Baroness Nicol: I should like briefly to add a few words in support of the noble Viscount, Lord Tenby, in respect of keeping decisions local.
I served for a number of years on a magistrates' courts committee. During that time we endured a number of amalgamations of smaller benches. The agony that we had to go through in order to achieve agreement, even on that scale, was alarming. We achieved it in the end, but that we achieved it without bloodshed was due largely to the fact that we knew the local situation and were able to gain the confidence of the small benches that were being amalgamated and were able to meet all their fears.
I should like to reinforce the point made by two other speakers in relation to the additional costs associated with larger benches. As part of the exercise which we undertook we took into account the extra costs associated with travel by solicitors and witnesses and the cost of prisoners being brought from further away than had perhaps previously been the case. At the end of

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the exercise the total sum involved was very large indeed. I hope that when the calculation is done that aspect will be taken into account.
Baroness Fisher of Rednal: I support what others have said. When we consider amalgamations we have to consider the paying authorities, namely the local authorities which help with the costs. The Government are rn the throes of local government reorganisation. If the noble and learned Lord the Lord Chancellor sets this process of amalgamation in motion before that reorganisation is complete, we shall, if we are not careful, have a constant change in magistrates' courts committees. A committee which is within one local authority's boundaries may in the distant future face changes if the Government take forward boundary commission recommendations.
It is incumbent upon us to remember that the local authorities have to make a contribution. When he replies perhaps the noble and learned Lord the Lord Chancellor will say how that will arise. I am thinking in particular of Birmingham, where I served for a long time. In that region a great many people will have to be moved into other areas. It appears that in Birmingham the cost basis will be higher than receiving authorities are already paying. Therefore it is important that where some magistrates move cut of a local authority area which has too many magistrates in order to build up smaller benches elsewhere the amount which the local authority is charged is given serious consideration.
The Lord Chancellor: I am grateful to all Members of the Committee who have taken part in the debate so far. There are one or two preliminary points that I would like to make before I deal with the subject matter of the amendments.
I am sorry that the noble Lord, Lord Stoddart of Swindon, does not appear to be present at the moment because he made some remarks at Second Reading which I wish to deal with. There is no policy on the part of the Lord Chancellor to get rid of the lay magistracy. The noble Lord, Lord Stoddart of Swindon, for whose interest in these matters I have the greatest respect, suggested that some people in the Lord Chancellor's Department held that view. I do not know of any myself who had that point of view. I took the opportunity of asking the Permanent Secretary; he not only does not hold that point of view but could mention no one who did.
My second point arises out of something that my noble and learned friend Lord Ackner mentioned. The ministerial responsibility for advising Her Majesty on the appointment of magistrates has been with the Lord Chancellor and the Chancellor of the Duchy of Lancaster for a long time. I am glad to say that since I have been in office, and before, the total number of active justices has increased each year. It is sometimes suggested that so many gloomy matters affect the magistracy that that would not be so. There is no doubt that many difficulties affect the obtaining of new magistrates. Notwithstanding those difficulties, I am extremely grateful that this year we had a net gain of 600 over the country as a whole. The total number of magistrates is now over 30,000 for the first time.
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In so far as there has been responsibility to Parliament for the administration of the magistrates' courts, it was previously the responsibility of the Home Secretary. For that reason, I believe that the Lord Chancellor and his department had a good relationship with the magistrates. The Home Secretary. having to deal with the administration aspect, found the position a little more difficult. I was well aware of that factor when, in response to the Le Vay proposals, all the representative bodies in the magistrates' courts area suggested that the responsibility, so far as it was with the Home Secretary, should be moved to the Lord Chancellor. I appreciated that the move might not be altogether without pain, if I may refer to the expression of the noble Baroness, Lady Nicol. Bloodshed I shall come to. I knew that there might be more difficulties. However, one of my guiding principles has been to seek to devise arrangements under which conflict between the Lord Chancellor's Department and magistrates and magistrates' courts is reduced to the absolute minimum, not only now but in the future. I am looking particularly to the future.
As my noble and learned friend Lord Ackner said, one of the responsibilities that I now have is to allocate the national grant to the magistrates' courts. The total sum available from the taxpayer has to be negotiated, obviously, at national level. The House of Commons is the authority for the supply of the magistrates' courts as well as all other public agencies in so far as the resources come from the taxpayer. That responsibility has passed to me. Before the responsibility passed, the Home Secretary had sought to find a basis for distributing that sum according to a formula to which my noble and learned friend Lord Ackner referred in part. The elements of that formula— the aim was that they should be objective— applied to the individual courts' committees. In the past the money had been allocated on the previous year's basis. That was not a particularly fair basis. The formula sought to put the allocation on a more rational, principled and defensible basis. As my noble and learned friend said, people are apt to speak of the formula as though the arrangements of the magistrates' courts were a sausage-making machine. I, of course, and all Members of the Committee are immediately aware that the magistrates' courts service is not of that character; it is quite different. What is not so obvious is how the formula should be changed to take account of that fact.
It is important to have a satisfactory method for fair distribution of the central money between the various magistrates' courts committees. I have said that instead of the formula continuing to take over, there will be a pause. With the service I am examining the various options for improvement of the formula before it proceeds to take over further. However, one of the problems that I face is that at present there are 105 units — magistrates' courts committees. The formula is designed to deal with the allocation of resources between them. The more disparate the units, the more difficult it is to obtain a fair allocation of resources between them. Certainly, an important principle for me is that we should do what we can to have as

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homogeneous a magistrates' courts committee and area as we can. I agree that that is not possible in absolute terms. We have to make the best of what we can.
However, since the noble Lord, Lord Wigoder, referred to the area, let me cite Devon and Cornwall. I have had some specific conference about that area in recent times. Is it better that the decision to allocate money as between Devon and Cornwall should be made in Whitehall, or wherever the Lord Chancellor is— it is not quite in Whitehall— or in Devon and Cornwall? It is said that the Bill is a centralising measure. In my submission to the Committee, it is quite the opposite. It attempts to place the allocation of resources as between local committees at as local a level as possible. I believe that amalgamation is one way of doing that. There may be other ways. That is what I am exploring with the magistrates' courts committees outside London. Is it better that the allocation as between Devon and Cornwall should be made in Devon and Cornwall or in London? One of the points made to me relates to the size of Devon and Cornwall and the journey one has to make if one is in Truro and wishes to reach Exeter. I am not entirely ignorant on that. I have sometimes waited for quite long times in the summer endeavouring to pursue that route for purposes of refreshment. It is quite a journey. But to come to London to discuss those matters is an even greater journey, and Cornwall magistrates' courts committees have found it necessary to make that journey.
National as well as local considerations come into the question of amalgamations. There are powers for magistrates' courts committees to amalgamate, but on the committees' own initiative. It will not surprise the Committee to know that no such amalgamations have taken place. However, I refer to what the noble Baroness, Lady Nicol, said about her experience of the magistrates' courts committees. They have power to amalgamate local benches without the approval of local benches. The noble Baroness explained that in the interests of local justice she has had experience of amalgamating local benches. There was a lot of difficulty but, as she put it, bloodshed was avoided by understanding the local conditions.
I have taken care to make it absolutely plain on the face of the Bill that the Lord Chancellor will not order an amalgamation without fully consulting all interests, including the interests of the paying authorities. I refer to the point made by the noble Baroness, Lady Fisher of Rednal. Those authorities must be consulted: every interested authority is to be consulted. I entirely agree with what she said about the need to have regard to local authority boundaries and the boundaries of other agencies in the criminal justice system in that connection.
Thus I have every confidence in local magistrates' courts committees, as they will be constituted under the Bill. But I believe that there are anxieties such as those of the magistrates' courts committee of which the noble Baroness, Lady Nicol, was a member, about suggested amalgamations at local level which may not at first sight be attractive to individual units. That is obviously what happened.
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On Friday I was in Lincolnshire, speaking to local magistrates— this may accord with the experience of the noble Baroness, Lady Nicol— and a very experienced magistrate said to me that many people involved in an amalgamation before it happened were anxious that it should not happen. But after the amalgamation, they saw its benefit. I entirely accept that that depends on the wisdom with which the amalgamation is conducted. I hope and believe— and this must to some extent have been behind the desire on the part of the service to move to the Lord Chancellor's Department— that the Committee would feel that the Lord Chancellor, in considering such matters, would exercise every possible care.
Perhaps I may illustrate one further example. The Lord Chancellor has the power to appoint a stipendiary magistrate in an area. I have never done that without the consent of the local magistrates. I can do so, but I have not exercised that power. The Committee may take it that if the power is granted, I believe that the spirit of the Bill would show that it should be exercised only with great care in the light of a full consultation with local people and with the business considerations to which the noble Viscount, Lord Tenby, referred.
With great respect to those Members of the Committee who have spoken, I think that it would be a mistake to eliminate the power to initiate from the Lord Chancellor altogether. When I look at the amendments that have been proposed, I believe that they do not do that. The first level of the amendment of the noble and learned Lord, Lord Ackner, puts a veto in the hands of one of the committee. In two committees of 12 members, that would put a veto in the hands of seven members as against 17. The 17 may want something, but with seven against, it would not be possible for the proposal to be passed. I believe that the results and benefits of an amalgamation are not always completely apparent to those who are immersed in the individual units which are under consideration for amalgamation.
The other option that has been mentioned is of default, using the amalgamation power as a remedy for default. There are precedents for that in other areas but none that I know of have actually been used. I suggest to the Committee that to use amalgamation as a remedy for default is about the worst possible atmosphere in which to introduce the amalgamation. The theory must be that at least one of those to be amalgamated is in some kind of default. Surely, for the amalgamation to work, it ought to be seen as a positive advantage to both parties who go into it. In the cases to which the noble Baroness, Lady Nicol, referred, ultimately the various Benches saw the advantage in the union. It may not appear immediately, but eventually it will.
I therefore strongly suggest to the Committee, first, that it is wise to leave the power in the Bill in principle. I am willing to consider any conditions on the exercise of the power that may be reasonable. I do not believe that it is reasonable to make the powers default powers, for the reason that I have just given. I submit that the power should be left to initiate such amalgamations. Secondly, it would be wrong to give' a veto to any of those in the magistrates' courts committee subject to the amalgamation proposal. The power given by the Bill

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would operate in public law, therefore any exercise of it by the Lord Chancellor would be subject to judicial review. Therefore if the Lord Chancellor irrationally concluded that, despite all the local weight of evidence and all the business plans against it, there should be an amalgamation, it would be open to the court to set that decision aside. It is not so easy to see any remedy against an unreasonable majority of one of the committees.
I therefore suggest that the proposal to have amalgamations, far from being a proposal to centralise important decision-making, is quite the opposite. It will bring decision-making to a reasonably local level and that is of particular relevance in relation to areas out of London, but it may apply to other places as well. In my view binding arrangements for the allocation of resources short of amalgamation, if they can be devised, are matters which should very much wish to consider as an alternative to amalgamation in cases where such agreements would be appropriate.
I am anxious to get a structure for the service which will last, which will cause as little friction as possible in the handing out of taxpayers' resources and which will be of benefit to the administration of justice in this country. Of course, I entirely accept that the system is extremely economical in total, largely due to the devotion of the lay magistracy and the nature of the support and co-operation between the lay magistracy and the stipendiaries where they exist. I believe that our lay magistrates, who give their services freely and with a good deal of sati; faction in service to the public, are entitled to the best possible form of management. That is why I believe that the general proposals of the Bill are good, but in particular it is right to have such a power in the management structure.
Lord Wigoder: The noble and learned Lord quite rightly points out that before making an order for amalgamation under Clause 62, he will be obliged by subsection (4) to consult various bodies. The noble and learned Lord obviously has the case of Devon' and Cornwall at his fingertips. It would help the Committee if he were able to tell us, as regards subsection (4) (a) whether he consulted the magistrates. If so, were they for or against amalgamation?
As regards subsection (4) (b), did he consult the magistrates' courts committees? If so, were they for or against amalgamation? As regards subsection (4) (c), did he consult every interested authority and, if so, were they for or against it? As regards any authorities who were in favour, could the noble and learned Lord indicate which interested authorities were in favour of that amalgamation?
The Lord Chancellor: Perhaps I should have said that the Bill's provisions are not yet in place and therefore I am not in a position to exercise any such power at the moment. However, the question enables me to say what I ought to have said earlier. We have sought, in consultation papers over the past two years since the White Paper was issued which preceded the Bill, in raise practical questions about how the proposals or the policy in the White Paper might be adopted.
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We looked at the criteria to which the noble Lord, Lord Wigoder, referred and then came the question: do we give any indication of how those criteria might apply? I had to consider carefully whether it was more dangerous to do so or not to do so. I considered that the right thing for me to do, in the way that I believe the Lord Chancellor ought to conduct these matters, was to indicate in a paper in July the level of consideration that we had been able to give to the matter. The document which we issued, as I made absolutely plain, is purely provisional on the basis of an application of the criteria to the various committees.
If this Bill is passed, then I will start completely afresh so far as amalgamations are concerned. To take Devon and Cornwall, I would wish to consult each of the authorities there before there was any question of an order being made. Anything that has gone before is of no consequence whatsoever in that connection. My general impression at present from those who are involved once they saw the proposal, is that the general feeling in Devon and Cornwall — certainly in Cornwall — is rather against an amalgamation across the various groups that are interested in the magistrates' courts service. I have not taken the matter further than that so far. Therefore I am certainly not saying that that process would ever go ahead. The point I am making is that the consultation must take place before any order is made under these provisions. I would certainly wish to await the provisions becoming statutory before I engaged on the statutory consultations.
4 p.m.
Lord Wigoder: Is the noble and learned Lard saying that the proposal to amalgamate the Devon and Cornwall magistrates' courts committees was made without consultation?
The Lord Chancellor: No proposal has been made to amalgamate Devon and Cornwall except in indicating how far we have got in seeing how the criteria would apply in the various areas. I have spoken with representatives of some of the interests involved, but I have not sought to come to a concluded view, partly because I think it right to have as open a mind on these matters as possible. I made that absolutely plain in the document to which I referred. I simply thought it right to put out our views as they have been reached so far as a result of trying to apply the criteria to the various committees that exist, and to indicate how a number of 50 or 60 might be reached. But I have not sought to reach anything like definite conclusions or to make proposals until the statutory powers to do so exist. At the present moment there is no statutory power for the Lord Chancellor to make a proposal of his own_
Lord Renton: I found the speech of my noble and learned friend the Lord Chancellor very helpful. It was candid and open-minded. The most important point that he made was that, broadly speaking, there should be no amalgamation without consultation. He mentioned of course the possibility of his keeping a reserve power where amalgamation is clearly desirable and perhaps necessary. Even then, the process of consultation could still be applied. That is important.

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However, the noble Lord, Lord Wigoder, had a very important point. Yes, there is scope for amalgamation. There are so many small commissions of the police, but when two very large areas like, for example, Devon and Cornwall, are to be amalgamated, my noble and learned friend should be very cautious indeed.
The other day I was given another example in the outer London area, if it can be so called. It was mentioned to me that an intention was put forward by somebody in the Lord Chancellor's Department that, for example, the commission of police which covers Croydon and all that highly populated part of east Surrey should be amalgamated with the pretty highly populated area around Bromley and Orpington in west Kent. I happen to know those areas well from long ago. I would find that proposal a bit incongruous. Although there is scope for amalgamations, I think that my noble and learned friend would be very wise to bear in mind historical associations, local loyalties and, above all, demographic and geographic factors.
Lord McIntosh of Haringey: We have all been guilty in discussing these amendments and this clause of talking as if the clause were about amalgamations. It is not; it is about alterations. In other words, it envisages the possibility, as do the amendments, that alterations could involve splitting up one magistrates' court area into two as well as the opposite. We should bear that in mind in considering one particular strand which I found extraordinary in the Lord Chancellor's argument. He argued that because the Lord Chancellor's Department has the task of allocating funds between the different magistrates' court committee areas, a larger magistrates' court committee would have devolved upon it the power to allocate funds within its own area, and that was a decentralising rather than a centralising move. If I may say so, that is a quite extraordinary argument. The logic of it is that if one had regional magistrates' courts committees— in other words, if one had 10 rather than 50 or 60— that also would be an even more strongly decentralising process, because one would have regional magistrates' committees taking up a good deal of their time allocating funds between the different parts of their region; and the Lord Chancellor's Department would have a less difficult task than the Lord Chancellor himself described. I do not think that anybody on the ground would see the matter that way. Indeed, if anybody within the area of a magistrates' court committee or the area of a group of magistrates' courts committees thought that they would benefit in the way that the Lord Chancellor suggests, then surely they would be the ones putting forward proposals for amalgamation rather than having it imposed upon them by the Lord Chancellor.
Let us be quite clear about what is proposed in the Bill. Whatever is said about consultation— consultation is, of course, provided for— what is proposed is that the Lord Chancellor's Department shall be able to enforce alteration, amalgamation or division against the advice of those who are consulted. If they were in favour of it, they would propose it themselves and the amendment would provide for that. What is being proposed is a
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forced amalgamation or splitting. That is the crux of the matter. That is the reason why I do not believe that the Lord Chancellor's answer is adequate to the case put by the proposers of the amendment.
Lord Mottistone: Taking Amendment No.144, which I moved in the first place, my amendments really sought to find some way of making the Lord Chancellor wait before he takes action. There is enough evidence to show that if people are to have changes they need to get accustomed to them long before they take effect. Simply having the opportunity to consult without any obligation on the consultation process is probably not adequate for what I seek.
I entirely agree with the noble Lord, Lord McIntosh, about the fact that this process is not decentralising in the eyes of the people on the ground. Let us take the example of my county, which is a very small one, being amalgamated with Hampshire, which is a very big one. Knowing that it is intended by this process to give powers to control local funds to the lead authority, in effect my county council will lose its powers— nobody has ever suggested that it shall not be an independent county— and our possibilities of achieving the right balance of funds from our nearby neighbour will probably, on the whole, be rather less, goodwill though there is between us, if it has too much power over that money. At the moment we co-operate with them in all kinds of ways. I shall not bore the Committee with that fact. However, from our point of view the centralising factor now is what happens afterwards. But in the end there are the arbitrary powers of my noble and learned friend to say,"You are to go together whether you like it or not." When I have read the record of the debate, I shall seek to find another way round that.
I see the shortcomings of my own amendment. It is not for me to speak for the noble and learned Lord, Lord Ackner, who will speak for himself in a moment. However, I believe that there is good will in my noble and learned friend, but that there is a steely underpinning. It is a centralising underpinning, which I do not like. I hope that this Committee will find a way to temper that aspect in such a way that my noble and learned friend has to take more time before he makes any decisions.
The Lord Chancellor: Since we are at Committee stage, I should make it clear that I have no wish to hurry in this matter. I believe that such matters get much better with time. I have no desire to hurry. I am sorry that my noble friend feels that a decision taken between Hampshire and the Isle of Wight is more central than a decision taken in London. That is the point that I am trying to make. People in Hampshire and the Isle of Wight together know a good deal more about the relative merits and needs of Hampshire and the Isle of Wight than I do, much as I admire the Isle of Wight. Possibly I know more about it, thanks to my noble friend, than I do about Hampshire.
However, the fact is that local people know best how the moneys should be divided. That is why I believe that it is a decentralising measure. I agree' that if you go to the lengths described by the noble Lord, Lord McIntosh, you could finish up with one authority, though I doubt

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whether these proposals, properly construed, would allow one to go that distance. The decision would be central only if you can go that distance. But the point is that the decision-making on the allocation of money is not with the centre; it is not with London but with the local units.
What brought me to my feet was the issue of time. I shall not weary the Committee, save to say that I am in no hurry whatever about this matter. I am perfectly content to look at it very carefully and slowly. From my experience of these matters, I agree with the noble Baroness, Lady Nicol, that these amalgamations require great care and attention. If done carefully they can often, as she put it, avoid bloodshed and eventually show a considerable improvement in the locality.
Lord Mottistone: I thank my noble and learned friend for his remarks. Without wishing to offend any of my noble friends from Hampshire, I must say that their understanding, particularly at official level, of what happens on the Isle of Wight is probably less than the understanding in Whitehall. Practically everybody in mainland England knows very little about how to run the Isle of Wight. We have been trying hard with Whitehall for some years and it is beginning to understand some of the problems. I shall not press the matter further at this stage. I shall read what has been said with great care. I shall certainly reserve the right to return at the next stage of the Bill, but at this point I wish to withdraw my amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
Lord Ackner Lord Ackner moved Amendment No.145:
Page 30, line 23, leave out ("Whether or not proposals have") and insert ("If a proposal has").
The noble and learned Lord said: I have already addressed the Chamber in general terms on this amendment. It seems to be common ground between me and my noble and learned friend the Lord Chancellor that a balance has to be held between economies of scale on the one hand and maintenance of the local nature of the committees on the other. The issue between us is, who is to hold the balance?
If there were no available control open to my noble and learned friend ensure that there was no ignoring of economies of scale when it should be the motivating factor, I should understand his urge for further power. But when I addressed the Chamber I drew attention to three, if not more, bases on which the control existed: the discipline of the financial constraints; the work of the inspectorate; the work of the Audit Commission under Section 81, and the operation of Clause 67(3). My noble and learned friend addressed himself to none of those points. Therefore I infer that he accepts that they provide substantial controls; otherwise he would have told the Committee to the contrary.
In addition, we pointed to the default clause which comes in after Clause 80. My noble and learned friend did address himself to that point and said that he thought it would make matters worse. I do not understand how it makes matters worse to operate a default provision which is heavily armoured against perverse decisions by requiring, among other things, a report from Her
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Majesty's— if it is so Chief Inspector, compared with moving in on an amalgamation against the wishes ex hypothesi of the magistrates' courts committee and, more importantly too, where there is no indication of any inadequate use of resources.
In those circumstances, I believe that this is a matter of considerable importance upon which the Committee ought to express its opinion. I beg to move.
Lord Renton: The noble and learned Lord was speaking to Amendment No.145, but necessarily with that amendment goes Amendment No.146. As my noble and learned friend the Lord Chancellor pointed out, and as I understood it, Amendment No.146 imposes a veto on amalgamation. It would have the result that when there are within the same county two magistrates' courts committees, each representing a fairly small area and not a large population, and where there is an obvious case for amalgamation, under Amendment No.146 amalgamation could not take place if the members of the magistrates' courts committee allowed their particular interest and their local pride to step in the way. Is the noble and learned Lord, Lord Ackner, saying therefore that there should be such a veto?
Lord Ackner: No.
Lord McIntosh of Haringey: I am sure that the noble and learned Lord, Lord Ackner, will wish to respond when he puts the amendment to the Vote, as he indicated that he would. But the Chamber has agreed to a grouping for this amendment and has debated this whole series of amendments, as did the noble and learned Lord the Lord Chancellor in his reply to the previous amendment.
When the noble and learned Lord presses Amendment No.145, as I hope he will, I hope that it will be understood that he does so for his other amendments in this group— namely, Amendments Nos.146,148,149,150,151 and 208— but that the withdrawal of Amendment No.144 by the noble Lord, Lord Mottistone, means also that he will not press Amendments Nos.147 or 153.
Lord Elton: As the noble and learned Lord hesitates to rise to answer my noble friend Lord Renton, perhaps I may remind the Committee that the power of one committee to veto a proposal to amalgamate means that it may be one of three committees and it may he by a majority of only one vote of that one committee. So one is giving a veto to a very small proportion of the people interested. I hope that the noble and learned Lord will address that point.
Lord Ackner: The assumption in all the questions is that there will be a measure of perversity in the operations of the representatives of magistrates' courts committees. If such a degree of perversity arises, that is exactly when the default powers can be effectively brought into operation.
The Lord Chancellor: I do not wish to go into this matter again in any detail. However, the benefit of amalgamation may be absolutely apparent without any defaults of any kind in the standards of justice

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administered in a locality. I am sure, to take the bench amalgamations which were referred to by the noble
Baroness, Lady Nicol, that in that case they did not wait until justice had got into a mess in the localities before
they did them. They may have feared that it might have done so, but I am sure that they acted before then.
There is a confusion here. Either these are to be used as default powers, in which case they can only be used if there is a demonstrated failure that has lasted for some time except in cases of great urgency— and I do not think that an amalgamation would be a suitable step to be used in a case of great urgency— or the local committee, one-half with one extra of a local committee, could veto this. I find it very difficult to see
why that could be thought to be better than Leaving the matter in the hands of the Lord Chancellor, subject to
judicial review and also to a very stringent obligation to consult. As I said, I am willing to consider any other safeguards that might be thought wise. But I believe that to give a veto to one of the committees subject to this consideration is really to destroy the whole basic idea.
Lord Ackner: Perhaps I may reply to that. I note again that my noble and learned friend the Lord Chancellor has not addressed himself, although the opportunity existed, to the controls which I have emphasised again and again exist for him to use. I only rise to deal with the point about judicial review. As my noble and learned friend knows as well as I do, judicial review is not a process of appeal. It would have to be established not that the Lord Chancellor's decision was an unsatisfactory one or one which was likely perhaps to be to the disadvantage of the general organisation, but that it was perverse, which means that no Lord Chancellor properly operating his office could have arrived at that decision. That is a degree of protection which is very, very slight in the context of this situation. I shall proceed to press my amendment.
4.22 p.m.
On Question, Whether the said amendment (No.145) shall be agreed to?
Their Lordships divided: Contents,127; Not-Contents,153.

Division No.2

CONTENTS

Acton, L.

Lauderdale, E.

Airedale, L.

Lawrence, L.

Beaumont of Whitley, L.

Mackie of Benshie, L.

[Teller]

Mclntosh of Haringey, L.

Callaghan of Cardiff, L.

McNair, L.

Dormand of Easington, L

Monkswell, L.

Graham of Edmonton, L.

Morris of Castle Morris, L

[Teller.]

Nicol, B.

Grey, E.

Parry, L.

Hampton, L.

Perry of Walton, L.

Hamwee, B.

Pitt of Hampstead, L.

Harris of Greenwich, L.

Rochester, L.

Hollis of Heigham, B.

Russell, E.

Hooson, L.

Shepherd, L.

Howie of Troon, L.

White, B.

Jay of Paddington, B.

Williams of Elvel, L.

Judd, L.

NOT-CONTENTS

Addison, V.

Leigh, L.

Arran, E.

Lindsey and Abingdon, E.

Astor, V.

Long, V.

Blatch, B.

Lucas, L.

Borthwick, L.

Lyell, L.

Brabazon of Tara, L.

Mackay of Ardbrecknish, L.

Braine of Wheatley, L.

Mackay of Clashfern, L. [Lord

Burnham, L.

Chancellor.]

Cadman, L.

McColl of Dulwich, L.

Carnock, L.

Miller of Hendon, B.

Colwyn, L.

Milvetton, L.

Cumberlege, B.

Morris, L.

Dean of Harptree, L.

Moyne, L.

Denton of Wakefield, B.

Palmer, L.

Digby, L.

Pearson of Rannoch, L.

Dixon-Smith, L.

Rankeillour, L.

Dormer, L.

Renton, L.

Ellenborough, L.

Rodger of Earlsferry, L.

Elles, B.

Rodney, L.

Elliott of Morpeth, L.

Selborne, E.

Elton, L.

Sharpies, B.

Faithfull, B.

St. Davids, V.

Ferrers, E.

Strange, B.

Fraser of Carmyllie, L.

Strathmore and Kinghorne, E.

Gainsborough, E.

[Teller]

Gardner of Parkes, B.

Swinton, E.

Gisborough, L.

Thomas of Gwydir, L.

Glenarthur, L.

Tollemache, L.

Goschen, V.

Trumpington, B.

Harmsworth, L.

Tugendhat, L.

Harvington, L.

Ullswater, V. [Teller.]

Hemphill, L.

Vinson, L.

Henley, L.

