Lords Sitting of 17 March 1994

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Bristol.): The LORD CHANCELLOR on the Wool sack.

"Convener"
Baroness Faithfull Baroness Faithfull asked Her Majesty's Government:
Whether they will encourage the wider use of the word "convener" (as in Scotland) to describe the occupant of the chair in meetings of central and local government committees, of parliamentary committees and of other public bodies.
The Paliamentary Under-Secretary of State, Department of Employment (Lord Henley): My Lords, in meetings of public bodies the title of the occupant of the chair is generally a matter for those involved to decide. It follows that government intervention in such matters is inappropriate. I would have no less faith in the abilities of the chairman of the All Party Parliamentary Group on Children, my noble friend, should she wish to be described differently.
Baroness Faithfull: My Lords, I thank my noble friend for that reply. Does he agree that in your Lordships' House, in the other place and indeed in the country as a whole many women take the chair of committees? Some women—some women only—object to being called "chair"; and wooden in the head though I may sometimes be, I do not have wooden arms, wooden legs or wooden anything else. The word "convener" is used, very rightly I believe, in Scotland to mean the chairman. What legal measures would have to be taken in your Lordships' House to alter the name chair or chairperson to convener?
Lord Henley: My Lords, it was a Member of another place who described the use of the word "chair" as not so much feminism as furniturism. As regards our own committees and Committees of the House, it would be a matter for the House itself to decide. I suggest that my noble friend takes it up with the usual channels, but it would require a change in Standing Orders. I imagine that most people would be perfectly satisfied with continuing with the use of the word "chairman", which, as we all know, covers both men and women. I honestly do think that it is a matter for any individual body to decide exactly which title it should use.
Baroness Turner of Camden: My Lords, is the Minister aware that his noble friend Lady Faithfull speaks for a good many women in the House and, I am sure, elsewhere? I am not very keen either on being addressed as if I were an item of furniture. The term "convener" has an honourable history in industrial relations elsewhere and I have had the pleasure of being
380
a convener of shop stewards from time to time. I would suggest that we have a similar arrangement in the House. I see no reason why not.
Lord Henley: My Lords, as I said, it is not a matter for the Government. We already have one convener in this House. I think, certainly from the noises behind me, that most people would prefer to stick with the word "chairman", which is perfectly satisfactory and covers both sexes.
Lord Marsh: My Lords, would the noble Lord be prepared to join other members of the Government to consult the Convener of the Cross-Bench. Peers, who could no doubt give advice from experience on this matter which he would find helpful?
Lord Henley: My Lords, we would always be prepared to consult the Convener of the Cross-Bench Peers. But whether the convener could bind her colleagues on the Cross Benches is a matter for the Cross-Benchers themselves to decide. I suspect that our consultations might have to go somewhat wider than just the convener herself.
Lord Hailsham of Saint Marylebone: My Lords, can we not come to terms with the fact that in the English language "man" has two quite separate meanings? One is a human being, as in, "Man is born unto trouble, as the sparks fly upward"; the other is a male human being. Most other languages have separate words for the two. Would it not be better to come to terms with that fact instead of always trying to be politically correct?
Lord Henley: My Lords, I would be the last to wish to be politically correct. My noble and learned friend is quite right, in that, as I said, "man" will cover both in this case. I do not actually think it is a matter of any great importance. If I may, I would refer you all to the very famous lines from Shakespeare:
"What's in a name? That which we call a rose By any other name would smell as sweet".
Lord Jenkins of Putney: My Lords, if we are going to start along this path, will the noble Lord put as a high priority getting rid of the hateful word "spokesperson"?
Noble Lords: Hear, hear!
Lord Henley: My Lords, I think the House noted and generally supported the noble Lord's comments. I have no very strong views on this matter. The Government do not feel it is appropriate that we should intervene in what, for example, no doubt the party opposite would refer to its spokesmen as.
Lord Tordoff: My Lords, does the noble Lord agree that one can take this "person" business too far? Is he aware that on a certain student occasion a friend of mine whose name was Guy Chapman was referred to as Person Person Person?
Lady Saltoun of Abernethy: My Lords, is the noble Lord aware that in my youth, which was admittedly a very long time ago, to describe anybody as a person was highly derogatory?
Lord Henley: My Lords, the noble Lady is quite correct. I understand that her youth was in fact not quite as long ago as the noble Lady would like to think.

