Police and Magistrates' Courts Bill [H.L.]

HL Deb 22 February 1994 vol 552 cc591-624

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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.

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 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 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 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 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.

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 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 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 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 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 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 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 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.

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 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.

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 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 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.

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 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.

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 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". 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 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 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 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) 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 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 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 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 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 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 moved Amendment No.219: Page 78, line 26, column 3, at end insert: ("Section 97(4).").

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: ("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.