Wakeham. L. [Lord Privy Seal.]

Howe, E.

Westbury, L.

Jeffreys, L.

Whitelaw, V.

Jenkin of Roding, L.

Wynford, L.

Johnston of Rockport, L.

Young, B.

Keyes, L.

On Question, amendment agreed to.

Resolved in the negative, and amendment disagreed to accordingly.
4.31 p.m.
[Amendments Nos.146 to 151 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.152:
Page 31, line 32, leave out ("district") and insert ("county").
The noble and learned Lord said: This is a drafting amendment. Amendment No.202 in Clause 75 deals with the same matter. it rectifies a mistake in the definition of the meaning of the term "unitary authority". I beg to move.
On Question, amendment agreed to.
[Amendment No.153 not moved.]
Clause 62, as amended, agreed to.
Clause 63 [Constitution of magistrates' courts committees]:
Lord Mottisitone Lord Mottisitone moved Amendment No.154:
Page 32, line 1, leave out ("either").
The noble Lord said: Amendment No.154 is a paving amendment for Amendment No.156, which is the substantive amendment. It is most important for magistrates' courts committees, however constituted, to manage their own affairs, and co-opted members should only he proposed locally, as is the case currently with advisory committees to the Lord Chancellor. I ask my noble and learned friend how the Lord Chancellor can know who best to appoint under subsection (2) (b). He will have to have local advice, and that is always suspect
538
if coming from an unspecified source. Co-opted members should be suggested by the magistrates' courts committee itself, subject to the approval of my noble and learned friend, as is the case with magistrates when they are proposed. That surely is good enough. Therefore, I hope my noble and learned friend will agree that he is giving himself excessive powers in calling for paragraph (b). I beg to move.
The Lord Chancellor: Generally speaking, I agree with what my noble friend has said. However, I would expect this power to be used in only very exceptional circumstances. I have considered quite carefully, in the light of the amendments proposed, whether I should trouble about it, but I think that there might be circumstances in which it would be wise.
Some time ago— I do not wish to be too specific— I encountered a problem which has a bearing on the matter. Under the powers which presently exist for co-opting, the local magistrates' courts committees have power to co-opt a High Court judge, a circuit judge or a county court judge. That power has normally been used, where used, for the purpose of co-opting the liaison judge nominated to be the liaison judge between the senior judiciary and the magistrates in a particular locality. in this case the presiding judges in a particular circuit decided that the appointment of liaison judge should be changed. The person who was liaison judge had ceased to be so for reasons which I need not go into; reasons connected with the other duties that he. had. The local magistrates had known the first judge very well and were extremely reluctant to have the change.
I can see in that kind of situation questions about the relationship between the magistracy and the higher judiciary which might create problems. I would expect this power to be used only very rarely; but I can see some situations in which it would be a desirable power to have in the interests of justice as a whole.
Lord Harris of Greenwich: That is an interesting statement; but I wonder whether the noble and learned Lord recognises, as I am sure he does, that the assurance that he has just given operates as long as he is Lord Chancellor. What we are talking about here is the language of the statute. I wonder whether the noble and learned Lord might consider an appropriate amendment to limit this power to some degree. Although his words are reassuring, his successors may not necessarily adopt the same position as he does.
The Lord Chancellor: I understand what the noble Lord says. The present power to co-opt is rather limited. I am trying to open that up and to give a rather freer power to co-opt. I have tried to see what difficulties there might be. I have no great attachment to wanting to nominate people. On the other hand, I am anxious that I do not do anything which in the long run, in occasional situations, might cause difficulties. I do not know that it is easy to think of limitations. If any Member of the Committee can think of a wise limitation for this purpose, I should certainly want to consider it. I do not think it would be right to restrict it to the particular situation I described, which occurred once. It might be wise to look for something more general. I am happy to

539
consider any suggestions that might be made in that connection. I just think it a little unwise to give up this power altogether.
Lord McIntosh of Haringey: I should have thought that the issue is very readily resolved. All we need is an amendment which says that the Lord Chancellor can nominate to the committee the liaison judge for the time being. If then the local magistrates' courts committee wishes to retain the services of the previous liaison judge, it can use its power of co-option to keep him or her on the committee. The very specific example given by the Lord Chancellor does not seem to justify the very wide powers that are given in the clause.
It may have been my fault in not rising to speak to Amendment No.155, but we have not dealt with the provision in the Bill which proposes that co-options by the magistrates' courts' committee should be subject to the approval of the Lord Chancellor. That is a very serious piece of centralisation and an imposition of the power of the Lord Chancellor and his department on the actual membership of the magistrates' courts' committee. In the light of what the noble and learned Lord has told us, I hope that his reluctance to make appointments to the magistrates' courts' committee will extend to a reluctance to exercise the power which the Bill gives him of approval of co-options by the magistrates' courts' committees themselves.
There is also in the same group the amendment in the name of the noble Lord, Lord Gisborough. But of the alternatives offered, I prefer Amendment No.155 because it also removes the power of approval by the Lord Chancellor for co-option by the magistrates' courts' committee. I shall be interested to have the Lord Chancellor's view both on that power and on my suggestion that it would be perfectly easy to restrict the power of additional appointment to the liaison judge, if that is the only example which the noble and learned Lord can give.
Lord Gisborough: Perhaps it is appropriate to speak about Amendment No.157 at this stage. The Lord Lieutenant normally chairs the advisory committee in the selection of magistrates. It is important that Lords Lieutenant should either sit as magistrates themselves or on the magistrates' courts' committee. At present they are ex-officio members of the magistrates' courts' committee. Some attend regularly— in fact some are chairmen— and others do not attend. Those who do attend see it as a valuable link with the advisory committee which should be maintained. There is to be an appointments' panel set up by regulation to appoint members of the magistrates' courts' committee. It seems particularly important that the Lord Lieutenant should sit on that body partly for that reason and partly to give additional continuity.
Lord Donaldson of Lymington: Perhaps I may ask a question of the noble and learned Lord the Lord Chancellor and thereby, I fear, reveal my total ignorance on this subject. Looking at Clause 63, it seems to me that if the magistrates' courts' committee puts up two very worthy non-justices of the peace to be co-opted
540
members, the Lord Chancellor will be in some difficulty in failing to approve the appointments. He would then be unable to appoint the liaison judge because the total of the co-options, whether by him or by the committee with his approval, is limited to not more than two other members. I cannot believe that that is what he wanted.
The Lord Chancellor: I believe that the total number of co-options is two. Perhaps I may deal with the point made by the noble Lord, Lord McIntosh of Haringey. If the problem arose under these provisions, as it arose in the past, we might well have a situation where the preferred candidate, so far as the magistrates are concerned, is sought to be kept in. I believe that it would be highly undesirable to have two people on the committee at one time who were there by virtue of their position, past and present, as liaison judges. What I anticipate happening is that if the presiding judges of the circuit think that Judge X should do something else inconsistent with continuing as the liaison judge, then the judge comes off the magistrates' courts' committee and the new one goes on in his place. All I am concerned with is to ensure that that can be done smoothly even if there happens to be some friction. I believe that the ultimate decision on that matter should not be left to the magistrates' courts' committee.
As I said, I am very willing to consider the matter. I am not sure that the problem would arise only in relation to liaison judges. Naturally, I have had some experience of personnel problems from time to time at magistrates' courts. It may be that the Lord Chancellor has reason for thinking that someone should not be a member of the magistrates' courts committee and is able to give the committee that reason and so inform it better of the situation. If his consent is not required, there is no need to bring any appointment to his attention. As I said, I believe that these powers will be required only in very exceptional circumstances, but I doubt whether it is an improvement to abolish them altogether.
4.45 p.m.
Lord Donaldson of Lymington: I am puzzled as to whether there is a power to remove. If the two nominee spaces have been taken up, then, unless one of them happens to be a liaison judge who perhaps could be influenced into retiring, and if the power is not there, I do not see how it can be used.
The Lord Chancellor: It is possible to arrange the terms and conditions under regulations. I would anticipate that somebody is co-opted for a period. It may well be that they should be co-opted so long as they have an appointment as a liaison judge. That would be perfectly reasonable. I put it no higher than this: it could give rise to difficulties if the local magistrates felt that they should adhere to the former liaison judge and the higher judiciary thought differently. Differences of opinion of that kind have emerged, but not often. Sometimes steps can be taken to prevent such developments but I have had at least one experience of it happening.
Lord McIntosh of Haringey: It is still a very broad power for a very specific and perceived problem. I know

541
that the Lord Chancellor will be open to suggestions between now and a later stage as well as across the Floor of the Chamber. Surely, the matter could be dealt with by saying that the Lord Chancellor can appoint the liaison judge for the time being— in other words, while he is the liaison judge— and that problems about the quality of the membership of the magistrates' courts' committee, like any problems about a police authority or local authority, are really those of the committee or the authority rather than of the Lord Chancellor. Any default powers which he needs should be dealt with through powers of removal of those who are unfit in certain specific circumstances. That is what is done in police authorities. Surely, that is the right way to proceed in this case.
A problem about membership of the magistrates' courts committee is not the Lord Chancellor's problem; it is the committee 's. I suggest to the Lord Chancellor that he talks with those putting forward these amendments between now and Report stage about restricting the powers of appointment to the liaison judge for the time being and for adding to the Bill such safeguards as he believes necessary for removal of those who are unsuitable or unfit.
Lord Digby: As Amendment No.157 has been grouped with this amendment, I wish to support my noble friend. I believe that his amendment is defective in that he speaks about Lords Lieutenant, when he should talk about Custos Rotulorum. However, that does not really matter in the 1979 Act where reference is made to a Keeper of the Rolls. It is merely that we would like that section to be left in. The Custos Rotulorum is the chief magistrate and as such has a traditional responsibility for the magistrates' courts. I appreciate that the intention of the reduction in the size of the magistrates' courts' committees is that members should not be delegates of their benches and I certainly support that object. But magistrates are human. The vast majority have great pride and intense loyalty to their own bench and its way of working. In my county, that loyalty is very masked and is quite different in the different petty sessional areas. They have different ways of working. Each is convinced that its methods are conducive to the highest level of justice. Feelings run deep.
My position as chairman of the Dorset magistrates' courts committee has been the most difficult and worrying of all my duties. I have tried to resign every year, but have been persuaded to remain by all the chairmen of the different benches because they believe that the Keeper of the Rolls, by virtue of his office, can consider the problems from a county-wide perspective without local prejudice. I must tell the Committee that many members are prepared to accept guidance from the Keeper of the Rolls which they might not accept from the chairmen of the different benches. Therefore, I think that there is an argument to keep the Keeper of the Rolls on the magistrates' courts committee.
Lord Simon of Glaisdale: Perhaps I may make a general observation which arises clearly from this amendment but applies also to a great many other amendments. This is widely felt to be a centralizing
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measure, so it calls for caution. Perhaps I may suggest that we should show great caution in granting very wide general powers to central government because they might be needed, to adopt my noble and learned friend's phrase, in some very rare and unusual circumstances.
Viscount Ridley: As the Lords Lieutenant are mentioned in this group of amendments, perhaps I may ask the noble and learned Lord the Lord Chancellor whether there is any intention of interfering with the Lords Lieutenant's advisory committee which appoints magistrates. That seems to be about the only thing that is not being dug up to see how the roots are doing. I hope very much that this system, which I believe has worked very well, will be allowed to continue without interruption.
The Lord Chancellor: I was seeking to explain that the Bill deals basically with the responsibilities which, as far as the magistrates' courts are concerned, ministerially rested with the Home Secretary until 1st April 1992. Therefore, it has nothing to do with the arrangements for the appointment of magistrates. As I mentioned earlier, those arrangements appear to me to be working extremely well. The Lords Lieutenant have been at the centre of the local administration of the advisory committees which nominate magistrates to me. Almost without exception, those nominations have been extremely valuable and acceptable. There is no intention whatever of interfering with that in any way.
The intention of the Bill in relation to the magistrates' courts committees is to make them responsible for the management of the local magistrates' courts service so that they will, in effect, be the responsible authority for that within the locality. We intend to provide that the Lords Lieutenant will have the right to attend any magistrates' courts committee. The same applies for the liaison judge. As my noble friends have said, some Lords Lieutenant attend; others do not. It depends a great deal on their inclination and skills.
I believe that it is important that a group with management responsibility should not be too large. That view has been generally endorsed by the service in the consultations that we have carried out. Twelve is thought to be about right. We shall discuss an amendment later relating to the minimum number. Therefore, the question is whether a seat on the magistrates' courts committee should automatically be reserved for the Lord Lieutenant. In fact, in theory, the Lord Chancellor could appoint as Keeper of the Rolls someone other than the Lord Lieutenant; so including the Keeper of the Rolls would not oust a nomination from the Lord Chancellor, which is something to which some object, but that has usually been so.
The reason that I have not automatically provided a seat on the committee for the Lord Lieutenant is that I think that an effective management committee should be small. Where a Lord Lieutenant is interested in that aspect of a magistrates' courts committee, he may be elected as a magistrate because normally the Lord Lieutenant is a magistrate and will therefore be elected by his fellow magistrates in accordance with the

543
arrangements. If they feel that that is not the best way to proceed, they could co-opt the Lord Lieutenant as a member of the committee.
I felt that providing automatic membership for a Lord Lieutenant was not the wisest course. My noble friends will know that we have had some correspondence about this with the Lords Lieutenant, and some of my officials met the Lords Lieutenant as a body. I certainly had the impression that, speaking generally, the arrangement that we were proposing was reasonably acceptable. We are leaving it as a local arrangement. If the Lord Lieutenant is interested, it is likely that he will be appointed to the committee either as a co-opted member or by the election procedure. If the Lord Lieutenant was not interested, it would be a pity if he were to take up a place which might otherwise be occupied. That is the thinking behind the present arrangement. I think that we have taken proper account of the position of the Lords Lieutenant.
Lord Mottistone: We are speaking mainly to Amendment No.154 at this stage. I must confess that I think that my noble and learned friend's persistence in wanting to have the facility to appoint co-opted members— presumably one or two, because it cannot be more than two according to what is stated earlier in the clause— is something that he might like to reconsider. We might find some machinery or a way of describing this (perhaps on the lines suggested by the noble Lord, Lord McIntosh) that might help to deal with the sort of point that we have been discussing.
It is all very well to say that one wants a small magistrates' court committee of only 12 members. I cannot remember exactly, but my committee comprises about that number for dealing with what is probably the smallest bench in the country. It is by no means the case that members always attend. We have extra people from the county council who attend although they are not members of the committee. That is the way that we manage ourselves efficiently and is something of-which my noble and learned friend might like to take note.
The numbers are not particularly important. It seems reasonable that there should be an arrangement for the liaison judge (whether or not appointed by the court or, within the terms of the Bill, in some other way) to be an ex officio member. I should have thought that my noble friends who are Lords Lieutenant and who are pressing for the Keeper of the Rolls to continue (as is the position under the terms of Section 20(3) of the 1979 Act) also had a point. As has been said, some Lords Lieutenant will not attend. Indeed, some who are responsible for large areas cannot attend all the magistrates' courts committees with which they have to deal. Therefore, it is probably a mistake to be too rigid about the numbers.
It would be a good thing to have ex officio members who would probably not turn up at every meeting, particularly if they are called ex officio members. However, that would be a flexible way of ensuring that, where it is available, such expertise can be called upon.
I have never been asked by my magistrates' courts committee to chair it because it has always elected substantial, important and capable chairmen. They are
544
usually businessmen who are capable of dealing with such matters much more so than I. However, my noble friend Lord Digby said that he has been asked and it is proper that other people should be asked too. But he will not necessarily be asked if he is not an ex officio or automatic member, as has been the practice since 1979 and I suspect long before that.
I do not propose to press Amendment No.154. However, I should like my noble and learned friend to think carefully about his attitude to the issue of having his own appointing authority within paragraph (b). I shall certainly think about a way of wording an amendment so as to take care of what he said, probably on the lines suggested by the noble Lord, Lord McIntosh. Perhaps we can produce an amendment which will appeal more to my noble and learned friend when we reach the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.155 and 156 not moved.]
Lord Gisborough Lord Gisborough had given notice of his intention to move Amendment No.157:
Page 32, line 5, at end insert:
("() The Lord Lieutenant for the area to which a magistrates' courts committee relates shall by virtue of his office be a member of that committee.").
The noble Lord said: I am grateful to my noble and learned friend for his explanation. Clearly, this is not an issue to pursue and I shall not move my amendment.
(Amendment No.157 not moved.]
Clause 63 agreed to.
5 p.m.
Clause 64 [Regulations as to constitution etc. of magistrates' courts committees]:
Lord Mottistone Lord Mottistone moved Amendment No.158:
Page 32, line 25, leave out from ("by") to end of line 26 and insert ("vote of the Benches as a whole").
The noble Lord said: I seek to remove the awful selection panel provision. Members of the magistrates' courts committee are elected by the bench as a whole from those JPs who volunteer. That works very successfully and I do not see that a selection panel will improve on that. More importantly, it will remove important responsibility from the bench as a whole in an area to which it attaches great importance. Of all the various committees to which members of my bench elect members, they take particular care to elect those whom they think most suitable to administer the affairs in the county, on behalf of the bench. It takes particular care to elect the best possible people. Therefore, we normally have as members people who are experienced in business and training and in various other areas which are particularly relevant. There are usually members who serve on the police authority, which provides a useful link. That is done by the bench as a whole and it is proud of it.
The unnecessary removal of responsibility from local bodies, in general let alone in this case, can contribute only to the reluctance of valuable people to serve in such office. In this and the earlier part cif the Bill, I am plugging to my noble and learned friend and my noble friend Lord Ferrers the fact that central government are

545
playing with fire in taking away responsibilities from local bodies. They are discouraging the good people from serving on those bodies. There has been a definite move away of good people from local authorities, which have become more party political, to the bench and the bench has benefited from that. But if one removes responsibilities from the benches people will instead devote their attention to worthy charities and the like. Local administration will suffer as a result.
I find the arguments in the memo on Clause 64 from the Lord Chancellor's Department to the Delegated Powers Scrutiny Committee most unconvincing. They have an air of self-importance that I do not like. The existing powers given to the Lord Chancellor in Clause 21 of the 1979 Act are wholly adequate. The existing subsection (2) does not require replacement, hence the need for my Amendment No.159. I beg to move.
Lord McIntosh of Haringey: I have agreed to the grouping of my Amendment No.160 with these two amendments. Amendment No.158 provides that there should be no fewer than 12 members of a magistrates' courts committee and that has the support of the Magistrates' Courts Consultative Council. It has devoted a great deal of debate to this matter and has reached the conclusion that such a minimum number is necessary in order to achieve a representation from as wide a base as possible while keeping the committee at a workable size.
The Lord Chancellor: This grouping of amendments covers two different points. Perhaps, first, I may deal with that made by my noble friend Lord Mottistone relating to the method by which the members of the magistrates' court committee are selected. I am sorry that my noble friend considered that the wording of the memorandum to the Delegated Powers Scrutiny Committee was self-important. It certainly was not intended to be. It is important, right enough, but that is a different matter!
My noble friend's amendment would not work in respect of a good number of magistrates' courts committees because there are a number of benches. He has the great advantage that in the Isle of Wight there is only one bench to consider. However, in many of the magistrates' courts committee areas there is more than one bench and an amendment which provides that the matter shall be dealt with by the bench as a whole is not appropriate.
We consulted fully on the matter and put forward the options of an elected committee elected directly by the bench or a panel of the bench which selected people to serve on the committee. There is also the fact that for effective management in this area it is important that people are not seen too much as being representatives of particular interests but rather as working together to manage the service z. s a whole in the area for which they have responsibility. In our pure election arrangement, there is no mechanism for ensuring that the necessary mix of skills is represented.
We did not wish to go forward on this issue without consulting the service and we put those options to the service in a consultation paper. Of the 71 respondents to the consultation paper who expressed an opinion,50favoured the selection procedure proposed in the Bill and only 21
546
favoured the election procedure suggested by this amendment. It is notable that that majority of 50 included the representative bodies of all those who work and serve in the magistrates courts service— the Justices' Clerks' Society, the Association of Magisterial Officers, the Standing Conference of Clerks to Magistrates' Courts Committees and the Magistrates' Association.
The second of the amendments is consequential on that and I need not deal with it separately.
The amendment in the name of the noble Lord, Lord McIntosh of Haringey, seeks to put a statutory lower limit of 12 on the size of magistrates' courts committees. In addition, it would provide that, for the purposes of that minimum number, co-opted and appointed members would not count as committee members. Although the Bill as it stands allows the Lord Chancellor to regulate both upper and lower limits on the number of committee members, it had not been my intention to set a lower limit. The upper limit was, until recently,35; it is now, for a transitional period, set at 20, and I have announced my intention to reduce this further, to 12. The service's representative bodies have agreed, in its Alternative Framework, that the upper limit which I propose will permit committees to operate efficiently and effectively. I am content to leave the lower limit to the local committees to decide. Indeed if it helps the noble Lord, Lord McIntosh of Haringey, I should be willing to consider deleting altogether the power to set a lower limit. That may not entirely suit his purpose but it seems to me that that matter could be left to local control. However, it is important not to have too large a committee.
For the reasons given, the system proposed by my noble friend would not work generally and a different system is required. The system proposed in the Bill was favoured by the vast majority of those working in the service whom we consulted. I can see attractions in the different systems but we put forward this system as a result of consultation. As regards the amendment in the name of the noble Lord, Lord McIntosh, perhaps I may meet the points that he makes in the way that I suggested.
Lord McIntosh of Haringey: I should like to think about the offer made by the noble and learned Lord, the Lord Chancellor. I shall seek the views of the Magistrates' Courts Consultative Committee. Therefore, I do not intend to press the amendment to a Division.
Lord Mottistone: I thank my noble friend for his remarks and for explaining why new subsection (1A) is to be inserted after subsection (1) of Section 21 of the 1979 Act. In view of what my noble and learned friend said, I wonder whether the matter needs to be so comprehensive. I admit that the majority of people agreed but on earlier amendment, people were rather scornful about majority opinions. Would my noble and learned friend find it acceptable to have the option of an MCC elected by a Bench, if it so wished, or a selection panel if the organisation were larger? That may be a way

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through. I do not know whether my noble and learned friend wishes to respond to that or whether he will leave me to think about it in the meantime.
The Lord Chancellor: I am always content to leave my noble friend to think about matters in the meantime, but I am willing to consider that possibility. A degree of uniformity is desirable but it may not be essential. Therefore, I am happy to consider whether we may accommodate my noble friend in that respect.
Lord Mottistone: I thank my noble and learned friend and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.159 and 160 not moved].
Clause 64 agreed to.
Clause 65 [Supplementary provisions as to magistrates' courts committees].
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): I should point out that, if this amendment is agreed to, I should not be able to call Amendment No.162 in the name of the noble and learned Lord the Lord Chancellor.
Lord Mottistone Lord Mottistone moved Amendment No.161:
Page 33, line 1, leave out from beginning to end of line 20.
The noble Lord said: I see no need for the bulk of the amendments to Section 22 of the 1979 Act. That is why I seek to remove them. However, there is some merit in new subsections (8) to (11). That is why I have not sought to remove them. Furthermore, I welcome Amendment No.162 and I have no intention of not allowing it to be called.
A great deal of tinkering about is being done to the 1979 Act. That Act has worked well and it has given my noble and learned friend and his predecessors quite a lot of authority to manage magistrates' courts, in so far as that is necessary. In many cases, the provisions now go too far. For that reason, I ask my noble and learned friend to consider whether he needs all the proposed new powers in Section 22 or whether something less than that would be sufficient. I beg to move.
The Lord Chancellor: I shall speak to my Amendment No.162 when we come to it as it is not formally grouped with this amendment. However, I am glad that my noble friend welcomes it.
The provisions that he wishes to remove from the Bill are necessary. It is important to provide for the election of a chairman. The difficulty is that the inner London arrangements have always been rather different in some respects from the other provisions and it is necessary to include a special provision for London; that is, the provision which makes the chief metropolitan stipendiary magistrate chairman for the transitional period.
The third amendment would have the effect of preserving the provision that, in committee areas that are not divided into Petty Sessional Divisions so that they only have one justices' clerk, the justices' clerk shall act as clerk to the committee. Apart from metropolitan committees and committees for boroughs in outer London, the Isle of Wight is the only committee
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in that position. Clerks to such committees are catered for by virtue of the new subsection (8) of Section 24D, which is inserted by Clause 68. Provision is made by the new Section 24(E), subsections (1) and (2), for the chief justices' clerk to act as clerk of the committee and for him to be able to delegate this function to a member of staff. The new provisions give much greater flexibility and local discretion to the committees than the provision which my noble friend seeks to preserve.
The other subsections which the amendment would remove are to provide that committees can act through sub-committees which include people who are not members of the magistrates' courts committee, which gives flexibility, and that committees can delegate any of their functions to either the chairman or the chief justices' clerk. Those provisions are permissive, and are designed to give magistrates' courts committees the greatest possible flexibility in managing the service for which they are responsible, and will, I believe, be regarded by committees as helpful.
To seek to remove the provisions is a retrograde step, and I am glad that my noble friend indicated that he would not press the amendment.
Lord Mottistone: I thank my noble friend for that explanation, which I shall read with care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No.162:
Page 33, line 4, leave out from ("committee") to end of line 6.
The noble and learned Lord said: Amendment No.162 removes from the Bill the need for the magistrates' court committees choice of chairman to be approved by the Lord Chancellor. It makes it plain that the Government are committed to the local management of the magistrates' courts; committees will continue to be free, as at present, to appoint their own chairmen.
The provision which is being deleted was foreshadowed in the White Paper of April 1992 and had the intention of linking the Lord Chancellor as responsible to Parliament for the magistrates' courts with those responsible for the local management. The important thing is that the justice system in the magistrates' courts should be locally managed.
Having listened to what was said in the Chamber on Second Reading, and having discussed the matter fully with delegates of the national organisations representing those who work and serve in the magistrates' courts service, I concluded that while some people thought it was good to obtain an approval from the Lord Chancellor, other people thought they might do just as well without it. As that was the general attitude, I felt on the whole it was wise to take out this provision. I beg to move.
On Question, amendment agreed to.
Clause 65, as amended, agreed to.
Clause 66 [General powers and duties of magistrates' courts committees]:
Lord Swinfen Lord Swinfen moved Amendment No.163:
Page 33, line 40, at end insert ("including having regard to the needs of disabled people.").
The noble Lord said: In moving Amendment No.163 I wish to speak also to Amendments Nos.166 and 167.

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I wish to start by conveying the apologies of the noble Lord, Lord Ashley of Stoke, who had intended to be here to support these three amendments, but unfortunately with: he change of business he was unable to do so.
Amendment No.163 is designed to ensure that magistrates' courts committees will have a proper regard to the needs of people with disabilities. Amendments Nos.166 and 167 are intended to ensure that the directions of the noble and learned Lord the Lord Chancellor to magistrates' courts committees requiring them to meet specific standards of performance would include specific standards relating to disabled people. For disabled people there are many problems relating to access to the courts. This situation applies to people with physical disabilities, sensory disabilities and learning disabilities. They can be required in court as witnesses, defendants, jurors, justices of the peace, lawyers or indeed as relatives or friends of the defendant.
I understand that the current position is that all new courthouses, and existing courthouses that are undergoing significant alteration or extension, must comply with part M of the building regulations— that part of the building regulations deals with access to public buildings. The Home Office guide on magistrates' courts design has a section on access for disabled people which refers to part M as mandatory in the guidance for new court buildings. That section gives some extra guidance on courtroom design. There are, however, some 640 magistrates' courthouses and only between four and six new ones are built each year. Many of the recommendations made by the Access Committee for England were not included in the Home Office design guide. One of the recommendations that was not taken into account was that when assessing whether there is a need for a new courthouse, access for disabled people to the existing one should be taken into account.
The Access Committee for England has a working party which is looking at access to court buildings and it has found that the majority are not accessible to disabled people. It has also found evidence that part M of the building regulations has been waived when court refurbishment has taken place. In January last year when the courthouse at Selby in Yorkshire was undergoing refurbishment, the county council architects submitted a scheme that would have provided full access for disabled people. The scheme was turned down, however, in favour of one which gave only limited access, with special arrangements for people with disabilities being made on advance notice. This means that there is no access for disabled magistrates to courtroom No.1 and that the second courtroom remains inaccessible. There i3 no induction loop system for those with hearing difficulties.
Another example can be found in Tunbridge Wells. The magistrates' court there is on the third floor of a police building. A lift is being installed to the first two floors but not the third floor. I understand that the police say they do not have enough money to do that and that disabled people can either go to Sevenoaks or be carried upstairs by a policeman. However, that is not always practical as some disabled people are remarkably heavy.
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What happens if a defendant turns up and is unable to gain access because of his disability and then is charged with failing to attend court?
There is a code of practice being drawn up by the Access Committee for England for law courts and I feel this could be used as the basis for a set of specific standards of performance which magistrates' courts committees would be expected to meet in carrying out their responsibility for the efficient and effective running of their courts. Such a code would include the following: awareness training for courtroom staff; the need to provide information in advance to those attending court on suitable parking areas and access to the building; the installation of proper adaptations to buildings to make certain that those in wheelchairs can get into the building, for example ramps, wide doors and other such measures and the provision of room for a wheelchair to move around, as needed, within the court. Court proceedings should be audible for those with hearing disabilities and support should be provided for deaf and hard of hearing people, if necessary with sign language interpreters.
In putting forward this series of amendments, I recognise that many of our magistrates' courts are in listed buildings and that the expectations of disabled people and those who support them must be tempered by the design of those buildings and the cost of adaptations. However, extensive adaptations have recently been made to the Royal Courts of Just ice where English Heritage was among the organisations consulted. This shows that such measures are possible. I beg to move.
Baroness Darcy (de Knayth): I support this group of amendments to which I have added my name. I endorse all that the noble Lord, Lord Swinfen, said about access to magistrates' courts. I wish to examine the question of support for deaf people and to go into a little more detail on that. Most deaf people, whether they are defendants or witnesses, will need some kind of communication support if they are to have full access to the proceedings— for example, a sign language interpreter or perhaps technical assistance in the form of palantype, where the spoken word is typed onto a screen, such as is used by the noble Lord, Lord Ashley of Stoke. As we have heard, the noble Lord is sad that he cannot be with us today; therefore the Committee has me as a poor substitute.
People who have both visual and hearing impairments might need a deaf-blind communicator. In 1993 the Royal Commission report on criminal justice recognised that deaf people must have free access within the criminal justice system to fully qualified interpreters. It made a number of recommendations. First, interpreters in the courtroom and when the suspect is being instructed by a solicitor should be of the highest standard. Secondly, a register of fully qualified interpreters at national and local level should be drawn up. Thirdly, more funds should be made available to train interpreters. The Royal Commission accepted that it was often difficult to find fully qualified interpreters. At that time there were fewer than 100, and in recent years several cases have arisen in which the competence

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of the interpreter has been questioned. Fourthly, a glossary of legal terms should be prepared for interpreters. Fifthly, courts should take responsibility for providing interpreters in the courtroom, paid for from central funds. Payments for interpreters where deaf people are being instructed by solicitors should come from legal aid.
At present the cost of court appearances by interpreters is met from central funds at the discretion of the court. That usually works satisfactorily but the system needs to be safeguarded by law because in two cases in 1993 defendants were charged for interpreters' fees. The right to interpreters also needs to be extended to the deaf parents of hearing juvenile defendants.
I should like briefly to say a word about other forms of support for deaf people in magistrates' courts. All courtrooms should be fitted with induction loops or infrared systems and minicoms should be available, both to receive incoming calls from deaf people or for deaf people in courts to use to make calls.
I very much hope that the noble and learned Lord the Lord Chancellor will be able to give an encouraging reply to these amendments.
5.30 p.m.
The Lord Chancellor: I have the greatest sympathy with the amendment and its purpose. I am glad to know that the noble Lord, Lord Ashley of Stoke, is associated with the amendment. However, I do not necessarily accept the valuation which the noble Baroness, Lady Darcy (de Knayth), placed on herself when she referred to the noble Lord.
It is highly important that the public service, and the magistrates' courts service in particular, should be accessible to all members of society. That is a direct indication of the value that we place on their role as individuals in society.
The provision of magistrates' courts is the responsibility of local authorities. They are obliged to meet all statutory requirements, including those which apply to disabled people. However, as has been pointed out by my noble friend and by the noble Baroness, Lady Darcy (de Knayth), many magistrates' courts are housed in old and historic buildings which were not designed for use by people with, for example, restricted mobility or impaired vision. So far as we can we should seek to modernise those facilities and improve what can be provided for disabled people.
The Government are seeking to do that. There are, of course, difficulties in relation to some of the older buildings in achieving that. In respect of new buildings considerable attention has been paid to the matter. Perhaps I may take the opportunity to say what excellent provision has been made for disabled people in the new magistrates' court in Newport on the Isle of Wight, which I had the privilege of opening not long ago. In addition, as I mentioned earlier, I was in Lincolnshire on Friday and saw the plans for the new magistrates' court which is to be built in Grantham. Again, considerable thought has been given to access to the courts for disabled people.
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The guidance in respect of new buildings is contained in the Magistrates' Courts Design Guide published in 1991, to which my noble friend referred. The guidelines cover such matters as provision for disabled magistrates and defendants, facilities for people in wheelchairs and design features to aid the blind, partially sighted and court users with impaired hearing. That guidance applies equally so far as possible to proposed improvements to existing buildings.
Local authority expenditure on such matters is covered by grant from central government. As the Committee realises, improvements and alterations to historic buildings can be expensive, but the Government give high priority to ensuring that the resources necessary to improve facilities for the benefit of disabled people are made available. I have been able to approve funding in the next financial year for each and every improvement project for the benefit of the disabled that local authorities have put to me.
I shall consider the details mentioned by the two speakers. We dealt with the question of interpreters for the deaf not long ago in relation to the research that is being undertaken to try to improve the general arrangements in that regard. In relation to the code of practice which is in preparation and to which my noble friend referred, we shall be delighted to see whether we can give full effect to the code once it is completed.
I very much agree with the sentiments behind the amendments. My noble friend who moved the amendment may feel that it is better that the spirit of the amendment should be observed than that the amendment itself should be put on the face of the Bill, because one would need to consider a number of other groups whose needs should be taken into account in the design of new facilities for courts or in the improvement of old ones.
I hope that my noble friend will feel able to withdraw the amendment on the basis of the assurances that I have sought to give with regard to his anxieties.
Lord Boyd-Carpenter: Before my noble friend replies, perhaps my noble and learned friend the Lord Chancellor will have in mind that, if a reference to provision for the needs of disabled people can be put on the face of the Bill, it will strengthen the argument in individual cases for the installation of such equipment.
I am sure that all Members of the Committee accept as entirely sincere the remarks which my noble and learned friend the Lord Chancellor made and his indication of Government policy. But when one deals, as we shall have to in due course, with a large number of small cases involving quite small but appreciable expenditure, the fact that there is a provision in the Bill as suggested in the amendment that regard shall be had to the needs of disabled persons will surely strengthen the hands of those who are asking for that equipment to be installed.
I note that the amendment does not lay down firm conditions which have to be complied with in all cases. It merely provides that the work done shall "have regard to" the needs of disabled persons. I wOnder whether, in the light of his sympathetic reply, my noble and learned friend does not feel on reflection that to put that on to the

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Bill will strengthen the case for putting in such equipment in many individual cases. I hope that he will look at the matter i i that way. I believe that he will find that, in view of the way in which the machine of government works, the fact that there is a statutory indication of support for a project strengthens the hand of those arguing for it.
Lord Harris of Greenwich: Like the noble Lord, Lord Boyd-Carpenter, I welcome the positive note struck by the noble and learned Lord the Lord Chancellor in responding to the amendment. However, again like the noble Lord, Lord Boyd-Carpenter, I believe that it wouli be desirable to have this provision on the face of the Bill. I find it difficult to see the argument against having it on the face of the Bill.
That view is strengthened by the two examples given by the noble Lord, Lord Swinfen. It is a matter of some regret. It seems to me that with regard to the courthouse in Selby, quite deliberately, and no doubt for understandable reasons so far as concerns the people in Yorkshire, they opted for the limited access rather than the full access plan. It is rather bizarre— is it not?— to have a policeman carrying people up from the second floor to the third floor in the courthouse at Tunbridge Wells because the lift only goes to the second floor. That is a most extraordinary situation. I should be grateful if the noble and learned Lord were prepared to send those of us who have participated in the debate some note about those two specific examples. They strengthen my view that there should be provision on the face of the Bill. I hope that, co reflection, the noble and learned Lord will accede to the suggestion of his noble friend.
The Lord Chancellor: I do not have details of the two examples. I shall seek to find out the basis underlying them. With regard to having the provision on the face of the Bill, I am content to consider how best we can achieve that. From that point of view, some of the amendments are more acceptable than others. Perhaps I may have an opportunity to consider. them.
Lord Swinfen: I thank my noble and learned friend for the assurance that he has just given the Committee, which I am sure we all welcome; I certainly do. I thank my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Harris of Greenwich, for pressing my noble and learned friend o the point. I do not intend to press the amendment tonight. Like the noble and learned Lord the Lord Chancellor, I, too, should like to consider the issue.
The noble Bareness, Lady Darcy (de Knayth) referred to the charge for interpreters using sign language for deaf people. When I was a justice of the peace sitting on the Dover and Sandwich Bench, it was not unusual to have people who had committed misdemeanours who were visitors from the Continent. They were provided' with interpreters for the various Continental languages which were spoken. Never once do I recall the Bench making an order that the defendant should pay the cost of the interpreter. I gather that it is in the powers of the Bench to make such a decision and that it is not unusual for the cost of an interpreter for a profoundly deaf person to be charged to that deaf
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individual. I believe that that is wrong. if we had someone who did not speak the native languageEnglish— well, the court would go to a great deal of trouble, at no cost to the individual, to make him understand what was going on, in particular with regard to someone with learning difficulties. The matter should be seriously considered and guidance given to members of Benches.
I thank all who have taken part in the debate and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Mottistone Lord Mottistone moved Amendment No.164:
Page 33, line 41, leave out subsection (2).
The noble Lord said: I wish to suggest to my noble and learned friend that there is no need for subsection (2) of new Section 22A. I suggest that my noble and learned friend should be content with the guidance given in subsection (1) of the new section and should leave it to the magistrates' courts committee as to how they provide "efficient and effective administration". The inspectorate will keep my noble and learned friend informed about how successful the system is.
I do not believe that primary legislation is the place in which to provide the details outlined in subsection (2). There are many examples. I have picked out the provision in one of the subsections to make the point to my noble and learned friend. I have already made the point in other respects: that it is overgilding his powers of guidance and authority. With great respect, during the past five or six years, an enormous number of pamphlets has been sent to us on how to perform our affairs. Generally speaking, we have acted before we have received the pamphlets. I suggest that he might like to consider many small parts of the Bill such as subsection (2). They are not necessary, especially as the noble and learned Lord has an inspectorate. I beg to move.
The Lord Chancellor: This is simply an administrative power given to the magistrates' courts committees. It is not a power to the Lord Chancellor. The provision gives the magistrates' courts committees power to allocate administrative responsibilities among the various persons who are there specified. I believe that it is a proper capacity and freedom to manage for the committees and that in order that they should manage effectively— that is what we all wish them to do— they should have this power. It is not a direction; it is simply a power to make the allocation. They may not need to exercise the power in great detail. On the other hand, the committees may in some circumstances consider that they should exercise it. That is a matter entirely for them. No power of the Lord Chancellor is involved. I hope that in the light of that explanation my noble friend may feel able to leave the power to the magistrates' courts committee.
Earl Russell: I am not certain that the noble and learned Lord has entirely addressed the point of the amendment. As I understood the noble Lord, Lord Mottistone, the point was whether the matter should be spelt out in primary legislation. As the Committee knows, I am generally an enthusiast for spelling matters

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out in primary legislation, but even I should have thought that perhaps in this case the provision was excessive. Do we need to find time for an Act of Parliament if those arrangements are ever to be changed? I hope that the noble and learned Lord will think a little more about the case.
Lord Swinfen: I support what has been said by the noble Earl, Lord Russell. Subsection (1) states:
"A magistrates' courts committee shall be responsible for the efficient and effective administration of the magistrates' courts for their area".
Subsection (2), which my noble friend seeks to remove, spells out what parts they ought to consider, or some of them. If subsection (2) is left in the Bill, the committees may consider only those aspects of efficient and effective administration, and not other aspects of administration to which they ought to attend. I should have thought that subsection (2) was superfluous.
The Lord Chancellor: I am grateful for those observations. First, the power is a power; it is by no means exclusive. it is intended as a specific power allowing the allocation of administrative responsibilities. I am not clear that without the subsection it would be proper for the magistrates' courts committee necessarily to allocate the administrative responsibilities in that way. It is important that the committees should have that power. I believe that it is desirable that the provision should be spelt out to that level of detail. The level is not great, but it gives the committees the overall responsibility for allocation.
Accordingly, while I understand that the noble Earl, Lord Russell, takes a different line from that which he often follows, I do not believe that at present it would improve the Bill to take that specific power away from the magistrates' courts committees. The assumption appears to be that, if the provision is taken away, nothing is removed, but I am not certain that that is so.
Lord Mottistone: I do not wish to pursue the matter. However, I implore my noble and learned friend to open his mind on the issue. If the magistrates' courts committees under the terms of subsection (1) cannot undertake subsection (2) without the power being spelt out in legislation, they are not being given enough authority under subsection (1). I seek all the time to convey to my noble and learned friend that they do not need to be told what to do by his department; they can get on with it very well. He has a beautiful inspectorate to show him when they are not getting on well with it. I shall not pursue that further.
I wish to make a point about the succeeding Amendments Nos.165,168 and 169 which my noble friend— if I may so describe him— Lord Tenby will move for us both. I hope that my noble friend will agree that Amendments Nos.165,168 and 169 should be taken together because they are consequential on each other, rather than being separate, as the guidance for grouping indicates. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Alport): I have to advise the Committee that if Amendment No.165 is agreed to, I shall not be able to call Amendments Nos.166 or 167.
Viscount Tenby Viscount Tenby moved Amendment No.165:
Page 34, line 7, leave out subsection (4).
The noble Viscount said: I beg to move Amendment No.165. I am much obliged to my noble friend— may I say that?— Lord Mottistone for making the point about Amendments Nos.168 and 169. Although they are not formally grouped together, they are consequential, so I am obliged to the Committee for its kindness in letting me embrace them all.
Clause 66 refers to the powers and duties of magistrates' courts committees. It enables the Lord Chancellor to give directions to magistrates' courts committees requiring each of them to take specified steps and to establish performance standards for magistrates' courts committee areas, including giving directions to them to ensure that they communicate effectively with magistrates in their area. It also enables the Lord Chancellor to give directions that arrangements in turn are adequate to enable the magistrates to communicate with the MCCs.
If performance standards are not to be imposed nationally but by area, the Lord Chancellor's Department will inevitably end up by imposing standards on that area. There can be no other interpretation. For example, there might be a direction as to the level of courtroom use throughout the year; something which, surely, I submit, would be better determined in the light of local knowledge and experience.
On looking at the clause, I have to say with some sadness that the recent prolonged consultation between the Lord Chancellor's secretariat and magistrates— and I say this with diffidence— has resembled nothing so much as a carefully crafted public relations exercise. I speak as an old PR hand— and it takes one to know one.
The area covered by the amendments illustrates the point admirably. At no stage in Decision Paper No.7, 00Communication Within the MCC Area, is there set out the power of the Lord Chancellor to decide standards as to how MCCs should communicate with their Benches. Indeed, the paper bends over backwards to declare its support for local autonomy. Bench liaison meetings? This matter will be for local decision. The form newsletters might take? Let the individual MCC decide. Upward communication of ideas— that is, from individual Benches to the MCC? The Government believe it to be inappropriate to prescribe mechanisms for achieving that.
What happened to all those fine liberal sentiments between publication of the paper in August 1993 and the last minute publication of the Bill shortly before the Christmas recess? I cannot guess. But I and others in the magisterial service are saddened by it. I have to add that it seems to confirm what became apparent to me the longer the consultation process went on. There was much listening, much pleasantly conveyed sympathy, but no meeting of minds and very little flexibility indeed.

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Put briefly, the amendment is all about common sense. Do we believe that every area of England and Wales is exactly the same, be it conurbation or countryside, and that members of MCCs— experienced, senior and committed magistrates as they are— will be unable to communicate competently with their fellow magistrates without the assistance of the Lord Chancellor's Department? I believe that such a presumption is as wounding as it is misconceived. I do not use those words lightly. But if Members of the Committee believe it, then this clause in the Bill passes muster. I hope that [may have convinced the Committee otherwise. I beg to move.
Lord Mottistone: I wish to support my noble friend in his remarks and in the wise comments that he made from practical experience. In supplementing what he said, I pick out a few points. I suggest that performance standards set from above are totally inappropriate. On Amendment No.168, it is no business of my noble and learned friend to tell people how to communicate locally. When he has a useful report from the inspectorate, he can circulate advice to MCCs on detailed matters. That is the way to do it; not to think it up from "experts" at the centre but to use the information that one gets from the grass roots. Then one can leave the tnagi3trates' courts committees to get on with it.
I have many examples which I plan to send to my noble and learned friend of circulars which he has been sending out during the past five years or so which my MCC, or Bench or both have put into effect, sometimes before the circular arrives, without any prodding from him or his department. An example on which he has not prodded us but which we think is a good idea is that in conjunction with our local training and enterprise council we have adopted, for the purpose of the employees of our MCC Investor in People, a publication which was circulated by the Department of Employment, a splendid piece of advice. That is the kind of thing which a forward-looking MCC will do on its own account. With the greatest possible respect, I do not suppose that the Lord Chancellor's Department has even heard of it. If it has, I am surprised that it has not been put into one of its recent circulars.
I hope that my noble and learned friend will see that some of the proposals are not only unnecessary but are positively harmful to the magistrates who are experienced, responsible people or they would not be there. They do not need to be told what to do by "Auntie Government" every time the bell strikes.
The Lord Chancellor: These are powers, not obligations, to carry out the legislation. Amendment No.208 in the name of the noble Viscount, Lord Tenby, deals with the question of default. It states:
"The Lord Chancellor may make an order under subsection (2) below if he is of the opinion that, without reasonable excuse, a magistrates' courts committee … is failing properly to discharge any duty imposed on it by or under any enactment, or … has so failed, and is likely to do so again".
I should have thought that before one came to detailed examples of failure, it would be wise to indicate what was required. It is in that situation that powers such as those in question would be used. My noble friend has
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instanced a number of circulars which we have sent him or his local committee. I gained the impression that on the whole he felt that what we were advising was right, but, the Isle of Wight being so advanced, it had already done it before our circulars arrived. I have to say that not every MCC may be as enlightened as that of the Isle of Wight and, it does not seem wrong to give the benefit of anything that we have gained in the Isle of Wight, and other advanced places, to others. This is simply a power to lay out standards. The power is at the basis of the amendment which my noble friend Lord Swinfen proposed. It was in that regard that it was suggested that standards in respect of the disabled should be laid down.
I cannot do both. I cannot leave out the power to give directions and at the same time give effect to wishes that disabled people are properly looked after by magistrates' courts committees in the way that my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Harris of Greenwich, said. This is not intended to be auntie government telling people what to do except in situations where that may be desirable. A failure of communication between the magistrates and the committee may well be a source of difficulty in connection with the administration of justice. That is the basis on which a default may arise.
I say 'to the noble Viscount, Lord Tenby, and my noble friend that these amendments seek to remove a power which may be highly useful as a preliminary to any kind of default arrangement. Obviously, I will take account of anything that is said by the Magistrates' Courts Inspectorate in these matters. It may he that, arising out of its reports, it will be wise to have local or national requirements. We have tried to keep that open. The last thing that I want to do is to insult local magistrates in any way. I am too concerned to try to get them to come forward. It is not all that easy to get people across the spectrum of backgrounds to act as magistrates, but we attempt to do that with the help of advisory committees. However, I do not wish to put a magistrates' courts committee into any kind of default arrangement without very good notice of what requirements I seek to have implemented.
I hope that with that explanation the noble Viscount will feel that our consultation was much more than a public relations exercise. I have never had anything to do with public relations in any professional sense. Therefore, the noble Viscount has an advantage over me in that respect. I do not wish to waste my time on that matter. I know that those who gave us advice on consultation devoted time to it, very often their own time. I carefully studied the situation. The fact that I do not accept all of the views proffered does not mean that I have not considered them carefully. I will take considerable note of them in deciding whether or not to exercise any of these powers.
6 p.m.
Earl Russell: I believe that this matter should be known as the amendment of the revolving fork. The noble and learned Lord has attempted to impale the movers of the amendment on a fork. On the one hand, they ask for more prescription in primary legislation and, on the other hand, they ask for less. Of course, that

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may have something to do with confidence in the purposes which are involved. I am sure that the purpose of assisting the disabled is one that we all share. The purpose of imposing standards of performance is perhaps where the noble Lord, Lord Mottistone, earlier this afternoon detected steely underpinnings. I believe that in the process the noble and learned Lord has impaled himself on the fork on which the Government normally try to impale movers of amendments. Either they are wrecking or they are unnecessary. I believe that the noble Viscount, Lord Tenby, and the noble Lord, Lord Mottistone, suspected this proposal of being wrecking of magistrates' courts by interfering too much in the exercise of local discretion.
The noble and learned Lord the Lord Chancellor says that this is only a power and he will not necessarily need to use it. Therefore, he runs the risk of having to admit that this proposal is unnecessary. The words "standards of performance" cause me some concern. We have only one conscience: our own. As the noble Viscount, Lord Tenby, said, if we are experienced professional people we have a conscience about how our job should be done. It is the only one by which we can honourably act. I say from experience that where standards of performance are imposed upon us from outside they will never be quite the same as our own standards of performance. In attempting to meet those standards very often we have the options of deliberately failing to meet them, or deliberately failing to act according to our conscience, or spending a great deal of unnecessary time in the concoction of fudge. Fudge is a very pleasant confectionery, but one can have too much of a good thing.
The Lord Chancellor: I am not particularly keen to be impaled upon a fork. I say that it may be necessary to use these powers. If in some situations they may require to be used, one is required to have them in the Bill. I hope and pray that I shall never have to find any magistrates' court committee in default. I strongly believe that it is highly unlikely that that will ever happen. Nevertheless, it is a wise proposal. I am supported in the need to have such a proposal by those who seek to amend my own. The question is: is it absolutely beyond the bounds of possibility that some of these standards may be required? It may be that the situation to which the noble Earl, Lord Russell, refers will arise only in relation to default. However, there is also the question of helping people by using the experience of others to show what standards are appropriate to deal with these matters. To circulate best practice is a useful thing to do. Even if my view on the numbers ultimately proves to be correct, we will still have a large number of magistrates' courts committees. It is important that standards of performance should be available.
I entirely agree that the standards we set ourselves are, on the whole, those which are most likely to commend themselves to us, but it may be that examples of standards set and attained by others will help us to improve our own. I believe that history shows us that that can happen from time to time. I hope that the noble
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Viscount will feel that the spirit in which the proposals are put into the Bill is in accordance with the possibility of their being required.
Lord Monkswell: The noble and learned Lord the Lord Chancellor made two points. He said that he did not want to find magistrates' courts committees in default. He also said that he wanted to spread best practice and provide advice on best practice to magistrates' courts committees. Those are entirely laudable aims with which I am sure everyone in the Chamber will agree. The problem is that the particular clause about which we speak does neither. It does the opposite. It provides that the Lord Chancellor may give directions to magistrates' courts to meet certain standards of performance. Effectively, it pre-ordains that some magistrates' courts committees will not meet those standards and therefore will be in default. One will set up a mechanism by which to catch magistrates' courts committees. That is not the mechanism by which to provide advice on best practice. Surely, it can be done in some other way, not by this proposal.
Lord Bridge of Harwich: Perhaps I may put a rather simpler question. As I understand it, we are talking about a statutory power to give directions to magistrates' courts committees which specify what they are to do. Is my noble and learned friend really saying that statutory power to give directions is a necessary preliminary to the exercise of a default power? Surely, before a default power is exercised an informal ruling will be given. Magistrates' will be invited to cure the default. I should have thought that one would not need a statutory power of direction before the exercise of a default power.
Lord Chancellor: I hesitate to take issue with my noble and learned friend. I would feel very unhappy if I had to exercise any default power at all in respect of a magistrates' court committee. But I would feel it much safer to exercise default powers against a proved failure to meet a statutory standard than to proceed on any other basis. It is true that I would wish to do everything that I possibly could by informal means to avoid such a default. But if it comes to exercising a statutory default power, the Lord Chancellor would need to have very secure grounds on which to stand. A necessary part of that is specifying what is required before a default is found. I hope and believe that in most cases if that happened the default would be rectified without any further procedure. But it is necessary as a preliminary to that to have such power.
In regard to the point made by the noble Lord, Lord Monkswell, I do not accept that the fact that the Lord Chancellor is given powers to do certain things necessarily means that he will require to exercise those powers. That depends on events that unfold in the future.
Viscount Tenby: I should like to thank the noble and learned Lord the Lord Chancellor for the trouble that he has taken to present his view. I appreciate that very much. He says that it is simply a power. That is one of the points that worries me and others. The term "power" is the problem. A much less enlightened and

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sympathetic Lord Chancellor may come after him. All these measures will then be in position. It cannot be right— it simply does not work— for people who are very far away from the coal face to direct in minute detail the way in which members of magistrates' courts committees should be informing their magistrates. I am sorry, but I take that view. However, I am satisfied that the noble and learned Lord has, if I may use the phrase, taken what we have said on board. Accordingly, I should like to leave the matter there while I study what he has said today. I reserve the right to return to the matter at a later date. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.166 to 169 not moved.]
Clause 66 agreed to.
Clause 67 agreed to.
Clause 68 [Appointment and functions of chief justices' clerk]:
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No.170:
Page 35, line 5, leave out ("justices' clerk") and insert ("executive").
The noble Lord said: I seek today to persuade the Committee that it would be sensible to make this modest and easily understood amendment to the Bill. I seek particularly to persuade my noble and learned friend that it would be sensible and wise. In moving the amendment, I should like to make clear that I have very much in mind one sentence from the speech of my noble friend Lord Carr at Second Reading when he stressed the need for a strong effort to reach consensus on the Bill before it leaves this House.
As I see it, the idea of a chief justices' clerk at least appears to be something of an obstacle in the way of achieving that consensus. It has awoken a very considerable amount of suspicion, fear and resentment. I should like to make it clear that, as I see things, that suspicion and fear is not directed at my noble and learned friend the Lord Chancellor so much as at the way in which this post could be used or misused by a successor with very different ideas to his own.
Throughout the Bill' one of the most worrying features is that there would seem to be a constant clash between those at the centre and those on the periphery (or at the fringe) of things. The centre is always very conscious of its good intentions. It is inclined to make much of the sympathy, even pity, that it feels for those on the periphery in the difficulties which they face.
For those on the edges, things look very different. To start with, the good intentions of central government generate only too often a good deal of apprehension. The pity and sympathy which central government may feel for those on the periphery is not always appreciated. It is something which only too often they feel they can do without. They feel that they do not need the massive help which central government offers.
In the particular context that we are dealing with here, those who undertake considerable duties in magistrates' courts— and it is a huge and complex task — are justified in thinking of themselves as doing their duty rather well; an I moreover, doing it very cheaply.
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Considering the huge volume of business which goes through their courts, they also do it with remarkably little complaint.
We are all very familiar with the way in which almost any public activity generates and attracts a huge volume of complaint no matter how worthy the action. The point that I seek particularly to make is that efforts on the part of central government to tidy up or to produce economy — it is often called value for money— are looked at askance, and for very good reasons. First, there is the question: will the changes work at all? Secondly: might they not make things worse? And particularly, might they not end up by making things a good deal more expensive?
Those who perform these sorts of tasks, and who are proud and happy to do so, do not relish the prospect of being made to conform with Whitehall's patterns. I am sure that noble Lords would be united in believing that things can always be improved in any human organisation. The question that I seek to raise in this amendment is: are we quite sure that the new post of chief justices' clerk would improve matters? It is important to understand what would be his duties. Would they be only administrative; or would they be administrative and judicial? If, as I understand it, they are to be both, then a very, very clear line needs to be drawn between the occasions on which the chief justices' clerk will be acting judicially because he will then be acting as a justices' clerk and not in his new guise and the occasions when he will be acting purely administratively.
I know that it is my noble and learned friend's desire to produce a strong head of service. At this point, I should like to say how much I appreciated my noble and learned friend's courtesy when he took the opportunity the other day to explain to me his attitude to the amendments which stand in my name. At least it encouraged me to believe that they would be considered with the utmost care and that he would not be examining them from any rigid and immovable position. Anyone who occupies the post of a chief justices' clerk, if such a post were created, would find it very difficult to make clear to his colleagues and the profession— in other words, the justices' clerks— that he was there to help them and not compete with them, and that he was there to co-ordinate their activities and not to usurp their functions.
If that post is to be enshrined as such in the statute, it is important that there should be a very clear dividing line about the duties and powers. I believe that there are people now in post who are carrying out the kind of administrative duties which could easily be done by someone called a chief justices' clerk but which could, in my view, be done better— because there would be less danger of misunderstanding— if he were called a chief executive, as proposed in the amendment.
I am sure that my noble and learned friend sees in such an appointment a way of doing things better. I hope that he will understand— it must be quite difficult to do so from his position— that the real anxiety is about what his successors, and indeed other government departments, might be tempted to do. It is my fear that whereas he sees the appointment of chief justices' clerks as a

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better way to do things, others may be tempted to see such appointments as a way to do very different things. I hope that he will be very careful of that.
I should like to make one further point. If there is no intention whatsoever for the chief justices' clerk to stray into the judicial and quasi-judicial area of the functions of a justices' clerk, why is the safety net of Clause 71 necessary? It seems to me that perhaps my noble and learned friend and those responsible for the Bill at least saw that there was a danger there and therefore inserted Clause 71 in the Bill.
Before I bring my remarks to an end, I should like to remind the Committee of some words spoken by the noble and learned Lord the Lord Chief Justice, whose name stands to this amendment, on the occasion of the Second Reading of the Bill:
"It is absolutely fundamental that nobody providing legal directions or advice to a tribunal of fact … should be or appear to be susceptible to outside influences of any kind". — [Official Report, 18/1/94; col.476.]
I believe that those words are of absolutely basic importance and that we should keep them in mind. Our views and decisions on this matter should be governed by those sentiments.
In conclusion, let me plead with my noble and learned friend to overlook any inadequacies in my speech and to believe that what I seek today is prompted solely by a very great concern— which is widespread among a whole host of decent, intelligent people, who do some marvellous work— and real fears and suspicions that this particular step would be a mistaken one and would lead over the years to great damage to the profession and almost unending misunderstandings. I beg to move.
Lord Taylor of Gosforth: At the outset, I should like to say how glad I was to note the announcement made on 2nd February by my noble and learned friend on the Woolsack in answer to criticisms made of some of the proposals in the Bill. I am also glad about the amendments that he has tabled, many of which the Committee has already accepted. In supporting the amendment, I hope that I shall be forgiven for returning to two matters that I raised in the debate at Second Reading and in respect of which my noble and learned friend has not — or, as I prefer to hope, has not yet— felt able to modify the Government's position.
We are considering Amendment No.170, but I should also like to touch on Amendment No.178, since the issues with which the two amendments deal are closely intertwined. Amendment No.170 proposes that the new chief justices' clerk should instead be a chief executive. At first blush that may seem merely a matter of nomenclature. In fact, it goes very much deeper. In order to strengthen and sharpen the administration of magistrates' courts, the Government propose to appoint a head of service, who will be the single head of all the paid staff of the committee, the committee's principal adviser and the person responsible for— one must use the jargon— the line management of all staff working in the magistrates' court.
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I have no difficulty with that. Indeed, I welcome it. The efficient management of the court administration and the best use of resources will no doubt benefit from the proposal.
But the Government require that the new head of service has to be legally qualified. They require that he should have the same qualifications as a justices' clerk and be capable of acting as a justices' clerk; hence, the proposed name and why it has caused offence to many magistrates and is opposed by their association which, I am informed by its president, regards this clause as anathema (that was her word).
I see real dangers here. In a Written Answer in another place on 9th February the Parliamentary Secretary reiterated that the main purpose of instituting the new office of chief justices' clerk was to:
"provide clearer lines of accountability within the service". — [Official Report, Commons,9/2/94; col. 250.]
So be it. But accountability for what? For resources clearly yes, for the court and its staff yes; but for the judicial decisions and legal advice of justices' clerks categorically no.
I see no prospect that the essential distinction between administrative functions on the one hand, and judicial and legal functions on the other, can possibly be maintained if the new office-holder is both qualified and denominated as a justices' clerk. On the contrary, the proposal is bound to lead to the distinction becoming blurred, and to serving justices' clerks being made (whatever assurances my noble and learned friend gives now) to feel accountable to their "chief" for both sets of functions.
Moreover, there is no reason that I can see why the new head of service should be required to be legally qualified (though of course if a local committee wants him to be then that should be a matter for them). In my noble and learned friend's own department I know from personal experience that lawyers work for or under administrators without any difficulty and, in particular, without any impairment of "clear lines of accountability". The circuit administrator who heads the court service in the Crown Court on each circuit does not have to be legally qualified. Some are; some are not. But the important point is that a circuit administrator does not, and cannot, come into court and exercise judicial or advisory functions in the legal process. Nor does he train judicial officers.
We can see the risks very clearly if we look at subsection (3) of the new Section 24E which this clause will insert into the 1979 Act (and which is the object of Amendment No.178). This is the provision which seeks to establish the new "legal forum" by requiring the chief justices' clerk to,
"promote discussions relating to law, practice and procedure"
among the justices' clerks in their committee area. According to the Notes on Clauses my noble and learned friend has helpfully provided, its purpose will be to achieve greater consistency in the legal advice given to magistrates.
We had an example of such a forum recently when a number of employees of the magistrates' courts from Inner London attended a course, part of the funding for which was provided by my noble and learned friend. It

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was called Managing Corporate Direction: A Course Designed for Managers of Magistrates' Courts. It ran on the 13th and 14th December at the Civil Service College, and was reported in the Observer on 23rd January by Mr. David Rose. He had received an account of the course from a participant, a copy of which I have seen. Copies of the course material were placed in the Library by my noble and learned friend last week in response to a Question from my noble friend Lord Lester of Herne Hill: they run to 105 pages and, remarkably you may think, mention the word "justice" only once.
I think it is worth my quoting briefly from the participant's account of the course. The quotation might amuse your Lordships if it were not so worrying. There was a discussion of "stakeholders" (these are, apparently, persons, groups or organisations that can place a claim on an organisation's attention, resources or output). Then,
"We were invited to decide who the magistrates' courts stakeholders were, and rate them in order of importance to us as members of the magistrates' courts service. To help us, the tutor said: 'Of course the Treasury will be very important, because that's your source of funding: and the media will be very important, because they affect your image. ' I asked whether defendants, on that analysis, were unimportant in that they did not pay us directly, they were not unionised and were not a single pressure group. `No', said the tutor. `You see, some might contact the media, and have an effect on your image. ' I asked if he was saying that defendants were important only in so far as they might do something like that: some of them and indeed some magistrates' courts staff might, I suggested, believe that defendants were intrinsically important to us simply by virtue of their and our respective roles. `No', the tutor explained, `you see, we're concerned with what's important to us; we're not concerned with moralising'."
Another session concentrated upon objectives. These, apparently, should be "achievement-orientated, specific and objective". One group, naively, as it turned out, suggested the word "justice" might merit a mention in them. It was hastily deleted by the course tutor since it was not "quantifiable".
This is not just nonsense; it is dangerous nonsense. Legislating to compel judicial officers to be indoctrinated with it would be indefensible. There is also the fear that chief justices' clerks will use the so-called "legal forum" as a means to influence the way justices' clerks advise the Bench and indeed the way they exercise their own judicial functions. Even if they do not deliberately exercise such influence, the justices' clerks under them may feel a pressure to win their chief's approval. There is therefore a risk that volume of throughput and economy may prevail over the requirements of justice.
Amendment Nc.178 (which has the support the Justices' Clerks' Society) will remove the "chief justices' clerk" from this forum, and leave it to justices' clerks themselves to assemble as they see fit, to compare notes and ensure appropriate consistency in the application of the law. Coupled with Amendment No.170, it will ensure that the management of the magistrates' courts is placed firmly in the hands of specially recruited managers, and that judicial functions remain where they belong, in the hands of judicial officers. I commend these amendments to the House.
6.30 p.m.
Viscount Tenby: I speak with some pleasure and some trepidation in relation to Amendment No.170, in view of its distinguished sponsorship. Ever since proposals were floated about the creation of the post of chief justices' clerk and of an additional tier of management in the magisterial service, there has been a groundswell of opposition from magistrates in every part of the country. I should say straight away that this opposition is not based on any reluctance to accept an administrative head for magistrates' courts committees, though the very scrutiny pin-pointed the lack of management skills and effective managerial control which existed in far too many MCC areas.
That message was received and understood. MCCs immediately began to put their houses in order. Speaking from my own personal experience of one, very substantial strides were taken towards modern and entirely acceptable business practices; so that today the picture is entirely unrecognisable from what it was two or three years ago. Indeed, in the MCC on which I was privileged to sit until a year or so ago, there is already in-situ someone who amounts to a chief executive, handling, as he does, all administration in the MCC, but not entitled to sit in court as he is unqualified. The system works very well; so the principle is accepted, and willingly accepted.
What is not so readily accepted is the proposed title of head of administration within the MCC area. All the justices and justices' clerks I have spoken to— and they after all are the people who run the magisterial service — feel very strongly that such an appointment should not carry with it a legal title, and the modus operandi should not impinge in any way on the judicial role of justices' clerks. I accept the guarantees given that no central direction would be imposed on justices' clerks to affect the independence of the advice they give to their justices. But why should it be thought necessary to insist that someone who is to be head of administration in an MCC should also have a role to play as a justices' clerk and be able to take a court from time to time?
What dimension, apart from unnecessary interference in the running of courts, does it add to the role? As anyone working in the magisterial service as a justice knows, a justices' clerk has, to put it extremely mildly, a full-time job which is certainly not confined to sitting hours. Once the court rises there are many loose ends to be tied up, and he will already have had to have been in the court before the business of the day begins. Is it seriously proposed that the chief justices' clerk, in addition to his or her real duties, which must be comprehensive if efficient management is to have any meaning, will have the time to engage in such extra-mural activities? When one thinks, for example, of already combined areas like Buckinghamshire, Berkshire and Oxfordshire, the idea that a future chief justices' clerk can sit regularly in courts around such a wide area is, quite frankly, unrealistic.
There is also the human factor. I believe that if a future chief justices' clerk has a judicial role or title it will affect, perhaps only subtlely but affect nevertheless, the working environment between that person and the

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justices' clerks themselves within his area. Human nature being what it is, it may also tempt him or her into interfering in quasi judicial areas— like, for example, how fines are to be enforced or the granting of legal aid. Most important of all is the temptation it gives central government to use this new machinery to promulgate their views to benches up and down the country on various topical and often contentious matters.
Let two recent examples enforce this point: first, the encouragement from government to magistrates to fudge the unit fines system before Parliament had amended the Criminal Justice Act 1991 accordingly; secondly, the circular issued from the noble and learned Lord the Lord Chancellor's Department in the matter of legal aid and the requirement to produce a certain number of successive pay slips in order to secure it— later withdrawn in the face of criticism. In a way the proposal to put justices' clerks onto a fixed term performance-related contract and this one were a double whammy, to use a political phrase much in vogue nowadays. We in the service are all very grateful to the noble and learned Lord the Lord Chancellor for withdrawing the first. May I now beg him to let common sense prevail and remove the second?
I dare to say that it cannot be of great significance to him or his department if there is no fell intent, which I am sure there is not. But to those who work in the service I assure him that it is of great significance. What is in a name? That which we call a chief justices' clerk by any other name would smell as sweet.
6.45 p.m.
Lord McIntosh of Haringey: I rise to support this group of amendments moved by the noble Lord, Lord Peyton, and others. It may be helpful to the Committee if I spell out what each of the amendments does as these things are sometimes not as clear as would be desirable.
Amendment No.170 is the simplest of the amendments. It replaces the phrase "chief justices' clerk" with "chief executive". I acknowledge straight away that, for consistency, it would be necessary if the amendment were carried, to do the same thing a dozen times later in the Bill. That might have to be done at Report stage. Amendment No.172 is an important amendment because this is the place where the Government's proposal in Clause 68 that the chief justices' clerk should be required to be qualified as a justices' clerk— in other words, to be legally qualified and prepared to act as a justices' clerk and treated as a justices' clerk for the purposes of the enactments— should be taken out and replaced, as the noble Lord, Lord Peyton, suggests, by a proposal that he should have what are called accounting functions.
Amendments Nos.176 and 177 are alternatives, Amendment No.177 being a fall-back to Amendment No.176. At the moment lines 8 to 11 on page 36 of the Bill—
Lord Peyton of Yeovil: The truth is that Amendment No.177 crept into the Marshalled List from I do not know where. It was purely repetitive, was not really in the alternative and has been withdrawn.
Lord McIntosh of Haringey: I am grateful for that intervention. It simplifies matters. It would work as an alternative because it would leave the other phrase in.
Amendment No.178 has been spoken to very clearly. It concerns discussions about law practice and procedure among justices' clerks. The amendment provides that that would be the responsibility of the justices' clerks rather than the chief justices' clerk.
The point behind all these amendments and the reason why they hang together so well is a simple one. A magistrates' courts committee should, of course, have a head of paid service. As those who know them much better than I do have explained, that head of paid service should have administrative functions and should be responsible to the magistrates' courts committee rather than, in many respects, to the Lord Chancellor. An additional problem with Clause 68 is that, because of the mixture of responsibilities which is proposed for a chief justices' clerk, subsection (2) provides that the Lord Chancellor shall have an active part in the appointment of a chief justices' clerk. We agree that there should be a head of paid service, but he should be only a head of paid service and his role should not be mixed up with the role of the justices' clerk.
The justices' clerk is in a very peculiar position. His is the only legal advice available to magistrates. He has a very important constitutional role in that respect. He has additional administrative responsibilities within his own Bench, but his fundamental responsibility is to his own Bench and not to the administration of a wider area as the area of a magistrates' courts committee. Any legislation which confuses those two roles— the administrative role of the chief executive, as we would wish it to be, and the legal role with administrative support of the justices' clerk— is distorting the pattern of responsibility within the magistrates' courts service. That is the fundamental objection to the clause and I imagine that it is the reason why the noble Lord, Lord Mottistone, proposes to object to the whole Clause.
I believe that this series of coherent amendments, which reflects, as has been clearly said, the views of the Magistrates' Association, the Justices' Clerks Society and all other organisations concerned in the administration of local justice, deserves careful consideration by the Committee before any broad-brush decision is taken about the clause as a whole. It deserves, I believe, the support of the Government because it raises no issue of principle to which the Government could object. It clarifies the roles of government, magistrates' courts committees, bench, administration and legal advice to the bench in a way that the clause at present does not. I support the amendments which have been so ably moved and I urge my noble friends to support them as well.
Lord Boyd-Carpenter: There is one simple argument in favour of this amendment and it takes only a moment to express it. The expression "chief justices' clerk" will be widely misunderstood. Of course it will not be misunderstood by noble and learned Lords in this House but outside,"chief justices' clerk" carries with it a connection with the Lord Chief Justice. The words "chief justice" are mostly known to the public in the

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context of Lord Chief Justice. There will be a suspicion and a complete misunderstanding that this official is some appendage to the Lord Chief Justice intruding into the lower levels of the legal system. It seems a pity that we should create this misunderstanding.
Quite a number of laymen have spoken to me and asked: Why are you dragging the Lord Chief Justice into this?". It is wholly unnecessary to use a misleading term which is not misleading to lawyers but to ordinary people, when there is a perfectly good alternative such as that proposed by this amendment which I very much hope that the Committee will accept.
Lord Taylor of Gosforth: I support what the noble Lord has just said. In my speech I did not wish to mention matters which were personal to me. But they are not so much personal to me as personal to my office. I raised this point at Second Reading and I have raised it many times with my noble and learned friend who has said that he would be looking at it. He is still looking at it. That is another reason why this nomenclature needs to be changed. I wish to concentrate on the matter of substance rather than simply the title.
Earl Russell: The proposers of this amendment have made the Chamber echo with the noise of nails being remorselessly hit on the head. I cannot help having the feeling of a certain familiarity about this debate. When the Whitehall apparatus of accountability in its modern definition, and efficiency and so forth, is brought to bear on a public service, there is inevitably a certain sameness about the reactions. I could not help having memories earlier today when the noble and learned Lord the Lord Chancellor was testifying his commitment to the independence of the service. For me that argument began when I was sitting here waiting to make my maiden speech and listening to him making the same argument about academic freedom. He made it in all sincerity. He was wrong. He is making it in all sincerity now. I believe that he is again wrong because the whole of this apparatus of accountability, the demand for everything to be done for the lowest possible cost, inevitably conflicts with the autonomy of professional judgment. I have never heard that more clearly illustrated than it was in the speech of the noble and learned Lord, Lord Taylor of Gosforth.
I understand that costs matter, but in any public service the object of the exercise must have primacy. Here the object of the exercise must be justice, which means that justice must have priority over the pursuit of efficiency. That is why the point made in Amendment No.170 is absolutely central.
Perhaps I may continue the academic analogy. We have here something like a proposal to give the headship of department to the bursar. His judgment in matters of research might not be one in which everybody would always have confidence. So the point of the proposal is the same as the restriction we have in my profession by the distinction of category between academic and administrative staff. That is a very helpful decision. The division of responsibility works. As I understand it, it is the same division of responsibility which is proposed in Amendment No.170.
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In this pursuit of accountability, which is growing all the time, we have a juggernaut. Juggernauts too must be held accountable. The place where they are properly held accountable is in this House. If the noble and learned Lord has listened to the debate with his usual care, that may not be necessary, but if it is, I hope that it will be done.
The Lord Chancellor: I understand the noble Lord, Lord McIntosh of Haringey, and the noble Viscount, Lord Tenby, to agree. I believe that is implicit also in what my noble friend Lord Peyton of Yeovil and my noble and learned friend the Lord Chief Justice said; namely, that we are dealing here with a person who is to be appointed as head of service within the area of a magistrates' courts committee. I am grateful to receive the nods for that. That is essentially what I believe we require— accountable as the principal officer of the magistrates' courts committee.
The whole function— indeed the only function— of the magistrates' courts and the magistrates' courts committee is the dispensation of justice at that level within their area. Is it not surprising therefore that the Committee should face an amendment which takes the word "justice" out of the title of the head of service? As my noble and learned friend Lord Taylor pointed out in referring to a course— I shall come back to that in more detail in a moment— the reference to "justice" was thought not to be appropriate there. He criticised the course on that basis.
That is not a very satisfactory basis on which to ask for the word "justice" to be taken out of the title of the head of service. My noble and learned friend referred to the Magistrates' Association. I believe that he was referring to the chairman because the Lord Chancellor is ex-officio the president of the association and so far I have been continued in that office.
This is a difficult matter. Inner London, which does 10 per cent. of all the magistrates' courts work in England and Wales, has a principal justices' clerk who is head of service. There is a justices' clerk in each of the petty sessional divisions within the area. That is a tried and tested system which I believe to be good.
We did not reach this position without consultation. As the noble Viscount, Lord Tenby, has pointed out, we have had quite a lot of consultation. I wish to quote from a response sent to the magistrates' courts division of my department by Mr Cramp, the honorary secretary of the Justices' Clerks' Society on 20th May 1993. Paragraph 10 is quite important:
"Paragraph 10 sets out the Lord Chancellor's Department's view that the chief justices' clerk because he needs, among other qualities, to have 'credibility in the legal area in order to exercise effective leadership', should have the same legal qualifications as a justices' clerk without necessarily having previously held office as a justices' clerk. We cannot agree with that contention. The appropriate job title, relationship between head of service and justices' clerks, the perception of the standing of the head of service by other agencies in the justice system and his ability to be effective within the magistrates' courts service or outside it, will be determined by the qualifications required for appointment. We question whether someone without experience as a justices' clerk would have an in-depth feel for the workings of the system. The unique and sometimes apparently paradoxical role of a justices' clerk needs a degree of insight and sensitivity not always obvious to the outsider, even if a lawyer.

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"In addition to being legally qualified as a barrister or solicitor (assuming also that the postholder would be required to have demonstrated management competencies) we suggest that for a person to become a chief justices' clerk he must be eligible for appointment as a justices' clerk under the Justices of the Peace Act 1979, Section 26 and be the current holder of such a post.
"It is noted that although the consultative document does not specifically ask for comments on the title given to the head of service, consultees have been invited to comment.
"The Society is of the view that the head of service should be qualified under Section 26 of the Justice of the Peace Act 1979 and also hold or have formerly held the office of justices' clerk.
"Whilst the job description of the chief justices' clerk requires the execution of mainly administrative functions, it is in our view imperative that the chief justices' clerk possesses a thorough understanding of the role and duties of justices' clerks' and relationships between justices' clerks and magistrates.
"Inter-agency relations locally and regionally would be strengthened if the head of service is perceived by those within and outside the service to possess the qualities, qualifications, experience and competencies as those sought and demanded of justices' clerks. The Society is of the opinion therefore that the title to be given to the head of service should be 'Chief Justices' Clerk'".
That is the opinion as expressed on 20th May 1993 on behalf of the Justices' Clerks' Society. I am well aware that since then the society has taken different views of the matter, but that document contains a cogent account of the philosophy which lies behind the proposals in this Bill.
The society also dealt with a matter that was referred to by my noble and learned friend the Lord Chief Justice in connection with one of the later amendments under the title "Legal Forum". I should say immediately that the course to which my noble and learned friend referred was not a legal forum in the sense in which that is explained by the justices' clerks.
I quote again from the society's document in response to the consultation. This may provide some explanation of why the noble Viscount, Lord Tenby, thinks that we did not listen. The following was among the material that was submitted to us as part of the consultation process:
"Justices' clerks and court clerks must be free when sitting in court to give such legal advice as they believe appropriate to assist the magistrates in carrying out their judicial functions. However, the desirability of achieving consistency of advice on a particular point throughout a magistrates' courts committee area is also a relevant consideration. The concept of a legal forum as outlined in the consultative document is supported by the Society. However, it has to be recognised that many points will continue to arise in court which will require an immediate decision. It would be most unfortunate if there was an unnecessary over-use of the legal forum resulting in delays in court following adjournments of hearings pending discussions at the next meeting of the group.
"The legal forum, we have no doubt, provides the best way forward in this difficult area and, in doing so, uses the knowledge and experience of all justices' clerks within the committee's area as a way of improving the legal support given to benches. It is clearly better to have a common approach to legal problems, wherever possible, within any given area, but it is important to stress that if a justices' clerk has a firm view on any point which arises, even if he is completely at variance with his colleagues, then he should be free to give that advice to his magistrates. Justices' clerks are independent practitioners and the legal forum would give an opportunity to discuss and persuade, allowing those present to reflect on the views of colleagues and change their minds, if necessary. Alternatively, they might be able, with better arguments and research, to persuade their colleagues to change their minds subsequently. Whatever the outcome, justices' clerks must feel free to give the advice which they believe to be correct. Until a categorical answer is given in the High Court to issues where there is more than one interpretation,
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then each such interpretation, assuming it to be one of merit, will remain valid. This, in our view, is a fundamental constitutional point which needs to be emphasised".
Clause 71 does just that. It re-emphasises that point.
That is the origin of the legal forum. It came from the justices' clerks. It is not usual to show documents from the Dispatch Box, but any noble Lord who wishes to see that diagram of the legal forum prepared by the Justices' Clerks' Society is very welcome to do so. I shall not attempt to read the diagram, but the narrative states:
'The principle strands are as follows: the chief justices' clerk would have a duty to convene the legal forum at regular intervals; the justices' clerks in the area would be required by their contracts of employment to attend meetings, to participate in discussion and to exchange relevant information and views; there would be scope for the input of other information as indicated in the diagram — including any advice from the Magistrates' Courts Division of the Lord Chancellor's Department; the chief justices' clerk would facilitate discussion; a main aim of the forum would be to agree relevant matters wherever possible and to resolve, or limit, any remaining differences of opinion; others involved in the justice process could be informed of the stance taken and communication on a wider basis could be considered when appropriate; the forum would be expected to consider known developments in other areas.
"Such a mechanism would reduce to a minimum the situations in which conflicting views prevail in an area. Ultimately, the existence of similar discussions across the country would serve to narrow the scope for inconsistency as between areas".
That is the origin of the legal forum, with the suggestion that the chief justices' clerk should convene it.
Perhaps I may say a word or two about the course that was attended by people from inner London. First, it was at the request of inner London that the Lord Chancellor's Department provided some— not all— of the funding for the course. Secondly, the course was provided by the Civil Service College. My noble and learned friend, with his usual courtesy, kindly gave me sight of the account of the matter that was given to him. The account that was given to him by a member of the course does not square completely— as perhaps one might expect— with the recollections of some others who were there, particularly the course tutor. I do not think, however, that we need to go into that.
I agree with the fundamental point which lay behind the reference to the course: that if one is talking about management in the justice system, one needs to have a very clear idea about justice and the need for justice, and that management should be subservient to justice. The whole purpose of the magistrates' courts service is to provide justice. The whole purpose of all those who serve in it, magistrates and staff, is to provide justice.
The various organisations in the magistrates' courts service responded in November 1993 to the Government's White Paper of February 1992. That response was agreed by the Central Council of the Magistrates' Courts Committees, the Magistrates' Association, the Justices' Clerks' Society, the Association of Magisterial Officers and the Standing Conference of Clerks to Magistrates' Courts Committees. The whole document is available, but I should like to quote from Appendix 1 which contains a description of the chief executive's job— by this time the justices' clerks were going for a chief executive. The section gives an "illustrative job description" for the chief executive and reads:
'The chief executive will be responsible for the implementation of the decisions of the magistrates' courts committee in

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accordance with its policies and requirements. He will lead the management team, be the committee's principal adviser and convene the legal forum and within it facilitate discussion between the justices' clerks".
shall not read it all because your Lordships will become weary if I try to do so, but among other things the chief executive has to represent the MCC with the officers of other agencies. A very important function, deriving from the responsibility of the magistrates' courts committee, is set out in paragraph 9. It is, in consultation with magistrates,
"to prepare and implement an effective policy for the training and development of magistrates".
So the head of service is to have the responsibility of preparing in consultation with magistrates and implementing an effective policy for the training and development of magistrates. I would have thought that it was a retrograde step to have a person in that position who was not qualified legally in that connection.
That is the proposal for an alternative framework agreed by all the communities in the service. The proposals that I have made in the Bill are entirely in accordance with the arrangements which presently exist in Inner London but the title of the office in Inner London is "principal justices' clerk". On a number of occasions my noble and learned friend has drawn to my attention the difficulty about the title and I am perfectly willing to change it. I believe that it would be a retrograde step to change it in such a way as to take "justice" out of it. I also believe that it would be a mistake to change it in such a way as not to indicate that the person in question is a principal. The reason that I have not changed it up-to-date— apart from wishing first to have these discussions in your Lordships' Committee— is that the title was supported on consultation by the Justices' Clerks' Society, which is the professional body best qualified to judge the matter.
My noble friend Lord Peyton moved Amendment No.172. I find that a difficult amendment to take by itself because one of the important functions of justices' clerks which can yield economies on a larger unit is the amalgamation of fine accounting. Under the present statutes, fine accounting requires to be under the control of a justices' clerk. He must certify that the fine has been imposed and collect the money. If sufficient money is not paid on instalment, he must initiate the necessary action to enforce it. I do not believe that accounting would cover all that. Therefore one of the important points of the possible economies is left out.
I wish to say a few words about Inner London where the proposal has teen tested out for a long time. The Inner London service includes approximately 800 lay magistrates in addition to approximately 50 stipen-diaries. In Inner London there is already a single head of service and has been for many years. The principal chief clerk, who is legally qualified and has all the powers of a justices' clerk, is the head of service in the Inner London area. The general style of this post is similar to that which I envisage the chief justices' clerk having with his justices' clerks. None of the difficulties which have been anticipated in this debate have come about. The present principal chief clerk in Inner London, Ian Fowler, who is a very experienced principal chief clerk and is about to retire, has written to me. He stated:
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"I provide a central liaison point for all the other agencies with which the Service must co-operate— the Lord Chancellor's Department, Home Office, Police, Crown Prosecution Service, other prosecutors, local authorities, the London Criminal Courts Solicitors Association, which acts as the local law society, and the Probation Service. Those agencies expect my response to be that of a lawyer.
I either chair or am a member of a number of internal committees on which chief clerks and other members of staff serve. An appreciation of the legal implications of the matters discussed is important, and I consider my contribution in achieving decisions has depended on my ability to rake part fully in discussion of points of law.
I do not believe it would be possible for a chief executive to provide adequate leadership to a group of clerks and to secure their full co-operation in achieving best practice throughout the area.
I need to initiate and chair meetings with other agencies, including a User Group for the Service and am expected to be able to speak on behalf of my colleagues as a lawyer.
I need to understand the limits of my authority with regard to my colleagues' judicial responsibilities, but not to be intimidated"—
that is an important proviso—
"into allowing that limitation to extend beyond proper limits.
I expect to be consulted about problems, to be approached for advice, to give support and to take part in discussion of legal questions."
Those are the main issues that I wish to put before the Committee.
As regards the precise title, I am willing to consider what might be appropriate. I believe that my noble and learned friend's clerk would normally describe himself in correspondence as "Clerk to the Lord Chief Justice". However, I understand that there might be room for anxiety about that.
In view of what I have heard today about centralising, it may be useful to remind the Committee of a passage from Campbell's Lives of the Chief Justices of England. He considers that the Chief Justice has descended from the office of Chief Justiciary, introduced into England by William the Conqueror from Normandy, where it had long existed. Campbell comments:
"The functions of such an officer would have ill-accorded with the notions of our Anglo-Saxon ancestors who had a great antipathy to centralisation and prided themselves upon enjoying the rights and advantages of self government".
The appreciation of centralisation changes over the years.
The office of the Lord Chief Justice shows that where it is a matter of judicial independence, the fact that the style "chief' is associated with one of the judges does not mean anything against the judicial independence of his brethren; the Lord Chief Justice is chief justice among justices. The title of "Chief Justice" has a long history."Chief Baron" was another title in the Exchequer area. All the barons were judicially independent one of the other. The fact that somebody is chief does not necessarily mean that that person has a right in all matters to overrule his brethren. I am sure that in the judicial field all understand well that the chief justice is not entitled to give directions in judicial matters to his brethren except in so far as he may from time to time sit in a court which is superior to them, and by virtue of whose decisions they may be bound.
As regards the legal forum, I liken it to the situation which exists in court with a number of members. In this Chamber the normal complement of the Appellate Committee is five; there are five independent Members

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of the committee. From time to time, I have the privilege of chairing that committee. After the conclusion of that hearing, we hold a legal forum in which the individual members express their views. We have a discussion as a result of which the views of some may change or the views of all may remain the same. There is nothing improper about that; it is a perfectly proper exercise of judicial independence. On the whole, if we can reach agreement, we do so. Dissents are not uncommon, and I am sure that in the legal form convened by the principal officer of the magistrates' courts committee dissents will also take place from time to time. That will in no way impede the effectiveness of the forum.
As regards the title, I am content to take an alternative. I should prefer a title which retained a reference to justice; but "chief' can give way to "principal" or anything else. The local officers of most locally managed organisations are described as "chief officers" and that is one of the reasons for choosing this title.
As regards the nature of the qualifications and so on of the head of service, I consider that the principles which the Bill enshrines are the correct principles and are likely to give the best value and most effective support to what is essentially a justice system. I invite my noble friend Lord Peyton to allow me to consider the question of the title. I should be glad to know what other Members of the Committee wish in that regard. I do not want to accept the amendment in its present form because I do not believe that "chief executive" is the best title in this situation. However, I am open to suggestions. At present, I believe the best title to be "principal justices' clerk", although that is not such a common title in local organisations.
My objection to the other amendments is more fundamental but I have sought to set out my reasons for not wishing to accept them.
Lord Donaldson of Lymington: At this hour I am sure that no one would wish me to add more than the very minimum to the debate, and I do not propose to do so.
The remarks made by the noble and learned Lord the Lord Chancellor seem to have been addressed largely to the question of whether the head of service should be legally qualified and have had experience as a justices' clerk. The furthest that the Justices' Clerks' Society ever went in May of last year was to say that "he should hold or have held". But that is not what the debate has been about.
The noble Lord, Lord McIntosh, made it quite clear at the beginning— and nobody has contradicted him— that we are talking about the division of functions and the independence of the executive side from the judicial side. That is what this is all about. The Lord Chief Justice made it clear that that is what it is all about.
The answer of the noble and learned Lord the Lord Chancellor to that is that it works all right in Inner London. I do not doubt that it does; it has worked for many years in Inner London. But that is the point. Some years ago, those problems did not arise because people accepted that judicial independence was a reality and
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that no one would attack it. I regret to say that, for one reason or another, those days are gone. Nowadays we are forced into the position where, rightly or wrongly, we feel that we must defend judicial independence at every stage. This is one of those crucial stages at which, as the Lord Chief Justice has so clearly demonstrated, a stand must be taken. It is not for me to say whether that should happen at this stage or another stage of the Bill but a stand must be taken.
Lord McIntosh of Haringey: I regret having to come back on this matter because I have already spoken in the debate. Although the noble and learned Lord the Lord Chancellor made a splendid debating speech, it did not address the issues covered by the amendments.
First, the noble and learned Lord the Lord Chancellor made what is purely a debating point; namely, that the word "justice" does not appear in the title proposed. He then said that it appears in Inner London. In Inner London the title is the principal chief clerk and not the principal justices' clerk. Therefore, that part of the case does not stand up. Also, the relationship between clerks and the principal clerk in Inner London is different because a large part of the Inner London magistracy is made up of stipendiary magistrates. The point that we have made about local magistrates' Benches and local magistrates' courts committees is that they are made up of lay magistrates. The role of the justices' clerk is to provide legal advice, the only legal advice which is available to them. That must be kept separate from the administrative position of what the amendments call the "chief executive".
I am not wedded to the title "chief executive". Perhaps it would be better to call him the "principal chief clerk". I am sure that we could reach agreement about that. However, the important point is to record that the administrative function is different from the legal advice.
Quite frankly, to quote the evidence given by the Justices' Clerks' Society in May 1993, when the Lord Chancellor acknowledged that that is not now its opinion, is to make not much more than a debating point. After all, in May 1993 the Government supported the idea of an elected police authority for the Metropolitan Police in Greater London. They changed their minds and they have the right to do so. Nobody objects to that. The Lord Chancellor was at the very well attended special general meeting of the Magistrates' Association on 9th October last year. Therefore, he knows that the magistrates, and not just their leadership, objected en masse to the provisions of the Bill. It is now the view of the Justices' Clerks' Society, the Magistrates' Association and all the other organisations with "M" and "C" in their titles— and I shall never learn to remember them — that the separation between administration and legal advice to magistrates is essential to the effective and just working of the local magistrates' system. What was said in May 1993 and what happens in Inner London do not fundamentally affect the issue.
Lord Wigoder: The noble Lord' referred to the observations of the Justices' Clerks' Society as being a mere debating point on the part of the noble and learned

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Lord. It is not even that. When the noble and learned Lord considers afresh, as I hope he will do, the title and qualifications required for the person whom everybody agrees is to be the administrative head of the service, will he bear in mind that, though the Justices' Clerks' Society, which has made many extremely helpful observations in tie course of the progress of the Bill, gave the initial reaction on which the noble and learned Lord is seeking to rely so heavily, it is common practice for every trade union, on hearing that a number of new and important senior jobs are to be created, to say that those must be reserved to the qualified members of the union?
'The Lord Chancellor: I should hesitate to attribute that motive to the particular observations which the Justices' Clerks' Society was kind enough to give me, because in the passages which I read it was demonstrated that it was not merely the society's view but the reasons for that view that I was putting before the Committee.
Lord Ackner: On the point made by the noble and learned Lord the Lord Chancellor as regards the name, the name consistent with his philosophy should always have been justices' chief clerk. I cannot understand how chief justices' clerk ever came into it. From the noble and learned Lord's standpoint, the name was justices' chief clerk. That includes the words "justice","chief' and "clerk".
The issue here is quite simple. The title should be justices' chief executive; that is the point which we are all debating. It s that point on which we should concentrate.
Lord Taylor of Gosforth: With respect to my noble and learned friend, I feel that he has, in what was described as an excellent speech, bypassed all the real issues in the debate. It is right to say that his speech was long on citation arid very short on answers to the points raised. I am sure that it is well known to my noble and learned friend, as it is to any other lawyer, that when one is in difficulties in court, one cites a few authorities.
The citation which my noble and learned friend relied upon and put at the forefront of his argument has now passed because the Justices' Clerks' Society has thought again and has seen the significance of what is intended in the Bill and what may result from it. That society has shown rather more flexibility than has my noble and learned friend until now.
The question is whether the individual, whatever he be called and whether or not he is legally qualified— I am not against him being legally qualified and, if a magistrates' committee wishes him to be legally qualified, so be it— should deal with the administration and should not be erring and veering into the court and what goes on in the court.
My noble and learned friend referred to the forum as though I and those who are with me object to there being a forum from time. o time; not at all. As I said, the effect of Amendment No.178 would be to allow a forum to take place with justices' clerks meeting and discussing common issues and reaching some common conclusions. There is no reason Why they should not be
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convened by the chief executive, but what I object to is the idea that they will be there with the headmaster, and that the headmaster may indicate to them that the throughput in their courts has been rather too thin, that they have been granting too much legal aid and that they ought to be granting adjournments less frequently and so on. Or, if he does not say that frankly and overtly, they may well get the feeling that they had better cut down the number of adjournments and the legal aid and they had better step up the throughput to achieve favour with the chief. He ought not to have any part in any of that. That is the real issue here. I hope that the Committee will see it as being not only fundamental to this Bill, but fundamental to the administration of justice in this country.
7.30 p.m.
Lord Peyton of Yeovil: We are indebted to my noble and learned friend for having given us much material on which to ponder and reflect. He has made much of Mr. Cramp's earlier opinions. Happily I am in the privileged position of being able to give the latest version of Mr. Cramp's opinions as I spent some time with him today. He comes from Yeovil and I myself come from that neighbourhood. As I was anxious to avoid mistakes and to avoid outraging a profession which felt itself to be in some jeopardy, I went so far as to prepare the remarks which I intended to make today in this Chamber and then to repeat them to Mr. Cramp. I asked him clearly whether he had any reservations or difference of opinion with what I proposed to say. He made it absolutely clear that he had none.
It is clear to me that Mr. Cramp has changed his views, as have the members of his association. It is possible— it seems to me at least very likely— that that change of views has been brought about because of an increasing awareness of the dangers of what is now proposed. As regards the title, my noble and learned friend has, I believe, said sufficient for me to say that I would not wish to vote on this particular amendment. But perhaps I could now take him to Amendment No.178 which is grouped with this one. It seeks to amend the proposed new subsection 24E(3) on page 36 of the Bill which states:
"It shall be the duty of the chief justices' clerk to promote discussions relating to law, practice and procedure among the justices' clerks for petty sessions areas within the area of the committee".
My amendment seeks to remove the words "chief justices' clerk" and insert "justices' clerks". My noble and learned friend made it very clear that he had a more fundamental objection to the other amendments which stand in my name and that of others.
I hope that my noble and learned friend will be able to assure me of a willingness to look at not only the principal Amendment No.170, but at all the others grouped with it because they seem to be very much part of a pattern. I apologise to the Committee if I erred in not dealing in detail and separately with each one of those amendments in my opening remarks. I take all of those amendments very seriously and I would be deeply disappointed if my noble and learned friend did not feel able to say that these are serious matters. Without the

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amendments which I am suggesting, the proposed appointment of a chief justices' clerk, or whatever one may call him, will be in danger of being given an ascendency in matters legal which he ought not to have.
Lord McIntosh of Haringey: Before the noble and learned Lord the Lord Chancellor replies, I wish to commend to the noble Lord, Lord Peyton, his own amendment, Amendment No.172. He appeared to be thinking that because the name is not absolutely critical and because the Government have indicated that they will think again about the name, we could skip to Amendment No.178. I do not believe that that is the case. Amendment No.172 would remove the provisions as regards the chief justices' clerk being qualified to exercise, and being capable of exercising the functions of justices' clerks. The division between the administration, whatever the head of paid service is called, and the legal advice given to lay magistrates by the justices' clerks is absolutely critical to the argument. I am sorry to say this again but it has to be said as many times as is necessary. I hope that if the noble Lord abandons Amendment No.170, he will not abandon Amendment No.172.
Lord Peyton of Yeovil: I never said that I was going to abandon it. I was going to put Amendment No.170 into "dry dock", if that is the proper place for such an amendment. As regards Amendment No.172, I merely picked out Amendment No.178 because it had been particularly referred to, I believe by my noble and learned friend. I am now asking him to reflect on all the amendments which are grouped with Amendment No.170 and to give them serious thought before the next stage of the Bill.
The Lord Chancellor: I hope I have made it clear that I consider this to be an extremely important issue on which, at the very least, the professional association of justices' clerks has changed its mind, having given reasons for thinking that what we wanted to do originally was right. I thought it right to refer to that, particularly having regard to the fact that the noble Viscount, Lord Tenby, has said that our consultation documents were part of a public relations exercise and did not take note of what was said. It is true that some of those consulted have changed their minds but I do not think that can necessarily be held against the consultation process.
These are all issues of great importance. I must point out to the Committee, in case I have not done it effectively already, that Inner London is a place where these particular functions are vested in the one person. There are other places where the clerk, or the head of service, is a justices' clerk as well as being clerk to the local magistrates' courts committee. The type of formulation which the noble Lord, Lord McIntosh, has proposed will certainly require consideration of whether these arrangements, which have stood quite good test in many places, will work. I believe, for example, that on the Isle of Wight the justices' clerk is also the clerk to the magistrates' courts committee and that works perfectly well.
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However, I shall certainly consider carefully all that has been said. I believe that this issue merits going over more than once. Some Members of the Committee were kind enough to describe my speech as a debating speech. I regard these matters as of vital importance. No doubt debate plays some part in obtaining the correct answer, but I believe that consideration of what is said also plays some part in that process. I am glad to seek to contribute to that process.
Lord Peyton of Yeovil: I find myself in a difficult position. I do not want to divide the Committee at this stage and to endanger the consensus on this Bill which, as I said at the beginning of my remarks, it behoves us all to seek. I do not want to go back on that, but I hope that my noble and learned friend will understand beyond peradventure that if I withdraw these amendments we would expect some movement towards consensus on his part before Report stage. I do not know whether my noble and learned friend feels able to add anything that would be of comfort to me.
The Lord Chancellor: I shall consider carefully all that has been said. I have already indicated very plainly that I can see a means of movement on the title of the post. It may be that further movement is possible. That is the purpose of the further consideration. I should love to reach a consensus on this matter. If one group can change its mind so can others.
I am extremely anxious that the head of service should be somebody who has authority in the service and has authority to represent the service outside it. It may be that all the aims that have been expressed can be achieved together. If so, the consensus that my noble friend seeks will be achieved.
Lord Peyton of Yeovil: I am sorry to intervene. Can my noble friend say that whatever the official is called he will have no judicial or quasi-judicial function?
The Lord Chancellor: I have just pointed out that there are some circumstances in which he already has such a function. I cannot say what my noble friend wants me to say. But I shall certainly consider the extent to which those should be matters for the local committee. In Inner London the principal chief clerk is also a clerk in each of the petty sessional divisions within Inner London. That is a combination of administrative and advisory functions to justices. Therefore, I do not think it right to go to the length of saying that I would want to cut that link in Inner London, for example. However, I shall certainly consider with those who wish to discuss the matter with me what other steps might be taken. I believe that the model which exists in Inner London is a very effective model for the management of a system which includes justice.
Lord Peyton of Yeovil: I should like merely to add that I believe that in other parts of the country there are people who discharge these functions and who are adequately described as chief executives.
The Lord Chancellor: That is also the case.
Lord Peyton of Yeovil: I hope that I have the sympathy of the Committee in what I find a very difficult decision. Having in mind what I said at the start, that it is incumbent upon us all to seek consensus on the Bill before it leaves this Chamber, I do not feel inclined to press all or any of the amendments to a Division tonight. I say that on the very clear understanding that my noble and learned friend will undertake not only to reflect on the matter, but to listen very carefully to further representations on the subject from those of us on the Benches behind him who feel very strongly about it and consider that we are in danger of making a serious error. I hope that in particular he will listen to the noble and learned Lord the Lord Chief Justice, who has spoken with such cogency and experience that it is almost impertinent for me to add anything to what he had to say.
Viscount Whitelaw: I hope that we shall not press the matter to a Division tonight because that does not seem at all fair to my noble and learned friend the Lord Chancellor. As I understand my noble and learned friend's position, as a simple non-lawyer who has listened to a great many lawyers for a long time, with much pleasure for once, surely it is right that my noble and learned friend the Lord Chancellor should be able to consider all the available alternatives. If by Report stage he has not found a solution which is satisfactory to noble Lords, the answer is perfectly simple. Noble Lords may put down whatever amendments they wish and vote against the noble and learned Lord the Lord Chancellor because he has failed to carry out what he has been asked to do by my noble friend Lord Peyton. Surely that is better than trying to settle the matter tonight. My noble and learned friend the Lord Chancellor should be given the opportunity to find a solution. I believe that that can be achieved.
I should love to see a different word, but I am the last person to know what it should be. I am sure that someone else will find a much better word and we shall all be happy when it comes to Report stage.
Lord Peyton of Yeovil: I apologise to the Committee. I thought that I had made it clear that I wished to withdraw Amendment No.170 and would not move the other amendments on the understanding that my noble and learned friend would reconsider the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House do now resume. It may be for the convenience of the Committee if' the consideration of the Bill is resumed at 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Non-Domestic Rating Bill
7.45 p.m.
Read a third time.
Baroness Hamwee Baroness Hamwee moved the amendment:
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Page 2, line 41, leave out from ("Act)") to ("for") in line 42
The noble Baroness said: My Lords. with this amendment we return to a matter which has been debated at both the previous stages of the Bill in your Lordships' House and which has received a consider-able measure of agreement, although different words have been used on different sides of the House to express that agreement.
The issue is whether, in dealing with transitional relief for non-domestic rates such that the pool of money derived for local authorities is less than it would otherwise have been had transitional relief not been applied, the Government shall be bound to make up the shortfall or shall merely have a power to make up the shortfall.
Under the present transitional arrangements the Government are bound to make up that shortfall. In this Bill the Government seek to reduce their obligation to a matter of their own discretion. With the amendment I seek to return to the provision which currently applies; namely, that the Government shall be bound to make up the shortfall.
I said at the previous stage that I did not have lengthy arguments to put before your Lordships because I did not feel that it was my duty to do so. I felt that it was the Government's duty to justify why they seek to make a change.
The Minister has given assurances— indeed, I would go so far as to describe them as undertalungs— that if there is a shortfall in the future the Government will make it up. As I have made clear before and I gladly do so again, I do not seek to impugn the integrity of the Minister in debating the matter on yet another occasion. However, assurances, undertakings or commitments given to your Lordships, while important and valuable, do not have the force of statutes.
In giving his assurances the Minister has indicated that he agrees with us on the importance of the matter. If that were not so the Government would not have given undertakings. He has also indicated sympathy for this approach in dealing with the matter. In introducing the matter yet again at this last stage of the Bill, I hope to give the Minister the means of putting, his good intentions into practice and putting the provision on the face of the Bill. Perhaps it would be more accurate to say that the Bill should make no mention of the matter because there is no need to say anything about it as the current legislation says all that is needed.
I understand the anxiety to complete this piece of legislation in order that local authorities can send out their bills. The noble Baroness, Lady Hollis, whose name is also to the amendment, will have something to say about that and how the progress of the Bill might be assisted.
In putting forward the amendment, I make it clear that there is no wish to make life more difficult for the local authorities by adding to the time pressures on them; quite the contrary. We seek to make fife clearer for the local authorities.
There need be no long justification' for the argument from our side of the Chamber. The Government have made out no case other than that the provision is not

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necessary. They have not made a good case for a change in the law. They have left us with assurances which we do not wish to doubt. However, the longer the debate goes on the more concerned one is as to the weight of assurances when the Minister is no longer a Minister in the department, and life and people have moved on. We might then be dealing with a government who may not regard themselves as quite so close to the assurances given over the past few days. I beg to move.
Baroness Hollis of Heigham: My Lords, we are happy to be conjoined in the amendment. We spoke to similar amendments at Committee and Report stage. We warmly support the amendment and hope that even at this late stage we may persuade the Minister of its reasonableness.
The Minister agrees that government in practice will deliver the amendment: that in practice it is not the business community or the local authorities but the Government who will guarantee to provide any necessary deficit funding incurred in any subsequent transitional relief arrangements. The Minister promised that at Second Reading. He promised it at Committee. He repeated the promise at Report stage. It is an unambiguous promise. Therefore there is no difference between the Opposition Benches, the Minister, business communities or local authorities on the need for that undertaking. That undertaking has been given without qualification."It will happen", the Minister says,"if necessary".
However, our problem is this: will it? Why have we been pressing so hard at yet a third round of amendment? The reason is that the refusal to have the provision on the face of the Bill is an innovation. In the past the provision was on the face of the Bill and therefore local authorities' positions were protected. The Minister is no longer offering to keep the provision on the face of the Bill. Despite the Minister's statement, good faith and integrity, there must be a worry that he does not intend to bind his successors by law, as his words suggest.
Why therefore are we pressing the amendment? First, it is because we are dealing with primary legislation. It is the job of this House to be concerned not with comments and undertakings but with Bills and the law. It is therefore important that when local authorities, business communities, citizen's watch groups and the like read the Act they know what they are entitled to. They do not have to go through well thumbed back copies of Hansard on an obscure dinner hour break debate to understand the Minister's intentions. The laws of the land should be simple, clear, accessible and unambiguous, and should enshrine ministerial intention. If he has that ministerial intention, and if it is simple to put that on the face of the Bill, a priori it should be there. Only if there are good practical reasons for the provision not to be on the face of the Bill could we support the Minister on that argument.
Secondly, primary legislation does not involve just an undertaking or a commitment. It is binding. A verbal undertaking will bind this Minister in honour; I am sure that he will honour it. It cannot bind his successors. How
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will a local authority enforce the Minister's undertaking against a successor Minister? He must tell us how they would do that if his undertaking is to be more than words. How can it be enforced if the provision is not on the face of the Bill?
The Minister will say that his statement is good enough. If that were so, it would make redundant half the legislation in the country. I am quite sure that at present the Home Secretary would like to say,"My statement is good enough. We don't need it on the face of the Bill. Go away with your amendments". With regard to the railway Bills, the Transport Secretary might like to have said,"I have given my undertaking. That is good enough". With regard to the DTI and pension schemes, the Minister might like to have said to the miners,"My undertaking is good enough. It does not need to be on the face of the Bill". While respecting the integrity of Ministers who make that point, your Lordships have never envisaged such a statement as a substitute, where practicable, for a commitment and undertaking within the Bill.
Finally, is it practicable, even at this stage, to have the provision on the face of the Bill? It was suggested by the Minister that there might be problems for local authorities because an amended Bill would need to be further discussed in another place, and that would produce delay; it would affect local authorities' ability to get their bills out on time. In good faith we have done our best to explore that problem. So far as concerns another place, my understanding is that both the responsible shadow Ministers and the usual channels would use their best offices to expedite such an amended Bill. Therefore there need be no delay in another place other than a few days. If the Minister were minded to accept the amendment, such a clause would not make a penny difference to any bills which local authorities sent out. I understand the Minister's worry if it did; it does not. The clause merely gives an undertaking that in future the Government will pick up deficit funding. The provision makes not a penny difference to the bills that local authorities will send out. The authorities know now what they will bill their businesses for. They will still send the bills out by computerised systems and the like. There need be no problem.
With regard to local government, we have often not handled our rates debates until the first week in March. Authorities have a fortnight to send out the bills; and the rates take effect from the first week in April. There need be no problem. We can easily and confidently meet the same timetable, given the assurances that we have had that the matter will be expedited in another place to people's best endeavours.
Therefore both sides agree on the principle. We on this side believe that we have helped to sort out the practical problems. If the Minister cannot tell us how his undertaking given in honour can subsequently be enforced by a local authority, and if he accepts that that could present a problem in future— I believe that he must since it has presented a problem in the past— can we hope that the Minister will now support the amendment?
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Arran): My Lords, I suspect that both the noble Baroness, Lady Hamwee, and the, noble Baroness, Lady Hollis, will expect me to be fairly brief on the issue because we have gone through it quite a few times before. As I explained at Report, we are fully aware of the importance which local authorities attach to ensuring that the pool is not depleted. That is why my honourable friend the Minister of State for Local Government and Planning gave the unequivocal assurance that we would always top up the pool if any future transitional arrangements left it short. I have repeated that commitment over and over again in your Lordships' House. I have also explained why we do not wish to delay the Bill unnecessarily. I believe that because of the commitments we have given any change to the Bill is unnecessary.
I say again, we believe that we have gone as far as we can to meet the noble Baronesses' concerns. Therefore those are the arguments that I use for not accepting the amendment.
Lord Williams of Elvel: My Lords, before the noble Earl sits down, will he recognise that he advances a rather novel constitutional doctrine? It runs as follows. Parliament decides this and thus. What Parliament decides is in an Act of Parliament which receives the Roy al Assent. That is perfectly clear. In the case that we are considering, there is a permissive power for the Secretary of State to do certain things, amending, as the noble Baroness, Lady Hamwee, rightly said, previous legislation which obliged the Secretary of State to do certain things.
In addition, the noble Earl is now saying that we have a new constitutional procedure whereby ministerial assurances, of whatever nature they may be and with whatever conviction and vigour they may be made, are also part of the law of the land. Parliament no longer decides what is the law of the land; it is Ministers who will say: "Parliament may have decided that the Act should be permissive; nevertheless, in giving these categorical assurances, Ministers bind future Ministers who will bind other future Ministers from here to the hereafter". That will presumably be defensible in the courts because it is what the noble Earl intends. Therefore, local authorities can be satisfied. I should be grateful if, before he sits down, the noble Earl could expand on the constitutional problems that he raises this evening.
The Earl of Arran: My Lords, the noble Lord, Lord Williams, tries to draw me into discussion or argument on what he called a "novel constitutional doctrine". I do not believe that to be the case. The case which I advanced is a government assurance on this measure; I have advanced it continually throughout the debate and throughout the Bill in your Lordships' House. It has also been advanced continually and consistently in another place and I do not believe that it involves or brings into being a novel constitutional doctrine. I have to say to the noble Lord, Lord Williams, that is so far as we can go, from our point of view, on the assurances we have given in this case.
Baroness Hamwee: My Lords, the noble Baroness, Lady Hollis, referred to "well-thumbed … copies" of Hansard, thumbed by people who read our speeches over and over. I fear that is not the reality. People go to the Act. They expect to see what the situation is. They do not even find the small print. It is not a question of their failing to look for it; they will find no small print that says: "Refer to the Official Report for 22nd February, and readers will find unequivocal assurances as to the application by the Government of the provision in Clause 3 of the Act". That will not be there.
I had hoped that we would hear some new arguments or even some arguments. We are deprived of any logic as to why the amendment which I arid the noble Baroness, Lady Hollis, seek should not be implemented. I believe I understand the political realities; I am sad about them. Every effort has been made to ensure that the right thing is done. So far as I am concerned, this is not a matter of playing politics; it is a matter of getting the right outcome. For that reason, I wish to test the opinion of the House.
8.3 p.m.
The Principal Deputy Chairman of Committees (Lord Boston of Faversham): My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say,"Content"; to the contrary,"Not-Content". Clear the Bar.
Division called.
Lord Williams of Elvel: My Lords, it is unusual to speak during a Division. I hope that your Lordships will allow me to do so. The door leading to the Content Lobby is apparently jammed. Therefore, those who wish to vote Content have had to go out of the House and back into the Lobby. As I understand it. that is not consistent with the procedures of your Lordships' House. In addition, at the point when the noble and learned Lord the Lord Chancellor got up the second time the appropriate door should have been locked. Therefore, the Tellers were unable to get into the House in the proper manner. They had to go out of the House and back into it past the normal door. I believe that your Lordships should give consideration to the question whether this Division has been handled in a proper manner, and whether further action should be taken.
Baroness Hollis of Heigham: My Lords, I believe that we should divide again.
The Lord Privy Seal (Lord Wakeham): My Lords, I do not believe that I am able to make any constructive suggestion to your Lordships. I very much regret that the normal procedure has not happened. What I am not sure about is whether or not in practice it has inconvenienced anybody to the point where the vote is sufficiently in error that other measures should be considered. However, as the vote has been completed, we should perhaps know what the result is and decide what to do.
The Lord Chancellor: There have voted: Contents,31; Not-Contents 73. The Not-Contents have it.
8.15 p.m.
Lord Williams of Elvel: My Lords, I believe that this vote is technically invalid. However, given the fact that we are at a late stage in the evening and there is more business for your Lordships to do, we on the Opposition Benches do not wish to have the vote taken again and the door unjammed. However, I very much hope that arrangements will be made so that in future we can vote normally according to the proper procedures of the House.
Lord Pitt of Hampstead: I do not know that I can agree with my noble friend that the vote is technically
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invalid. We ought to be able to vote in a proper way. Since it was not possible to vote in the proper way, the vote was valid.
Earl Russell: My Lords, I understand that the House is sovereign in its own procedure. There is no bad faith on anybody's part. It is for the convenience of the House that we choose to validate the Division. I therefore second the Motion moved by the noble Lord, Lord Williams of Elvel.
Lord Wakeham: My Lords, I am grateful to noble Lords who have contributed to the debate, particularly to the two noble Lords who think that the best way forward is as suggested by the noble Lord, Lord Williams of Elvel. I very much regret that the arrangements did not work properly. I believe that the proposal of the noble Lord, Lord Williams of Elvel, is the right one and certainly has my support. However, I will have discussions with those who are responsible for locks and keys to make sure that this does not happen again. I will discuss it with the usual channels to make sure that if the House ought to consider the matter again it will do so. But I would have thought that we ought to accept the Division as proposed by the noble Lord, Lord Williams.
The Lord Chancellor: My Lords, I believe that I should put the Question in the form in which the noble Lord, Lord Williams of Elvel, has proposed it; namely, that despite difficulties at the entrance to the Content Lobby, the House should hold valid the result of the Division.
Amendment negatived.
The Earl of Arran: My Lords, I beg to move that this Bill do now pass.
For a small Bill which was intended to give nothing but good news to businesses, this measure has received a rather more turbulent ride through both Houses than expected. Your Lordships may recall that the two previous Bills on the transitional arrangements— the big brothers of the measures now before the House— were by comparison very well received.
In fairness, I must accept that this Bill goes further than the previous two by looking forward to the transitional arrangements that may be needed for 1995– 96 onwards. As we have told your Lordships, we shall be looking at the need for such arrangements once we have firm indications of the effects of the revaluation from the Valuation Office Agency in the spring. We are already having preliminary discussions with local authority and business representatives about the likely outcome. We have also had some interesting debates on the question of the targeting of any such arrangements. Although our aim must be to keep any arrangements easy to understand and administer, we shall certainly take the views of the noble Baroness, Lady Hollis, into account in our deliberations.
We expect to consult formally on our proposals in the summer. Any new arrangements will require the approval of both Houses, and the necessary regulations will have to come into force by 1st January next year. The House will therefore have an early opportunity to consider this matter again. Meanwhile, this Bill will

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reduce the rate bills of businesses who will otherwise be facing increases of up to 20 per cent. in real terms in 1994– 95. It will provide relief for around 360,000 properties in England to the tune of some £ 90 million in revenue forgone. Over 80 per cent. of the beneficiaries will be small properties. Businesses in Wales will save some £ 5 million. The passage of this Bill will ensure that local authorities can take the reductions into account in their rate demands which will be going out in the next week or so. I beg to move.
Moved, That the Bill do now pass. — (The Earl of Art an.)
Baroness Hollis of Heigham: My Lords, from this side we wish to thank the noble Earl, Lord Arran, for the courtesy with which he has conducted the debate throughout the proceedings, the noble Baroness, Lady Hamwee, for her consistent support on behalf of local government— an honour which I believe we share— and my noble friend Lord Williams of Elvel for the amendments that he has moved. It would have been a pleasure to have said that as a result of our deliberations it was a better Bill. Alas, we cannot do that because the Government have refused our amendments.
1 believe that all of us accept the need to offer transitional relies' to soften the major effect of revaluation on the one hand and the introduction of uniform business rates on the other. As the noble Earl, Lord Arran, said in his introduction, in our amendments we sought to do two things. First, we tried to get the Minister to accept the principle that such relief— which, after all, would amount over a three-year period to £ 2 billion of Exchequer income forgone— should not be indiscriminate and that PLCs and utilities should pay their proper share, which was the amendment moved by my noble friend Lord Williams. Second, such relief should be targeted on the most necessitous— usually smaller businesses— as identified perhaps by the number of their employees, their profitability or the national insurance payments that they represented. We were pleased to see that in the course of the debate the noble Earl accepted that public assistance of this kind should go to very carefully selected, that is, targeted, recipients. We look forward in any transitional Bills to the targeting of such relief. We accept that that would have been a policy departure. It was perhaps optimistic to expect that the Government could have accepted such an amendment quite so late in the day after the Bill had been through the other place.
That was not true for the second major debate which we again explored tonight; namely, the debate associated with deficit funding— the "shall/may" issue, as it were— in which the Government had previous legislation which bound the Government to pick up any deficit funding necessary. With this Bill we now see that requirement removed; it merely becomes a power for government to pick up any deficit funding. But, says the Minister,"Don't worry. We still mean to do what was in the original legislation all along". When we asked,"Why therefore change it this time round? If you mean to continue your previous practices, why in your Bill do you announce that you are going to depart from them?", I have to say that we had no answer. When we pressed
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the Government and asked how local authorities can enforce that undertaking, we had no answer. So in that very important respect we have a very unhappy situation in which legislation under previous Bills has been changed, even though the Minister says that the change was not necessary because he does not propose to follow it but proposes to stick to old practices. In which case, we ask: why make the change? We have had no reply.
What those debates also show is not just that relief should be targeted and that any deficit funding should be on the face of the Bill as picked up by central government; in a more profound sense, they show the nonsense of national non-domestic rates altogether. They are pulled in by central government on the basis of business, and are distributed back on a population basis. In the process therefore the link is broken between any local authority support that is given to business and the revenues that business and local authorities subsequently enjoy in their community in any direct connection. If revenue comes back on a population basis, then whatever a local authority does or does not do to support business makes not a farthing worth of difference to the revenue that it will subsequently enjoy. I profoundly believe that the Government were very unwise to break the connection between local business, the local economy, the local community and the local authority. It is a connection that any government, of whatever political persuasion, should have sought to forge, not to sunder. This Government have chosen to sunder it. We continue to see the consequences of that decision.
Business rates should be delivered and determined by an elected local authority in consultation with its business community on its assessment of the appropriate contribution that that business community should make to local needs, perhaps linked to any rise in council tax.
The debate has also shown the necessity for regular business revaluation— possibly even of rolling revaluations, if that were permitted— to avoid the massive hikes that we have seen over the past three years and which we hope can be avoided over the next revaluation. But that of course requires a rather different management of the economy— for which, I suspect, we need a rather different government.
Baroness Hamwee: My Lords, I too thank the Minister for his courtesy and for his many unequivocal assurances during the course of this Bill. The debate has had its moments, and perhaps a slightly bizarre end. But important points have been brought out in the debate over the past few days. The question of targeting was rightly raised by the noble Baroness, Lady Hollis; as was the question of privatised industries, on which, as the noble Lord, Lord Williams, continued to expound his arguments, the clearer the strength of his arguments became.
With regard to the question of the shortfall, the argument has been won. There was no supporting argument as to the Government's position. However, it would be churlish not to welcome the undertakings that have been given, or the transitional relief, which is

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clearly so desperately needed, particularly by many small businesses which are hanging on by their finger tips.
I said earlier in the proceedings on this Bill that a tax should be fair, transparent, clear and accountable. I am sad that we have not achieved any progress towards any of those criteria during the debates on the Bill. Nevertheless, the debate has had its moments.
On Question, Bill passed.
Viscount St. Davids: My Lords, I beg to move that the House do now adjourn during pleasure until 8.45 p.m.
[The Sitting was suspended from 8.25 to 8.45 p.m.]

Police and Magistrates' Courts Bill [H.L.]
House again in Committee on Clause 68.
[Amendment No.171 not moved.]
The Deputy Chairman of Committees (Lord Airedale): In calling Amendment No.172, I must point out that, if it were to be agreed to, I could not call Amendments Nos.173 or 174.
[Amendment No.172 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.173:
Page 35, line 17, leave out ("shall be taken to") and insert ("does not").
The noble and learned Lord said: This amendment is part of the consequence of removing questions about power to indicate the terms of contract. Amendment No.174 is consequential upon it. I beg to move.
Lord McIntosh of Haringey: I am not sure that we had an opportunity to thank the noble and learned Lord the Lord Chancellor for this series of what I feel are quite important concessions. The abdication of the powers which were taken in the Bill for control over the renewal of the contract and re-engagement under a new contract is significant. We are grateful to the Government for taking account of the opinions expressed at Second Redding of the Bill.
The Lord Chancellor: I am grateful to the noble Lord for his remarks. The primary idea was to have power in the Lord Chancellor to prescribe terms of appointment. It was made clear that those would include fixed term appointments. Considering all that was said about the matter, it is important that the idea of fixed term contracts was not put on the face of the Bill. I intended to leave that for consideration if the powers were given. But, in the light of all the circumstances, I concluded that it was an unnecessary irritant in the system. I am grateful for all that was said about it.
As my noble and learned friend the Lord Chief Justice said, perceptions are quite important in this area. I am grateful to the noble Lord for his remarks. Certainly I consider it to be an important result of listening to what was said.
Lord McIntosh of Haringey: I take it that in moving Amendment No.173 the noble and learned Lord also
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speaks to the other amendments in the group which affect the powers of the Lord Chancellor's Department over the contracts not only for chief justices' clerks, or whatever they may finally be called, but also for justices' clerks. It should be put on the record that it is not only an important issue but welcome to those of us who have expressed views on this matter before.
The Lord Chancellor: I confirm that this applies to the head of service (to use a neutral expression) and to the justices' clerks. It applies to all those. It was the Lord Chancellor who would have had the powers and I am persuaded that it is wise not to insist on my having them.
The Lord Chancellor The Lord Chancellor moved Amendment No.174:
Page 35, leave out lines 21 to 24.
The noble and learned Lord said: This amendment has been spoken to. I beg to move.
[Amendments Nos.175 and 176 not moved.]
[Amendment No.177 had been withdrawn from the Marshalled List.]
[Amendment No.178 not moved.]
On Question, Whether Clause 68 shall stand part of the Bill?
Lord Mottistone: I am down to oppose Clause 68, and although the Committee is sparse, I should like to make a few remarks on the matter. Clauses 68,69 and 70 are all clauses which I feel should not be in the Bill. In view of the discussions we have had, however, I shall not prolong the proceedings. Observing what my noble and learned friend has said in the earlier debates, the Justices' Clerks' Society very firmly supported me in opposing the total concept which those three clauses represent. I have to say that I think it would be very much better for the Bill if they were not there, partly on the grounds that they are not necessary but, more especially, because I have great faith in and have seen to operate satisfactorily over more than 14 years the 1979 Act. I said earlier to my noble and learned friend, and I suggest it again now, that in relation to these particular points the 1979 Act provides all that he could ask for quite satisfactorily and there is really no need at all for these clauses.
Lord McIntosh of Haringey: I should like to take advantage of the Question that Clause 68 stand part of the Bill to express my regret that the noble Lord, Lord Peyton, did not move his Amendment No.171. I thought that that amendment was of considerable importance and value.
Lord Peyton of Yeovil: I beg your Lordships' pardon. I was not aware that Amendment No.171 had been called.
Lord Mottistone: That was a long time ago: this is Committee stage and you cannot go back. It is too late.
Lord McIntosh of Haringey: I will just put down a marker, if I may— or perhaps the noble Lord, Lord Peyton, wishes to do so?
Lord Peyton, of Yeovil: I very much regret my omission. It was because of confusion with the numbers that I failed to move the amendment. I fully appreciate its importance and I am grateful to the noble Lord, Lord McIntosh, for jogging my arm on this. I shall certainly want to go back to it on Report.
Lord McIntosh of Haringey: I am most grateful for that. It encourage me to think that we will go back to it on Report. This is the issue of the role of the Lord Chancellor and the Lord Chancellor's Department in the appointment of a chief justices' clerk, or whatever the post might finally be called. Subsection (2) of Section 24D which appears in Clause 68 provides that the magistrates' courts committee has to submit to the Lord Chancellor in accordance with the regulations an application for approval of one or more persons offering themselves for appointment. The Lord Chancellor has to approve one or more of those persons and note that it could be just one of those persons; and that the person appointed is a person so approved. It is all in Clause 68 and so it is entire? y proper for me to refer to it during discussion on the Question that the clause stand part.
This seems to us a gross intrusion of the Lord Chancellor in the appointment of what is after all a head of paid service, and largely an administrative post. I hope that as the noble and learned Lord the Lord Chancellor considers his position and takes part in any further discussion that may take place, following the debate that took place on Amendment No.170, he will also consider that his own rethinking should take into account Amendment No.171 and the other amendments in the same group, even though they were not moved.
It is an important part of our case about magistrates' clerks and heads paid service that there should not be this degree of interference or involvement, to put it in a neutral way, by the Lord Chancellor and his department in the appointment of any of these people. Having put on the record out support for the noble Lord, Lord Peyton, in regard to the amendment which was on the Marshalled List, I hope that we may have confirmation that the noble and learned Lord the Lord Chancellor will be considering these matters as well.
Lord Peyton of Yeovil: I should just like to add a few more words to clarify that point. As the Bill stands at the moment, there is a requirement for an application to go forward to the Lord Chancellor, containing the name or names for approval. The effect of my amendment would be that there would be forwarded to the Lord Chancellor the name of the person whom the magistrates wished to appoint. That appointment would then be subject to the approval of the Lord Chancellor. I am so sorry that my omission at that particular moment has meant that I did not take the opportunity to say how important I thought this aspect was.
The Lord Chancellor: I am happy to have the chance to discuss this matter, because it is of some importance. As I understand my noble friend, he agrees that it is right that the Lord Chancellor should approve the appointment of the head of service. The position — and I think that this is true in relation to all those in the service, but I am always. subject to correction in
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these matters— is that the head of service would be consented to by the Lord Chancellor. The question is: should a shortlist be put for his approval or should there be only the one person?
My intention in the Bill is to allow the magistrates' courts committee to choose whether they want to put up a list, in which case I would indicate in advance, or whether they want to put up the one person, in which case I would have the choice of yes or no to that one person. I think that there are advantages in giving an option to the committee but I am not sure that this particular point is very important: at least, it is not from my point of view. Although I would be pretty well content either way, I thought on the whole that giving the option to the committee gave them greater freedom as regards how they went about their task.
Lord McIntosh of Haringey: The issue is affected by what conclusion we finally come to on the substance of Clause 68. If we finally agree at a later stage in our consideration of this Bill that the head of paid service, to adopt the neutral form of words suggested by the noble and learned Lord— perhaps we should end up with that— should have an administrative role rather than a judicial role and that he should have no part in the relationships between the justices' clerks and lay magistrates, which is what we would hope to be the outcome of any further consideration, then it seems odd that the Lord Chancellor should seek to have any influence whatever over the appointment of a head of paid service.
I should like to put down another marker. We may consider putting down amendments which would remove the Lord Chancellor's role altogether; indeed go further than the amendment put down by the noble Lord, Lord Peyton.
9 p.m.
Lord Mottistone: The theme which the noble Lord, Lord McIntosh, has been promoting does not accord with my understanding of the situation. The concept of having the chief justices' clerk is what is now abhorrent to the Justices' Clerks' Society. The society wholly supports the removal of Clauses 68,69 and 70. Together with the Standing Conference of Clerks to Magistrates' Courts Committees it has undertaken a costing exercise. I know that my noble and learned friend says that the system works well in London, but I am talking about the rest of the country. The cost of the exercise will be very much higher than has been forecast by my noble and learned friend's department; something in the order of £ 6 million rather than £ 3 million. I think that there is more to this than trying to make sure that the individual who occupies the post, if it ever happens, should be concerned with the law, or with administration, but not with both. I cannot agree with that because, as my noble and learned friend has pointed out, in our magistrates' courts committee we have the two together and we will hope to retain it that way.
Lord McIntosh of Haringey: If the noble Lord will permit me, nothing that we have said in discussion of previous amendments would prohibit the Isle of Wight magistrates' courts committee from appointing a

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qualified person— a former justices' clerk— as head of paid service. We are not seeking to prohibit. What we are seeking to do is to remove it as a requirement as it may not be as appropriate in other areas of the country.
Lord Mottistone: Very well. The fact is that in my eyes and those of the Justices' Clerks' Society the better solution to this problem is to remove these clauses altogether.
Clause 68, as amended, agreed to.
Clause 69 [Appointment and removal of justices' clerks]:
The Deputy Chairman of Committees: Before calling Amendment No.179 I have to say that, if it were to be agreed to, I could not call Amendments Nos.180 or 181. I call Amendment No.179.
Lord Peyton of Yeovil Lord Peyton of Yeovil had given notice of his intention to move Amendment No.179:
Page 36, leave out lines 25 to 42 and insert:
("() A person may not be appointed as a justices' clerk unless the magistrates' courts committee has submitted to the Lord Chancellor an application for approval of the person whom the magistrates' courts committee proposes to appoint and the Lord Chancellor has approved the appointment of that person.").
The noble Lord said: I think it unnecessary to repeat myself but what has been said already about Amendment No.171, which is concerned with the appointment of chief justices' clerks, applies equally here, where we are concerned with the appointment of justices' clerks. The amendment is not moved.
[Amendment No.179 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos.180 and 181:
Page 36, line 36, leave out ("shall be taken to") and insert ("does not").
Page 36, leave out lines 39 to 42.
The noble and learned Lord said: I have already spoken to these amendments. I beg to move.
[Amendment No.182 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.183:
Page 37, line 12, leave out ("except in a case falling within subsection (3) above").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No.184:
Page 37, line 27, at end insert:
("(9) The Lord Chancellor shall publish the criteria for approval of any justices' clerk and give reasons to the committee and to the candidate for any refusal to approve.").
The noble Lord said: This is a very simple amendment. It requires that the Lord Chancellor shall publish the criteria for approval of any justices' clerk and give reasons to the committee and to the candidate for any refusal to approve. I beg to move.
The Lord Chancellor: I have already published in answer to consultation the areas in which the criteria fall; the subject matters of the criteria. It is a good deal more difficult to specify actual criteria. One never knows who may come along. It is very difficult to anticipate all the possible doubts that there might be
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about a person. I have no difficulty whatever in giving reasons. I have already said that I would give reasons for refusal in any case where there was refusal.
As the Committee knows, the Secretary of State, and since 1st April 1992 the Lord Chancellor, has had the question of approval of justices' clerks before him. So far as I know — certainly within living memory— there has never been a refusal, which just shows how competent the service is. On the other hand, I think that the justices' clerks have felt that it is quite good to have the approval now of the Lord Chancellor. I would certainly give reasons for refusal but I think it more difficult to publish criteria in advance. I doubt whether they would add anything except some of the circulars of the kind to which my noble friend referred.
I hope my noble friend will accept that I am perfectly content that it should be specified that I would give reasons for any refusal.
Lord McIntosh of Haringey: Before the noble Lord decides what to do about his amendment, at the risk of disloyalty I should say that I find myself in opposition both to the amendment and to the Government's answer. I do not think it is right that the Lord Chancellor should have to publish his criteria for approval of any justices' clerk. My experience of such criteria being published by government departments is not very happy.
Earlier on in the consideration of the Bill we looked at the criteria which were published in Written Answers by Ministers for the people whom it was hoped by the Government would be appointed to police authorities. They were not only most intrusive but extremely misconceived. I suspect that the same might be true of any criteria published. In the wider sense I do not like the amendment because I do not believe that the Lord Chancellor should have any say in the appointment of justices' clerks. It is a very personal relationship between them and the magistrates. I would rather not have a halfway house amendment of this kind; I would rather see the involvement of the Lord Chancellor and his department taken out altogether.
The Lord Chancellor: This arrangement has worked extremely well since 1979 so far as approvals are concerned. I believe that it gives certain support to the justices' clerk in his or her function. I certainly understood that the service as a whole in the alternative framework and all the bodies which are part of that agreement, wanted this.
Lord McIntosh of Haringey: I make it clear that I do not represent the service as a whole, but myself. If on occasion I agree with the Justices' Clerks' Society or the Magistrates' Association, that is my good fortune. But on the whole I am putting the position of myself and my party and not of any outside organisation.
The Lord Chancellor: I entirely understand that. It is just a comfort to me that while I may have the noble Lord, Lord McIntosh, against me on this particular occasion, I have the service's support.
Lord Peyton of Yeovil: In view of the fact that I seem to have detected a notable lack of enthusiasm for

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this amendment on both Front Benches, the best thing I can do is to beg leave to withdraw it and give it a decent burial.
Amendment, by leave, withdrawn.
Clause 69, as amended, agreed to.
Clause 70 [Contracts of service of chief justices' clerks and justices' clerks]:
The Lord Chancellor The Lord Chancellor moved Amendment No.185:
Page 37, line 30, after second ("clerk") insert:
("(a) shall be employed by the magistrates' courts committee, on such terms as they may determine, and (b)")
The noble and learned Lord said: This amendment is consequential on the amendment taking out the powers of the Lord Chancellor in this connection. I do not need to explain that further. Amendment No.186 is to the same effect. I beg to move.
Lord Mottistone: I thank my noble and learned friend very much for this amendment and the others with it.
Lord McIntosh of Haringey: The noble and learned Lord the Lord Chancellor is very modest. I do not believe the occasion should pass without expressing our thanks to him for this very significant and worthwhile change to the Bill. It ensures that the clerks are appointed by the magistrates' courts committee and that the terms are laid down by it rather than determined centrally. I hope that this is another example of the Lord Chancellor's flexibility and consideration in dealing with this part of the Bill.
The Lord Chancellor: I am grateful for what has been said on this matter. I hope it demonstrates that I am anxious to get the Lest possible structure for this service which will last as long at least as the 1949 Act.
The Deputy Chairman of Committees: Amendment No.186 has been spoken to. In calling it I have to point out that if it is agreed to, I cannot call the next three amendments standing in the name of the noble and learned Lord, Lord Ackner.
The Lord Chancellor The Lord Chancellor moved Amendment No.186:
Page 37, line 32, leave out from beginning to ("have") in line 46 and insert:
("(2) Subsection (1) above shall not").
The noble and learned Lord said: Since my noble and learned friend's amendment will be knocked out technically by this amendment, I wish to say a word about his Amendment No.189. So far as I am concerned, I would wish that to be the effect— in other words, nothing can be proposed by contract which conflicts with the provisions of Section 71. I had the impression that that probably was implied because Section 71 is part if the Bill under which this contract will be placed. But if my noble and learned friend feels that that is not necessarily so, an amendment on the lines that he has proposed in Amendment No.189 is perfectly acceptable to me. I would not wish any contract or any relationship of any sort set up under the Bill to conflict with the provisions of Section 71, which I regard as having considerable importance.
Lord Ackner: I am most grateful to my noble and learned friend for his kind concession. We would like the matter spelt out. It is much better to have the provision on the record and that is why we suggested it. I gratefully accept the suggestion that the matter can be incorporated by my noble and learned friend in some way or other.
The Deputy Chairman of Committees: I advise the Committee that I cannot now call Amendments Nos.187,188 and 189.
The Lord Chancellor The Lord Chancellor moved Amendments Nos.190 to 192:
Page 38, line 3, after ("he") insert ("(a)").
Page 38, line 5, leave out from ("area") to end of line 9 and insert ("and
(b) has not entered into a contract of service after the commencement of this section.").
Page 38, line 10, leave out ("subsections (1) to (4) above do") and insert ("by virtue of subsection (2) above, subsection (1) above does").
The noble and learned Lord said: I have already spoken to these amendments and, with the leave of the Committee, I ask that they be approved together. I beg to move.
Clause 70, as amended, agreed to.
9.15 p.m.
Clause 71 [Independence of chief justices' clerk, justices' clerk and staff in relation to legal functions]:
Lord Ackner Lord Ackner moved Amendment No.193:
Page 38, line 15, leave out from ("exercising") to ("or'') in line 16 and insert ("responsibilities conferred by primary or secondary legislation").
The noble and learned Lord said: I have agreed with the noble Lord, Lord Mottistone, that I would move this amendment and speak to the others in the group. The amendments are simple and seek to ensure that the provisions cover all the appropriate responsibilities of justices' clerk since not all the functions are contained in subsection (2): for instance, rules have been made relating to legal aid which would not be covered by the current position. The provisions would also preserve the necessary independence of the justices' clerks at, for example, training exercises or Bench meetings. They also make provision for additional responsibilities which the justices' clerks may from time to time be required to exercise under future legislation. I beg to move.
Lord McIntosh of Haringey: There are two things to be said about this group of amendments. First, I think it necessary to repeat the warnings that were made on Second Reading about the necessity for having Clause 71 at all. If it is necessary to put on the face of statutes statements about the independence of the chief justices' clerk, justices' clerk and staff in relation to legal functions, there must be some reason for it. In other words, there must be some threat to that independence, which had always been taken for' granted without statutory reference. To that extent, there is a substantial argument for removing the clause altogether.

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Secondly, our attitude to these amendments and to some of the other detail of Clause 71 depends on what conclusion is finally reached as a result of the reconsideration which the Lord Chancellor is to give to Clauses 68 and 69. I have to say that, unless there is a substantial change to Clauses 68 and 69, it may well be that on Report we shall want to return to Clause 71 in perhaps a more aggressive manner.
Lord Mottistone: I support a lot of what the noble Lord, Lord McIntosh of Haringey, has just said. It is unfortunate that we have to have this provision. It is interesting that the Justices' Clerks' Society feels that it is necessary. That was the point that the noble Lord made. This whole pattern appears to me to be threatening, involving greater control from the centre, whatever my noble and learned friend may say. We are all trying to ensure that something does not slip through the net which makes it difficult for the clerks to be truly independent in giving their legal advice to the magistrates whom they serve. I think that it is a great pity that we have to have this clause. I know that my noble and learned friend included it in the Bill to reassure people but, in a sense, the fact that he did that makes me think that perhaps he too sees that there is a danger that the Bill may have the reverse effect to what, I am sure, he would like to happen. The whole thing is pretty nasty. Of course I support my noble and learned friend in his amendments but I shall watch carefully what happens as the Bill progresses.
The Lord Chancellor: I am not certain whether that is intended as threatening. It is difficult to win; I am asked to include in the Bill provisions securing judicial independence and when I put them in' it is seen as a threat. There are two points, one of which was adverted to by Ian Fowler in the letter which I read earlier. One must be careful about the way in which these matter interact. In Clause 71 I have tried to define in terms which are consistent with the remit given to the Home Affairs Select Committee and also with that given to the Parliamentary Ombudsman in the Courts and Legal Services Act in relation to the examination of courts. It is right that we have a provision on the lines of Clause 71
As regards this amendment, it is open to question whether there are any responsibilities that are not conferred either expressly or impliedly by primary or secondary legislation. Certainly, issues such as responsibility for accounting for fines and so forth is subject to both primary and secondary legislation. The phrase is much too broad for the effect which my noble and learned friend Lord Ackner and my noble friend Lord Mottistone are seeking.
Obviously, the matter depends to some extent on how one ultimately resolves the problems arising from the amendments to Clause 68. I submit that the phrase
"responsibilities conferred by primary or secondary legislation"
includes more than could reasonably be the subject of exclusion under Clause 71.
Lord Ackner: Before my noble and learned friend sits down, I would like to know to what extent it goes beyond what is reasonable. I understand the allegation, but I would like it particularised if possible.
The Lord Chancellor: I shall give some instances. First, it is arguable that it applies to all the functions of these officers because they are a creation of statute. I believe that all their functions are conferred expressly or impliedly by or under primary or secondary legislation. Therefore, it includes all the functions. I understood that my noble and learned friend would allow direction in relation to issues such as accounting and so forth. That is the difficulty about the boundary that he proposes. I submit that his proposal incorporates the whole of the activities of these officers.
Lord Ackner: Again before my noble and learned friend sits down, will he say whether if mine is too wide his is not too narrow? I gave two examples; the first related to the rules concerning legal aid and the second to training exercises. They are clearly matters which could affect the independence and the way in which the clerk carries out his quasi-judicial activities and therefore they should be covered. If my noble and learned friend believes that they are covered by the provisions as they stand I should be grateful if he would spell out how.
The Lord Chancellor: The functions specified in relation to training exercises are difficult to deal with. The question of what is proper training is ultimately a matter on which the magistrates' courts committee has the statutory responsibility. One of the functions of the officer concerned, whatever he be called— the paid head of service— is, according to the arrangements proposed by the agreement in the service, the organisation of the training. Therefore, I should have thought that directions in relation to training were properly the subject of management instruction.
The functions which are conferred with regard to legal aid are conferred under the legal aid statutes. I believe that those are part of the arrangements under which the clerk to the justices acts under those statutes. A problem there is the extent to which legal aid is a matter of judicial or quasi-judicial function. Some but not all aspects of legal aid functions are of a quasi-judicial character. If the matter requires to be adjusted, I think it right to adjust it by dealing expressly with those matters.
There is a problem with regard to legal aid which has considerable ramifications. The noble Viscount, Lord Tenby, referred earlier to the question of circulars. It is not necessary to go into the detail of that but I set up a working party, including justices' clerks, to consider how those matters are put in practice. We were trying to arrange a situation in which the accounts of the Legal Aid Fund would be approved by the National Audit Office. My problem is that, unless I can make an arrangement under which the Comptroller and Auditor General is prepared to approve the accounts, I must make different arrangements for granting legal aid from

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those which exist at present. Therefore, that is a difficult area. If it is right that legal aid should be dealt with, I should prefer to do that expressly.
Lord McIntosh of Haringey: I shall not stray into the area of legal aid. I wish to make two comments about the previous remarks of the noble and learned Lord the Lord Chancellor. As regards the necessity for the clause, the whole clause is peculiarly and almost, it seems, deliberately opaque as it is drafted. It states that all the functions referred to in subsection (1) of the new Section 30A of the 1979 Act,
"are functions conferred by rules made in accordance with section 144 of the Magistrates' Courts Act 1980 by virtue of section 28(1) … of this Act".
That means that it is a moving target and the rules can be changed. It may seem all very well to provide independence at those three different levels from employers for the start of the magistrates' courts committees and the justices' clerks but, if that independence is restricted to functions which are referred to in rules which may be changed and which are not in primary legislation, that is not very good protection.
My second comment about the clause and the amendment is that the way in which the clause is drafted confirms the worst of our fears about Clauses 68 and 69. It refers to giving advice to justices of the peace in an individual case. It includes the possibility of a chief justices' clerk giving advice to justices of the peace in relation to an individual case because it then excludes such advice from the direction of the magistrates' courts committee or any other person.
It is the possibility of the chief justices' clerk, with his special links with the Lord Chancellor and his department, having any say in advice to magistrates in an individual case chat is our fundamental objection to that part of the Bill. The fact that that is contained in Clause 71 confirms our worst fears about it.
Finally, in the noble and learned Lord's first intervention on this group of amendments, he said that he had been asked to include provisions for independence. He was not asked to do that. What he was asked to do was to make sure that there are no threats to independence anywhere in the Bill, either in the Bill as drafted or in further amendments. What we are looking for is not general statements of independence but no provision which would be a threat to that independence. That is much more important than a general statement of independence as provided in Clause 71.
9.30 p.m.
Lord Ackner: First, I wish to answer the cri de coeur of my noble and learned friend that he cannot win. The answer to that is that he cannot win if he starts by putting in a clause which is generally considered— certainly by the noble and learned Lord the Lord Chief Justice— to be a threat to independence. I refer to Clauses 68 and 69. What he has done is to threaten independence with those clauses and then he has sought to produce a magic wand in Clause 71 and say that the threat has disappeared. On the basis that the magic wand must be there, we want to make sure that it is an effective magic wand.
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My noble and learned friend says that he thinks that the training exercises are a management activity. I would have thought that it is just the situation where the young, innocent lay justice can be persuaded not to grant adjournments because that adds to expense; not to exercise his discretion by proceeding to trial rather than seeking by a plea bargain or by a discount to get pleas of guilty; not to grant legal aid without careful inquiries, and so on and so forth. What my noble and learned friend overlooks is the threat to the exercise by the justices of their discretionary powers. This is where the training exercise can be so relevant. One knows whether one is training a human being or an animal. One hopes that they will operate according to the way in which one has brought them up. It is the way in which the justices' chief clerk, as I propose to call him for the moment, trains his magistrates, having received instructions from on high that this is following the best managerial skills — which is apparently the leitmotif now of how justice should be administered.
I shall, of course, bear in mind my noble and learned friend's observations. This is not the time to divide the Committee. I shall certainly return to the matter because it is of vital importance to define the limit of the protection which is provided. This is a good indication that Clause 68 must be effectively dealt with if this is the limit of the protection against that clause 'which my noble and learned friend is prepared to grant. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.194 and 195 not moved.]
The Deputy Chairman of Committees (Lord Airedale): In calling Amendment No.196, 1 must point out that if it were agreed to I could not call either of the next two amendments. I now call Amendment No.196.
[Amendment No.196 not moved.]
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No.197:
Page 38, line 26, leave out from ("chief') to end of line 27 and insert ("executive (unless acting as a justices' clerk)").
The noble and learned Lord said: This amendment must await the outcome of Clause 68. Therefore I shall not move the amendment.
[Amendment No.197 not moved.]
[Amendment No.198 not moved.]
Clause 71 agreed to.
Clause 72 agreed to.
Clause 73 [Organisation of justices' clerks in inner London area]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos.199 to 201:
Page 39, line 12, leave out from ("shall") to ("be") in line 14. Page 39, line 15, leave out ("that") and insert ("the 1979"). Page 39, leave out lines 24 to 36 and insert:
("() Any person to whom subsection (2) or (3) above applies shall hold and vacate office in accordance with the terms of his appointment or, if he has entered into a contract of service (whether before or after the commencement of subsection (1) above), in accordance with the terms of his contract of service.").
The noble and learned Lord said: I beg to move Amendments Nos.199 to 201 en bloc. I have already spoken to the amendments with Amendment No.185.
Clause 73, as amended, agreed to.
Clause 74 agreed to.
Clause 75 [Administrative and financial arrangements for magistrates' courts]:
[Amendment No.201A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No.202:
Page 42, line 27, leave out ("district") and insert ("county").
The noble and learned Lord said: I have already spoken to the amendment. It corrects an error in the description of "unitary authority". I beg to move.
Clause 75, as amended, agreed to.
Clauses 76 and 77 agreed to.
Clause 78 [Inspectors of the magistrates' courts service]:
Lord Mottistone Lord Mottistone moved Amendment No.203:
Page 44, line 9, at end insert:
("() The members of the Inspectorate referred to in subsection (1) above shall include one third serving or recently retired magistrates on the supplementary list, one third serving or recently retired justices' clerks and one third persons selected by the Lord Chancellor.").
The noble Lord said: We now move on to the inspectorate, which I have welcomed. My first reaction to the Le Vay Report was that it would not have been necessary had there been an inspectorate. I wrote to the then Home Secretary and suggested that this was the best solution that should come out of it. To my mind this is the only clause in the whole Bill which is worth having.
The way in which the inspectorate is created is very important. Many Members of the Committee have not had experience of being inspected. The last eminent naval officer to inspect me some 30 years ago when I commanded a ship was the noble and gallant Lord, Lord Hill-Norton. The important point about the noble and gallant Lord and his team who conducted the inspection was that they had all done what we had done at some stage in their naval careers and they all knew what we were trying to achieve and what we ought to be trying to achieve. They were all in a position to criticise us if we did not achieve it properly. I have to say in passing — although the noble and gallant Lord, Lord Hill-Norton, is not with us this evening and I would not expect him to be present at this time of night on such a Bill— that the inspection was conducted with great skill and we learnt a great deal from it. However, it would not have been successful if it had been conducted by a crowd of management consultants and perhaps an official or two from the government department who had never done the job.
I am not prepared to go to the stake on the numbers I have suggested since in that sense the amendment is a probing amendment. However, I believe that it is very important that more than half of the members of the inspectorate which my noble and learned friend sets up should have experience of the running of magistrates' courts, whether that be as clerks or as magistrates. To have a whole lot of experts from other fields is not the answer. It is very important to get the matter right now.
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I think that I understand why my noble and learned friend has picked up the baton and set up his inspectorate before the Bill authorised him to do so. I do not argue that he had every right to do so.
It is a pity that we could not have discussed the matter with him before he did so. The inspectorate consists of many people who I believe are totally unsuitable. If my noble and learned friend has hired those people, it is difficult to get rid of them simply because he agrees with me, as I hope that he does. However, I must impress upon my noble and learned friend that there are few people who have had experience of what I call first class inspection. The system has been established over many centuries in order to make sure that operational people such as magistrates and their clerks are properly inspected by people who have had such operational experience. I hope that my noble and learned friend will be able to give me some encouraging remarks on the amendment. It is a probing amendment.
I have learned one thing about magistrates which makes them different from many others in public appointments. They have much experience. Some of my magistrates who are still quite young have more experience than Members of another place. They have more experience than most councillors in local government. They know what they are at. The same factor applies to their clerks. The organisation needs to have an inspectorate which it respects. If my noble and learned friend has an inspectorate which the magistrates and their clerks respect, many of the worries which may have led my noble and learned friend to produce his parts of the Bill will fall away. I have sought to say that at different times as we have progressed. A good inspectorate involving people who understand the job at once earns the respect of the people which it is inspecting. Such an inspectorate would overcome the problems that we have been considering over the past few days. I beg to move.
Earl Russell: I listened with great interest to the noble Lord. I agree with what he said, especially about his experience of when he was inspected. It was important that the inspectors were people of whom he could say,"They have done what we are doing". Without such experience, one simply cannot judge performance.
I speak as a representative of the profession which was selected as a guinea pig for the first subjection to this bureaucratic culture that we now discuss. From experience, some of it bitter, I can confirm that the noble Lord is absolutely right. Inspection must be done by people who understand what is being inspected. Otherwise the inspectors will require people to do what they themselves could not possibly have done, or require those people to do tasks which would harm the performance of their job. That is what the noble Lord fears. He is right to fear it.
The Lord Chancellor: I am grateful for the welcome that my noble friend Lord Mottistone gives to the idea of the inspectorate, which he originally proposed. The essential character of the inspectorate is that its report will be published. I regard it as important that the inspectorate should be independent of the service that it

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inspects. Therefore, to have an inspectorate which is too dependent on the service that is being inspected would damage the credibility of the inspectorate for the public to whom, through Parliament and myself, the inspectorate will report.
The intention which I made clear from the early days was that recruitment to the inspectorate should be by open competition and successful candidates should be appointed on their merits as people able to provide a high standard. It happens that in the inspectorate we have a senior inspector who was a deputy clerk and a magistrate who was formerly a member of Her Majesty's courts' committee and two former magistrates. So in the inspectorate there is a group of people who have been in the service, but there are also people who have not.
One of the systems which I believe the chief inspector will seek to use is to show the draft report on any committee to that committee before finalising it so that a full account of the inspectors' view of the committee and its work will be available to the committee for comment before the report is finalised. I think that may be a feature of the kind of inspection to which my noble friend referred which may not at that time have in any way been in use. I believe that that is a useful method of ensuring that the experience of the service and the way in which it views matter are properly considered.
I intend, in accordance with a suggestion from the chief inspector, that inspection teams should be supplemented by serving members of the service on short-term secondment. In other words, the inspectors will use people from the service to help them to make the inspections. In that way, the members of the service who wish to do that will have the advantage of seeing how other parts of the service operate. Some invitations have gone out and I believe that they have been fairly enthusiastically received.
I feel that it is right that the inspectorate should include people who have a knowledge and experience of the service, but it is also right that there should be a considerable element of people independent of the service. I believe that we have the balance about right.1 certainly hope that the 'inspectorate will demonstrate its calibre by its work.
9.45 p.m.
Lord Harris of Greenwich: I wonder whether the noble and learned Lord could help us a little more. How many inspectors are there? How many of them have the background asked for in the amendment? The noble and learned Lord was helpful in saying that, as I understand it, two are former magistrates and there is one magistrate in addition. There is a senior inspector who is a former justices' clerk. However, that does not give us much indication as to the size of the inspectorate.
I have no objection in principle to having people from outside the service as members of the inspectorate. However, there have to be enough people with practical experience in order to achieve credibility. Until recently, all members of Her Majesty's inspectorate of constabulary were former chief officers of police or the equivalent. In the case of the probation inspectorate, the
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present chief inspector of probation is a former chief officer in inner London. That obviously gives credibility to the inspectorate. In the case of the prisons, of course, the chief inspector is a former judge and I believe I am right in saying that all the members of his team are members of the prison service who are there on a short-term basis. I understand from what the noble and learned Lord said that a number of people who are justices' clerks are working on short-term engagements with the inspectorate. That is a sensible idea.
However, perhaps I may press the Minister further on two matters. First, will there be an annual report by the chief inspector? I assume that there will be. I cannot see any reference to it in the clause, but almost certainly at this time of night I am missing an obvious reference to that appointment.
Secondly, as he may be aware, in the case of the police inspectorate a copy of the report of Her Majesty's Inspectorate is available in the Printed Paper Office or the Library. Will any reports made on various magistrates' courts committees be made publicly available in the same way? Perhaps the noble and learned Lord can help us on the various matters that I have raised.
The Lord Chancellor: The team of inspectors is 17 in all: one chief inspector, four senior inspectors and 12 ordinary inspectors. Two of the ordinary inspectors are magistrates. Amongst the four senior inspectors, one is a former deputy clerk to magistrates and another is a magistrate. Two of those have had experience of the service. I believe that the chief inspector came with experience of inspection in the social security field. I will ascertain the exact history of the chief inspector. I have trusted to my memory. I am informed that he came from the field of further education. What better than an education inspector? The noble Earl, Lord Russell, must be happy with that.
The intention is that all reports of the chief inspector will be published. The chief inspector will wish to make sure that all that the inspection team does is made public so that your Lordships and all those who are interested will have a chance to see what it has done. As a preliminary to that I regard it as important that those who are inspected should have a chance to see what is being said about them before the report is finalised; otherwise, published reports may not be a good way forward.
I hope that what I have said is reassuring. I know that the police inspectorate was at one time composed entirely of chief officers and that that induced in the public mind some doubt about the independence of that body. I have been prepared to take as many people from the service as may have applied, within reason. We have secured the services of those people by open competition.
Lord Harris of Greenwich: Perhaps I may ask the noble and learned Lord whether there is to be an annual report by the chief inspector published in the same way as the report of Her Majesty's Chief Inspector of Constabulary.
The Lord Chancellor: Every report will be published. She will also publish an annual report. The first report is well on the way to preparation.
In view of the fact that comment was made on this matter earlier, I should say that the ordinary responsibilities that I have enable me to appoint inspectorates without parliamentary authority. If they are to have statutory powers the authority of Parliament is required. Having regard to the welcome that was expressed to the idea, I thought it right to put that in place as soon as possible so that I might have the benefit of inspections in taking forward the other matters about which we spoke earlier tonight.
Lord Monkswell: I am sure that all sides of the Committee recognise the importance of the new inspection regime. However, I believe that the Committee will also recognise the importance of the contributions by the noble Lord, Lord Mottistone, and the noble Earl, Lord Russell, both of which have stressed the importance of inspection as peer group review, if I may so describe it. Effectively, the people doing the inspection should be of the same profession and have experience of the organisation that is being inspected.
With regard to magistrates' courts, there are three separate professional aspects. One is the lay magistracy. One is the justices' clerks. The third could be described as the administration of the system. From the information that the noble and learned Lord the Lord Chancellor has already provided, we can see that the inspectorate includes expertise in those three areas. The question that I have for the noble and learned Lord is: will there be a range of different types of inspection of local magistrates' courts areas? There may, for example, be a need to look at the administrative arrangements within a magistrates' courts committee area; there may be a need for an expert in managerial efficiency; there may be a need to look at the arrangements in respect of justices' clerks, in which case an expert and a peer of the justices' clerks would be expected to be involved; and so on, to the magistrates themselves. The question is: does the noble and learned Lord the Lord Chancellor envisage a system of different types of inspection; or does he envisage a complete inspection which would involve at least three members of the inspectorate with those different areas of professional expertise doing the inspections in the round, as it were?
The Lord Chancellor: I think it would be right to leave to the discretion of the chief inspector precisely how the inspection is arranged. I have no doubt that it will be necessary to examine all aspects of the organisation of magistrates' courts as part of the inspection. The remit is given in the clause. I envisage that will be done in a number of different ways according to how the particular inspection is organised. It is possible to look at particular aspects of a particular magistrates' courts committee area; and if, for example, that were done across the country, that would be a possible subject for inspection. I think it more likely that inspectors will wish to carry out a thorough inspection of the whole organisation and administration in a
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particular MCC area and report upon it. They have already done some experiments in trying out their methodology. I have no doubt that will be developed. If the noble Lord has any ideas about precisely how it should be done, I am sure that the chief inspector will be glad to take those into account. I envisage that precisely how it will be done may vary with experience.
To meet the noble Lord's first point, as I said, secondment of people from the service can be used to provide expertise in particular parts of the organisation that is subject to inspection.
Lord Mottistone: I thank my noble and learned friend for his answers. I am not entirely happy about the choice of the chief inspector. No doubt this chief inspector will prove herself satisfactorily. But I am afraid that somebody who is used to inspecting schools is not really what we want for inspecting experienced magistrates. She has a little battle to do. But she has been hired, and that is that.
I must emphasise that it is extremely important that the inspectorate acquires very quickly the respect of the magistrates and their clerks. He must also have the respect of their staff; but I speak particularly of the magistrates and their clerks. If my noble and learned friend detects that is not happening at a reasonable pace, for whatever reason, I hope that he will have enough knowledge and also, within the whole structure, the authority if need be to sack people or promote them in order to get the right balance.
An inspectorate is a dangerous thing if it is not respected by people of great experience, particularly when it is newly given to them. This is the most important part of the Bill. I shall not press the matter any further. The sense of what I am trying to convey has probably filtered through. At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No.204:
Page 44, line 10, leave out ("The Lord Chancellor") and insert ("Her Majesty the Queen").
The noble and learned Lord said: My noble and learned friend the Lord Chancellor very wisely observed in regard to the previous amendment that the inspectors should be independent of the service which they inspect. I submit that by the same token the inspectors should be independent of the Executive. Accordingly, they should not be employed by the Lord Chancellor's Department. In the same way as the chief inspector of prisons is Her Majesty's Chief Inspector, so should at least the chief inspector of magistrates' courts, whose task is an immensely important one, be quite independent and be seen to be independent of the Lord Chancellor's Department.
That line management structure, which is obviously designed to reduce the autonomy of the justices' clerk up to the justices' chief clerk and upwards and onwards, gives the indication that the command structure emanating down from Whitehall (or the House of Lords, where the Lord Chancellor's Department is to be found) is far too much in control of what is meant to be an

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independent judiciary. This amendment would remove some element of that rather unsatisfactory situation. Accordingly, I beg to move.
10 p.m.
Lord Renton: My point may sound a rather technical one. As I understand it, the other inspectors of constabulary— Her Majesty's Inspectors, as the noble and learned Lord pointed out— in fact are appointed by the Ministers concerned. So far as I remember they are not specifically mentioned as having been appointed by Her Majesty.
In this case, if Her Majesty the Queen were to be made responsible by Parliament for appointing one of the persons to be Her Majesty's Chief Inspector of the Magistrates' Courts Service, it would be on the advice of the Lord Chancellor. It seems to me that the net result would not be very different whether or not the amendment were accepted.
Lord Ackner: Perhaps I may reply very briefly to the noble Lord. No doubt the noble Lord is right— the noble Lord is always right. I should have thought that technically there is a difference because the particular person would not be in the employment of the Lord Chancellor's Department. That is the problem which is raised by the present situation. As I understand it, it is a section of the Lord Chancellor's Department that is involved, and that is what I seek to avoid.
The Lord Chancellor: So far as I am concerned it is a matter of considering what is best for the service. The situation is that the management of the magistrates' courts service stops at the magistrates' courts committee. The idea that there is line management from the magistrates' courts committee to the Lord Chancellor is absolutely incorrect. That was the kind of proposal that Le Vay had, and I and the Government as a whole rejected that. The responsibility for the management of the magistrates' courts service in their area stops with the magistrates' courts committee, not with the Lord Chancellor.
It is therefore a locally managed service, and I have responsibility to Parliament only in so far as there is ministerial responsibility for the policy which governs the law and the statutory framework under which the magistrates' courts service works and in the provision of the necessary tax payers' resources. This is quite different, for example, from the prison service because the prison service is the direct responsibility of the Home Secretary and he has the ultimate responsibility for management. It is true that now it is an agency, but the agency is answerable to him and he has responsibility for its management. I have, and will have, no responsibility whatever for the management of the magistrates' courts service in any area of the country.
In that situation I believe that the ordinary way of dealing with these matters is that the Minister accountable to Parliament, who does not have responsibility for management, appoints the chief inspector. The probation service is perhaps the most notable example. The other point is of course that in fact the Lord Chancellor appoints the magistrates themselves on behalf of Her Majesty. So I think it would be
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appropriate that the chief inspector of the magistrates' courts service, which is a service to support these magistrates, should also be appointed by the Lord Chancellor.
Something may depend upon the total arrangements made under the Bill, but this is the basis on which the present proposals have been put forward. As I say, I think the appointment of probation inspectors is an example of the relationship between the two. I entirely accept that the magistrates' courts and the magistrates themselves are extremely important: there is no question about that. The appointment of the chief inspector is made by me, and she has direct responsibility and direct access to me. I have undertaken, as I said, that all her reports will be completely public so there can be no question, in my view, of her independence, together with that of the rest of the team, from the remainder of the Lord Chancellor's Department.
Lord Ackner: I am grateful to my noble and learned friend for that helpful explanation. In view of the technicalities which the noble Lord, Lord Renton, has so helpfully drawn to my attention, I should like to take time to consider both speeches, or interventions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 78 agreed to.
Clause 79 [Powers of inspectors]:
Lord Mottistone Lord Mottistone moved Amendment No.205:
Page 44, line 40, at end insert:
("(c) to attend any meeting of the magistrates' courts committee unless invited by the chairman, or
(d) to comment on or seek to influence the exercise of a judicial function").
The noble Lord said: The portion of Clause 79 we are referring to is a little part of the clause which says what the inspectors cannot do. I, and indeed the noble and learned Lord, Lord Ackner, have had advice from the Magistrates' Association and also from the Justices' Clerks' Society on these two points. You will see that our two amendments are almost, but not quite, identical. The difference is that I do not think it is at all unsuitable for the inspectors to attend a meeting of the magistrates' courts committee, provided that they are invited by the chairman.
I have happy experiences of one of the members of my noble and learned friend's staff who asks whether he can attend meetings of the advisory committee. I am happy to invite him so to do. He has been helpful in comments that he has had to make and he has also seen us interviewing people who want to be magistrates. I am entirely happy with that arrangement. It would be very stupid of magistrates' courts committees if they were not to invite members of the inspectorate to attend their meetings, if that was convenient for them both. On the other hand, paragraph (d), which is to be found in both amendments, is part of a continuing argument that we have sought to press in many of these amendments in order to make sure that the judicial function is not in any way influenced by this outside body.

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I suggest to the Committee, and indeed to my noble and learned friend, that there might be some use in my amendment being accepted just to strengthen this part of Clause 79. I beg to move.
Lord Ackner: I accept the noble Lord's advice with regard to the addition of a proviso "unless invited by the chairman". He is immensely experienced and I would not hesitate to follow his advice. I suspect that I might even, however, persuade him to follow my amendment by adding after the word "function" the word "discretion" because I think that one should take no risks in the draftsmanship to ensure the widest possible restriction on the inspector to comment on or seek to influence the exercise of the judicial function or discretion. The two may not necessarily be the same and it is in my view the judicial discretion which particularly needs safeguarding. I expect that by a little mediation we shall come quickly to the same view.
Lord Harris of Greenwich: Without going over old conflicts on the Bill I am sure that the noble and learned Lord will accept, albeit with a degree of reluctance, that there has been expressed during the passage of the Bill a deep scepticism at best— suspicion at worst— about the intention of Ministers because the Bill transfers huge new powers to Ministers and their representatives.
So far as concerns this modest amendment— the noble and learned Lord, Lord Ackner, has an alternative form of words — I think that an amendment of this kind is highly desirable. I do not suggest that inspectors would try to gate-crash the meeting of a magistrates' court committee if not invited by the chairman. It is hard to believe that that situation would arise; but I think it is helpful to have it stated on the face of the Bill so that there is no conceivable misunderstanding.
There have in the past been disputes as to whether inspectors of constabulary can attend some meetings of police authorities. The issue has been raised in the past and it is probably sensible to have the matter clarified. However, the second part is even more important. I think it is highly desirable that one of the amendments — on balance I think probably the formulation of the noble and learned Lord, Lord Ackner— should be put on the face of the Bill to avoid any conceivable misunderstanding about what the role of the inspectors is to be. That would put some minds at rest, which is highly desirable in the light of the debates which have taken place today.
10.15 p.m.
The Lord Chancellor: The purpose and duty of the magistrates' courts service inspectorate is to inspect and report to the Lord Chancellor on the organisation and administration of magistrates' courts for each magistra-tes' courts committee area and to discharge such other functions in connection with the organisation and administration of magistrates' courts as the Lord Chancellor may from time to time direct.
The whole purpose of the inspectorate is the organisation and administration of magistrates' courts. The difficulty about part of this amendment is that if I put in something about judicial discretion, it is said that
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I fear that, without it, the inspectorate will be interfering in judicial discretion and function. One must not forget that the whole purpose of this service is to provide a judicial function. The magistrates' courts as a whole have no other function but to provide a judicial function to the community which they serve. Everything which the organisation and administration do and all the people employed in the magistrates' courts service (about 10,000 of them) throughout the country are trying to support the judicial function. I have no doubt myself that the better the support the better is the discharge of the judicial function. Therefore, if the organisation is improved so will be the discharge of the function for which the organisation exists.
It is an extraordinary idea to set up an inspectorate for an organisation whose only function is a judicial one and to think that the activities of the inspectorate will not help to improve that function. I entirely understand, (it is well understood also by the chief inspector) that there is no question of the inspectorate commenting on particular decisions or exercises of discretion.
There are boundaries in this connection which I wish to mention. For example, one of the matters which was drawn to my attention by The Law Society when I took over responsibility for the magistrates' courts service in the ministerial sense to which I have already referred, is that it hoped that the transfer would have an effect on the wastefulness which it experienced in connection with the administration of magistrates' courts. For example, some courts— I believe that there are very few now— occasionally called everyone to attend at 10 o'clock in the morning with the result that people who were not needed until the afternoon had an unnecessarily long wait.
I suppose the time at which particular cases are to be called is a judicial function and certainly I regard priorities as between cases to be an important function of a judge to determine, if there is a dispute. But is it a judicial function to have all the cases for the day called at 10 o'clock in the morning, or is it something to which the inspectorate should not draw attention and mention as being wasteful for the public who are required to attend?
The matter is difficult. In my view— and I am sure that I speak for the chief inspector in this matter— there is no question whatever of the chief inspector or any inspector wishing to comment on decisions in particular cases. That is the way in which the remit of the Home Affairs Select Committee is defined. While I entirely endorse the principle that the inspectorate will have no power whatever to interfere with or comment on a judicial decision or the exercise of a judicial discretion understood in the way to which I have just referred as a decision in a particular case, the way in which the service is organised is intended to support the judicial function and to make the exercise of that function better than it would be if it were badly organised. Everyone also knows that, on the whole, the better it is organised the more speedy justice is likely to be, and justice delayed is justice denied. The organisation and the way in which matters are arranged have an important part to play in that aspect of the justice function.

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As far as going to meetings is concerned, my impression is that it would be best to leave this matter as it is. My noble friend has referred to some officials from the Lord Chancellor's Department who assist me in connection with the appointment of magistrates, a function which I have held for much longer than those that are the subject of the present Bill. As I said earlier, those functions are in many ways more comfortable to hold than the ones that I have inherited since 1st April 1992. In that connection, there is no power to go to a meeting or anything of that sort. The whole business is very much a matter of kind help being offered to me by the Lords Lieutenant and the advisory committees. They regard it as useful for one of my senior officials to go with them. Occasionally, they invite me. I do not think that they regard that as too much of an imposition. When I go, I receive a warm welcome and it is always interesting to see how they perform.
I should have thought that this was something that could safely be left to the good sense of those involved. I would expect the ordinary arrangements to be that, if the chief inspector or one of the inspectors wanted to attend, they would communicate with the chairman and I would not expect them to encounter any problem. They would want to go at a convenient time. I think that it is safe to leave that aspect as it is. If your Lordships are keen to set such provisions absolutely, no doubt something along the lines of the first paragraph of the amendment would be acceptable.
However, strongly express the preference for leaving this matter alone— for leaving it to the good manners of both sides to make the necessary arrangements. I am confident that it will be so. After all, the magistrates are appointed by the Lord Chancellor and the chief inspector is appointed by the Lord Chancellor. One would hope that people with such a distinguished lineage would be able to arrange whether they could meet.
Lord Ackner: My noble and learned friend is absolutely right. The whole point and purpose of the existence of the justices is to act as lay judges and to exercise the judicial function. That is essentially the sole purpose of the professional judges. No one suggests that the court administrators can tell the professional judges how to do their job and no one doubts that the efficiency of the court administrators in doing their job will support and make more efficient the judicial function. Proper lists will obviously improve the quality of the expeditious handling of cases. Proper courts with central heating that does not operate at minus 10 degrees or al.90 degrees would again assist the effective operation of the judges— and so on and so forth.
The big point here is that the court administrators know the boundaries because, if they overstep them, the judges— I am sure with great courtesy— will tell them to resume the place where they should be. The same does not apply to lay magistrates. They need protection from administrators in regard to overstepping the mark and telling them how to exercise their judicial functions and, in particular, their judicial discretion.
In view of the fact that there is no doubt about the limitations of the inspectors' functions— not the doubts
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that were the subject matter of lengthy discussions with regard to the chief justices' clerk— I cannot see why the Lord Chancellor should object to the second paragraph of Amendment No.205 moved by the noble Lord, Lord Mottistone. It states the obvious. It states it in a Bill where the protection of judicial independence has been admitted by the Lord Chancellor by his bringing into force Clause 71. This is the product of his activities. In my respectful submission, he really cannot complain if one says,"You concede that that protection on the face of the Bill is proper— that is why you included it— so that protection should be extensive and adequate and should satisfy everyone else". Those are my submissions. Although I shall not move my amendment at this stage in the evening, I shall certainly return to the matter on Report, because it is fundamental.
Lord Mottistone: I thank my noble and learned friend for his remarks and I recognise the importance of what was said by the noble and learned Lord, Lord Ackner. I shall certainly consider whether to come back at the next stage on either or both parts of my amendment. In the meantime, I beg leave is withdraw Amendment No.205.
Amendment, by leave, withdrawn.
[Amendment No.206 not moved.]
Clause 79 agreed to.
Clause 80 [Default powers]:
Lord Mottistone Lord Mottistone moved Amendment No.207:
Page 45, line 15, at end insert:
("() The Lord Chancellor shall not make an order under subsection (2) below unless he has first issued a written warning to the committee, particularising the alleged failures, provided that he may make such an order without such prior warning if he certifies that the matter is urgent and that such a warning would be impracticable, and, in any event, the Lord Chancellor shall not make an order under subsection (2) below unless first recommended in writing to do so by Her Majesty's Chief Inspector of the Magistrates' Courts Service.").
The noble Lord said: Clause 80 gives my noble and learned friend the Lord Chancellor unfettered powers to remove and replace a chairman or members of a magistrates' courts committee. There is nothing within the clause to make it a duty for the Lord Chancellor to consult or to issue a warning, nor is there a right of appeal. My amendment provides an elementary safeguard both by a written warning and by the report of an inspector, which would be known to the committee.
It is strange that such provision was not made in the original drafting of the Bill, because it seems only reasonable that under the circumstances of adverse performance the chairman and members of the committee concerned should receive some kind of warning about what to expect. I beg to move.
Earl Russell: Members of the Committee may know that I have been receiving double takes throughout our proceedings on the Bill. The noble and learned Lord may remember debates on a considerable number of clauses dealing with the hypothesis of financial mismanagement in an individual university. In fact, he may remember them better than I because they have given rise to many of our academic freedom debates in which he has taken part, and very helpfully on many occasions.

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We have here exactly the same administrative thinking. We have provision for a gross default, provision for intervention and the same risk of intervention in the affairs of an individual committee as there was of intervention in the affairs of an individual university. Academic freedom is important and so is judicial freedom. Indeed, if my colleagues will forgive me for saying so, it might perhaps be regarded as more important.
In the case of universities the Government had the limited excuse that there had been a single case of financial mismanagement. I know of no such case in this respect. If there is one perhaps the noble and learned Lord will enlighten me. In its absence, I am more and more convinced that the Government have a single policy for the whole of the public services regardless of what type of service they are handling. It is a little like housing the camels, the giraffes and the polar bears in the same house in the zoo— it does not seem particularly relevant to the circumstances. If the noble and learned Lord cannot tell me of any individual case of gross mismanagement by a committee, does not that look like that Whitehall carefulness which is not merely belt and braces but, if I may so put it, pads, box and helmet?
With all due respect to some very high quality speakers, Curtley Ambrose is not opening the bowling for the magistrates. Is this provision really necessary?
10.30 p.m.
Lord Renton: I can understand the attraction of the first part of the amendment moved by my noble friend Lord Mottistone, although I doubt whether it is necessary.
The second part of the amendment, which refers to the Lord Chancellor not making an order unless first recommended by Her Majesty's Chief Inspector of the Magistrates' Courts Service, would be inappropriate. I say that because it is perfectly clear from Clause 78 that the inspectors of the magistrates' courts service are to be concerned only with organisation and administration. But Clause 80 provides that the Lord Chancellor may make an order:
"if he is of the opinion that, without reasonable excuse, a magistrates' courts committee … are failing properly to discharge any duty imposed on them by or under any enactment".
That could refer to the discharge of judicial duties; in other words, something beyond administration and organisation. Therefore, it would not be proper to make it a condition that Her Majesty's Chief Inspector should first make a recommendation.
The Lord Chancellor: I was wondering which were the giraffes and which were polar bears in the noble Earl's illustration. So far, I have not been able to answer that question to myself.
The matter at issue is the administration of a magistrates' court committee; that is, administration of the justice system. It is a question of whether it is failing properly to support the justice system and the justices in its area. There are various ways in which that could happen. That was hinted at in an amendment tabled, but not moved, by the noble Lord, Lord McIntosh of Haringey, in relation to maintenance of a court-house. If
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the noble Lord has looked round court-houses, he may see occasionally court-houses which could be the subject of some improvement.
I do not believe that it is at all likely that those default powers will ever be necessary, and I hope and pray that certainly so long as I am Lord Chancellor, it will not be necessary to use them. On the other hand, one must remember that if the final responsibility in this matter is given to a magistrates' court committee, the administration of justice at that level is of vital importance. If it fails, something must be done about that. The system is not complete unless provision is made to remedy that situation. The proposed amendments all recognise that in some shape or form.
I have indicated already in the paper published following the consultation that such power would be exercised only as a very last resort. I hope that it would be possible to achieve the result without reaching this situation.
When one looks at my noble friend's amendment, one sees that he provides a procedure and then provides a possible exception to it. I believe that it is highly unlikely that the exception would ever be appropriate. One should know some time in advance if such a committee is failing. It is unlikely to be a sudden failure. It is not necessary in those circumstances to specify precisely what should be done. Any Lord Chancellor would be extremely reluctant to do anything along those lines. So far as I am concerned it can be left like that.
This matter is tackled in different ways in different amendments. I mink that Amendment No.208 was spoken to very generally with the earlier amendments but it may be raised again. It is another way of looking at the same matter although by a particular route. But I would hope, as I said, that this particular procedure would not be used except in the most exceptional circumstances and I would expect it to be preceded by a great number of warnings and attempts to repair matters by discussion with the committee and so on. I believe a written warning is a procedure that would be used late in the day.
I hope that my noble friend may feel it is not necessary to prescribe a detailed system with exceptions and so on, as he has done. I have no doubt at all that no action would be taken without a report from the chief inspector. I think it is not wise to require a recommendation from the chief inspector. I think the chief inspector's job would be to set out the facts of what was happening and it would be for the Lord Chancellor to conclude in the light of those facts whether or not there was a failure. I think the ultimate responsibility for that should rest with the Lord Chancellor, who is responsible to Parliament, rather than the chief inspector. Further, if this kind of decision ever came to be made, it would certainly be subject to judicial review and for my part I would think it right that that should be directed to the Lord Chancellor rather than to the chief inspector. As I have said, this matter has been fairly fully dealt with in one of the papers following consultation and I hope that, in the light of my assurances, my noble friend may feel able not to press this amendment.
Lord Renton: Before my noble friend sits down, of course one can well understand when he says that these default powers would rarely be used, but there are more limited default powers under the 1979 Act. New members can be appointed to the magistrates' courts committee by regulations under Section 21 of that Act. I have no recollection of any such regulations ever being made. Can my noble and learned friend confirm that that is the position?
The Lord Chancellor: That is the position. So far as I am aware, it has never been necessary to do this, but appropriate default powers are important. In a sense the fact that default powers are there underlines the point that the ultimate responsibility for running the magistrates' courts as a going concern rests with the local magistrates' courts committee and does not automatically go up any higher— perhaps "higher" is not the right word— or go anywhere else unless there is some breakdown which requires a special and legally prescribed basis for intervention.
Earl Russell: I heard what the noble and learned Lord said about courthouses but can he give us a guarantee that he will not mistake poverty for mismanagement?
The Lord Chancellor: I think I can distinguish between poverty and mismanagement. Sometimes poverty is given as an excuse for mismanagement. One must be astute to recognise the difference."Can't pay" and "Won't pay" are two different states of affairs. It is sometimes difficult to distinguish between them but it is important that the distinction be made.
Lord Mottistone: I thank my noble and learned friend for his remarks on this amendment. I shall read with care what he and other Members of the Committee have said, because I think there may be some sort of provision needed here along the lines I have suggested, although I appreciate the shortcomings of my amendment. What I should like to do at this stage of the evening, having battled away with my noble and learned friend for the whole of the past seven hours or whatever, is to say how splendidly. he has tackled us all and with such good humour. I thank him for all he has done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 80 shall stand part of the Bill?
Lord Ackner: I gave notice that I might oppose Clause 80 standing part of the Bill after having seen Amendment No.207, which has just been spoken to by the noble Lord, Lord Mottistone. I did so as a long stop, although with a settled, hopeless expectation that the noble Lord, Lord Mottistone, would achieve nothing with his amendment, as has proved to be the case. That is surprising because, leaving aside the excellent technical point raised by the noble Lord, Lord Renton, the early part of the amendment is wholly reasonable. It asks that an order should not be made without a written warning particularising the failure. That has not been achieved, and that justifies my urging that Clause 80 should not stand part of the Bill.
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The clause contains a default power which I submit is wrong in principle. It distorts the proper constitutional balance between the Lord Chancellor's Department, the magistrates' courts committees and ultimately the courts. The new magistrates' courts committees will in future be chosen for their managerial competence and will be assisted, obviously very strongly where necessary, by the inspectorate. As the past has shown, there is no need for these quasi-dictatorial powers.
At Second Reading my noble and learned friend the Lord Chancellor emphasised that it was:
"no part of my intention to seek direct managerial control". — [Official Report, 18/1/94; col.461.]
This goes beyond managerial control.
The observations of the noble Lord, Lord Callaghan, on the first day of the Committee stage on 15th February (at col.119 of Hansard) are mutatis mutandis very relevant. He said:
"The real trouble with these provisions is that they gather more power into the hands of the Home Secretary' —
for "Home Secretary" read "Lord Chancellor"—
"Whatever may be said and whatever the intentions are, this is a centralising Bill which strengthens Whitehall and weakens local authorities and local representation".
For that, read "local magistrates' courts".
In a short intervention earlier this evening, the noble and learned Lord, Lord Simon of Glaisdale, drew attention to the number of centralising measures which the Bill contains and said that we should be very wary of allowing extra powers unless they were shown to be needed. Everything I have listened to from my noble and learned friend the Lord Chancellor on this subject shows that they are not needed. Until they appear to be necessary, having regard in particular to the added strength given to the system by the new inspectorate, I submit that this is an entirely unnecessary clause and we should restrict the ever centralising moves by which the Executive creeps nearer and nearer to running the administration of justice.
The Lord Chancellor: In the next amendment my noble and learned friend proposes a new clause to deal with very much the same circumstances.
Lord Ackner: Perhaps I may intervene to say that I shall not move that amendment.
The Lord Chancellor: In putting down Amendment No.208 my noble and learned friend obviously had in mind that a condition such as that with which Clause 80 is concerned might arise.
Lord Ackner: I am sorry to interrupt my noble and learned friend again. I referred to that amendment when I moved the amendments to stop the amalgamation of magistrates' courts committees. It served as a default provision in the hopes that my noble and learned friend would accept that that gave him all the additional control that was necessary and made it quite unnecessary for him to take powers to amalgamate magistrates' courts committees. That was its relevance. It has no relevance to what I have just spoken to.
The Lord Chancellor: My noble and learned friend had in mind, as he says, an alternative method of introducing powers of amalgamation. However, the point I make is that he considered that that alternative

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should be based on a failure of duty. Therefore, when he put down Amendment No.208 he had in mind the possibility of a failure of duty by a magistrates' courts committee.
In a scheme that one expects to last, it is reasonable to make provision for such failure, in the sincere hope that the provision will never be required. However, if it did occur, it would be extraordinary to have all of a sudden to obtain legislation to deal with it. One can envisage the result. In my submission, it is right to make reasonable provision for that situation in the circumstances of the Bill. It is made absolutely plain by me in my published material that the power would be exercised only after a careful attempt to prevent its necessity. Various steps can be taken in that direction. I have no difficulty about putting those measures in the Bill if it were thought helpful. I believe that it is obvious that no one would wish to get into that situation unless and until there was a distinct failure, and that one would do everything possible to prevent it. As I say, I am prepared to put such a measure into the Bill if it would help.
I believe that it is wise to have a default power. As I said earlier, the existence of the default power emphasises the finality of the responsibility of the committee. It has the responsibility for managing and organising the service in its area. It may well be that the point that my noble and learned friend Lord Ackner makes would best be met by my attempting to see whether the procedures which I have outlined in the written paper which I put out in consequence of the consultation might be written into the earlier part of Clause 80.
I hark back to the point made earlier about the need for a written warning if one were to use default powers. Certainly it would be highly wise to have some such warning. However, I would hope that such a provision would be obvious. If there is any concern, there is no difficulty in making some arrangements along the lines of the first part of Amendment No.207 in the name of my noble friend Lord Mottistone, but without quite the detail.
Lord Harris of Greenwich: As regards Clause 80, what precedent is there for the powers that we are being invited to grant under subsection (2)? There may be many such precedents. Offhand I cannot think of any. Perhaps the noble and learned Lord will enlighten us.
The Lord Chancellor: I did not have in mind specific precedents. There are plenty of precedents for default powers. I believed that the right thing to do was to examine the particular circumstances of the service and to consider, if the organisation was failing, the likely and lightest cure that could be adopted. The chairman is obviously a key officer in that connection. It may be that substituting new people would be possible without including the chairman. The Committee will see that Clause 80 (2) (b) (ii) states that the committee:
"may include the chairman but may not consist of all the members of the committee".
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So it is an attempt to take some members out of the committee and strengthen it by that method. The reason I have chosen this type of default power is that I believe that it is best suited to the situation we have here.
There are, I am reminded, somewhat similar powers in some other legislation. For example, in the National Health Service Act 1977, in relation to health authorities, there is a default power to appoint new members to a committee. That is just one example; but I looked at the matter from the point of view of what was most likely to be the lightest and most effective way of dealing with the matter. I believe those powers are appropriate, and I do not believe that in the circumstances of this service an amalgamation is the right way to deal with default.
Lord Ackner: It would be churlish of me at this stage in the evening even to hint that my noble and learned friend had taken a bad point in referring to my Amendment No.208. However, I certainly suggest that it is not one of his better ones.
First, Amendment No.208 is in the first grouping which was some hours ago, and it does not occur in any group to which we refer. The other point is that what I proposed in Amendment No.208 gave much stronger protection, if the noble and learned Lord will allow me to say so, than the noble Lord, Lord Mottistone, did in his modest amendment to Clause 80. On the basis that usually my noble and learned friend accepts that the greater includes the lesser, I had assumed that my Amendment No.208 would be unlikely to find favour with him, having regard to the way he dealt with Amendment No.207.
I am delighted to find— though it may be a stage in the evening when one becomes a little light-headed— that there is a ray of hope that he may return to the wisdom suggested by the noble Lord, Lord Mottistone, in Amendment No.207. If that is the case, the few minutes which I have taken up may, for once, serve some useful purpose.
Clause 80 agreed to.
[Amendment No.208 not moved.]
Clause 81 agreed to.
Clause 82 [Orders and regulations under Justices of the Peace Act 1979]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos.209 and 210:
Page 46, leave out line 24.
Page 46, line 25, leave out ("22(1)").
The noble and learned Lord said: I have spoken to Amendments Nos.209 and 210 already and, with the Committee's leave, I move that they be agreed to en bloc.
Clause 82, as amended, agreed to.
Clause 83 [Minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No.211:
Page 46, line 32, leave out from ("whom") to ("not") in line 33 and insert ("section 26A(I) of the 1979 Act does").
The noble and learned Lord said: Again, I have already spoken to this amendment. I beg to move.
Clause 83, as amended, agreed to.
Schedule 7 [Magistrates' courts: minor and consequential amendments]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No.211A:
Page 73, line 18, after ("authorities)") insert ("in subsection (1B) insert after "Superannuation Act 1972" ("or under the Justices of the Peace. Act 1949 (Compensation) Regulations 1978") and").
The noble Lord said: We are getting to the minutiae now. We seek in this amendment to correct an anomaly which has existed for 15 years and which runs back 30 years further than that. The problem is who should pay for the circumstances— admittedly, one hopes, rare circumstances — when a magistrates' courts committee decides to declare a justices' clerk redundant. The situation had always been that the redundancy payments under the Justices of the Peace Act 1949 were paid for by grant rather than by the local authority. The Justices of the Peace Act 1949 was brought up to date by the compensation regulations, most recently in 1978.
When the Just. was of the Peace Act 1979 was introduced there was no specific reference to who should pay compensation for justices' clerks who were made redundant. The result was that such payments did not rank for grant and could fall on the local authority alone. The problem was that local magistrates' clerks might be influenced by the burden on the local authority in deciding whether to make a justices' clerk redundant. The quality of their personnel decision might be affected if there was a financial decision involved in it. Local authorities might not have the resources to make redundancy payments, particularly if they were in danger of being capped. Although the numbers of justices' clerks made redundant hopefully would be small, the sensible thing to do would be to make sure that redundancy payments were paid for by specific grant rather than through a levy on the local authority.
The Lord Chancellor: There has been extensive discussion between some of my officials and those in the magistrates' courts service about compensation for loss of office. As the noble Lord says, at present two forms of redundancy arrangements apply to the magistrates' courts service. First, there are payments under the Justices of the Peace Act 1949 (Compensation) Regulations 1978. Secondly, there are arrangements that apply more generally across the public sector under the Local Government (Compensation for Premature Retirement) Regulations 1982. I fully agree with the noble Lord that all compensation payments should rank for grant. I plan to bring forward amendments when the Bill is next before your Lordships which will place beyond doubt that the Lord Chancellor has power to pay grant to the responsible authorities under both schemes in respect of compensation payments for loss of office. I hope that in the light of that assurance the noble Lord will feel able to withdraw his amendment.
Lord McIntosh of Haringey: I am most grateful. That seems to be 100 per cent. satisfactory. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7 agreed to.
Clause 84 agreed to.
Clause 85 [Repeals and revocations]:
The Minister of State, Home Office (Earl Ferrers)The Minister of State, Home Office (Earl Ferrers) moved Amendment No.212:
Page 47, line 6, leave out subsection (2).
The noble Earl said: This is a technical amendment. Discipline regulations are normally revoked when a new set of regulations comes into effect. Revocation on the face of the Bill is therefore unnecessary, as it will be done when the new regulations are introduced. ! beg to move.
Clause 85, as amended, agreed to.
Clauses 86 and 87 agreed to.
Clause 88 [Extent]:
Earl Ferrers Earl Ferrers moved Amendment No.212A:
Page 48, line 24, after ("of") insert (", together with Schedule 6 to,").
The noble Earl said: Schedule 6 to the Bill is a purely Scottish provision. This amendment ensures that it is included in the extent clause as extending only to Scotland. I beg to move.
Clause 88, as amended, agreed to.
Clause 89 agreed to.
Schedule 8 [Repeals]:
[Amendments Nos.213 to 216 not moved.]
Earl Ferrers Earl Ferrers moved Amendment No.216A:
Page 76, line 40, column 3, at end insert:
("In section 14(1), the words "(whether by the appointment of tempor-ary constables or other-wise)".").
The noble Earl said: In moving Amendment No.216A, I should like to speak also to Amendments Nos.216B and 216C. These amendments add to the repeal schedule references to temporary constable and deputy chief constable repealed by Clauses 42 and 47 of the Bill. They are therefore technical amendments. I beg to move.
Earl Ferrers Earl Ferrers moved Amendments Nos.216B and 216C:
Page 76, line 41, column 3, leave out ("Section 26(7)") and insert:
("In section 26, in subsection (2) (d), the words "or temporary"; and subsection (7).").
Page 76, line 42, column 3, after ("31") insert:
(", in each of subsections (2) and").
[Amendment No.217 had been renumbered 2I9A.]
Earl Ferrers Earl Ferrers moved Amendment No.218:
Page 78, leave out lines 15 to 17.
The noble Earl said: In moving Amendment No.218 I should like to speak also to Amendment No.219.
These amendments are linked to those already agreed by the Committee to Clauses 29 and 32. The first restored the reference to "disciplinary proceedings" in Section 88 of the Police and Criminal Evidence Act

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1984. The second includes the list of repeals of parts of the Police and Criminal Evidence Act 1984. The repeal of Section 97(4) was agreed when the Committee discussed Clause 32 of the Bill. I beg to move.
Earl Ferrers Earl Ferrers moved Amendment No.219:
Page 78, line 26, column 3, at end insert:
("Section 97(4).").
Earl Ferrers Earl Ferrers moved Amendment Nos.219A to 223:
Page 78, column 3, leave out line 54 and insert:
("In section 29(1) the words ", joint magis-trates' committee or magistrates' courts committee" and the words "or committee". In section 29(3)").
Page 79, line 2, column 3, at end insert:
("In section 30(1) the words ", joint magis-trates' committee and magistrates' courts committee".").
Page 79, line 5, column 3, at end insert:
("Section 32(8).").
Page 79, line 5, column 3, at end insert:
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("In section 36 the words ", joint magis-trates' committee or magistrates' courts committee", and the words "from a con-stituent council" in the second place where they occur.").
Page 79, line 11, column 3, at end insert:
("In the tables in Parts II to IV of Schedule 10, in column 1 the words "Joint magistra-tes' committee" and column 2.
In the table in Part V of Schedule 10, in column 1 the words "Magistrates: " onwards and column 2.
In the tables in Parts VI and VII of Schedule 10, in column 1 the words "Joint magistra-tes' committee" and column 2.").
The noble Earl said: These amendments repeal a number of provisions of the Local Government Act 1985 relating to the appointment of magistrate members of joint authorities, including police authorities. I beg to move.
On Question, amendments agreed.
Schedule 8, as amended, agreed to.
House resumed: Bill reported with amendments.
House adjourned at three minutes past 11 o'clock.