Health Checks for the Elderly
3.6 p.m.
Lord Stallard Lord Stallard asked Her Majesty's Government:
Whether the implementation of the annual screening by their GP of people aged 75 and over is being monitored and whether the information about the health of the older population emerging from the screening scheme is being gathered and evaluated centrally.
The Paliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the purpose of screening people of 75 and over is to enable general practitioners to provide them with the best possible care. Local monitoring of general medical services is carried out by family health service authorities. There is no requirement to collect the information centrally.
Lord Stallard: My Lords, I am grateful to the noble Baroness for that reply. Can she confirm that the requirement to carry out the screening tests was inserted into GPs' terms of reference in 1990? In fact it was explicitly mentioned in the Patient's Charter that people had a right to an annual visit if they were 75 or over. Is she aware that various surveys and reports which have recently come to light show that there has not been universal implementation of the checks? Can that be confirmed by the department and can pressure be brought to bear on those GPs who are not carrying out the checks? What is important is that the information gleaned from the checks should be used to enable us to plan future services and resources for the health and care needs of the elderly.
Baroness Cumberlege: My Lords, as I understand the position, everyone over 75 is offered an invitation to have a health check. But the way that the check is done is not standardised. It is done in different ways in different places. We are reviewing it at the moment and there will be a submission to Ministers in due course.
Lord Carter: My Lords, can the Minister assure the House that where the annual screening of people over 75 reveals a need for the provision of services, both the health service and care providers have an obligation to provide individuals with those services? Are the Government satisfied with the situation revealed by the recent survey of the Royal College of Nursing? It showed that one in four of the elderly people most at risk are not receiving any form of statutory service.
Baroness Cumberlege: My Lords, when needs are detected in people over 75 and, indeed, at other ages it is up to social services and health authorities to try to meet those needs within the resources available.
Baroness Jeger: My Lords, has the noble Baroness no way of finding out how many GPs are not informing their patients of 75 years of age of the right to request
382
attention under these provisions? To my knowledge there are very many patients who do not know about these provisions and whose GPs take no steps to inform the patients of their rights.
Baroness Cumberlege: My Lords, I shall certainly look into that matter. As I understand the position, if a person aged 75 or over is on a GP's list, then that person is invited to the local practice for a check.
Baroness Fisher of Rednal: My Lords, does the noble Baroness agree that it is important for the information to be collected and evaluated so that provision can be made for the patient's care in the community or acute hospital care? Does she further agree that if the tests are not done, the evaluations are not brought forward? How, therefore, can the Government plan the services for them?
Baroness Cumberlege: My Lords, the main purpose of the check is to enable GPs to give appropriate care to elderly patients on an individual basis. Some family health service authorities are collecting the information on local needs and using it in terms of purchasing. Other research is taking place. At the moment the Medical Research Council is conducting a trial. Professor Phillips, now at Sheffield University, did some research in Southampton. Professor Idris Williams, a professor of general practice at Nottingham Medical School, is also undertaking some research. In addition, some local research is being done in north Kensington. I know that there are other schemes as well. So, although the information is not being collected centrally, it is certainly being used in research projects. But we have to be careful. If we ask GPs to collect more and more information and to submit more and more central returns, it means that they have less time to give to patients. We are anxious to reduce the bureaucracy.
Lord Ewing of Kirkford: My Lords, can the noble Baroness advise me whether these tests are available from the doctor who looks after the Palace of Westminster? If that is the case, would he need to employ extra staff to take care of your Lordships' House?
Baroness Cumberlege: My Lords, the test covers sensory functions, mobility, mental condition, physical condition, social environment and the use of medicines. When I look around the Chamber, I believe that noble Lords are in excellent condition.

School Closures
3.12 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What is the maximum number of schools which they have estimated may be closed under their plans for the rationalisation of school places.
The Minister of State, Department for Education (Baroness Blatch): My Lords, the Government have made no such estimate. It is for local education

383
authorities to take action to rationalise their provision of school places. The means by which they do this will depend on local circumstances.
Lord Judd: My Lords, does the Minister accept that there is widespread anxiety that within the DFE there is a hit list of local authorities, with specific schools indicated, on which the Secretary of State intends to move after the spring local elections, as his draconian powers take effect? Can the Minister say whether or not such a list exists? If it does, can she say how many local authorities and schools are on it, how many are grant-maintained and how many are local education authority schools? Will she give a categorical assurance that any proposals under consideration will be made public before the elections and not after them?
Baroness Blatch: My Lords, no such list exists.
Lord Merlyn-Rees: My Lords, in that case, on what criteria does the Secretary of State take a decision to shut a school other than because of numbers?
Baroness Blatch: My Lords, it very much depends on the case which is put to the department by the local authority. It will be for the local authority to come forward with a plan either to reorganise the schools, to amalgamate them, to change the organisation in some way or indeed to close a school. It will be on the merits of the case presented to my right honourable friend by the local authority which will influence him in his determination.
Earl Russell: My Lords, the noble Baroness is doubtless aware that one reason that schools go grant-maintained is to avoid closure because of excess placings. Does she therefore agree that rationalisation and going grant-maintained are, to a degree, alternatives and which of these represents the Government's objective?
Baroness Blatch: My Lords, there have been 85 applications to my department for grant-maintained status where those schools have been subject to closure proposals by the local authority. Of that number, 50 have been accepted for closure. Therefore, I can say that my right honourable friend does look at the merits of the case.
Baroness Fisher of Rednal: My Lords, was the Minister entirely correct when she said that the Secretary of State had not given notice to local authorities? He has given quite definite instructions to the Birmingham local authority as to how many schools it has to close.
Baroness Blatch: My Lords, the noble Baroness makes an important point. I need to make a distinction between the issue of surplus places and whether my right honourable friend has a specific list with named schools in named local authorities. What my right honourable friend is doing, and has taken the power to do in the Education Act 1993, is to require information to come from local authorities and from the Funding Agency for Schools, when it is established on 1st April, to say how many places they have in their authority and
384
how many children occupy those places, which gives a figure of how many surplus places there are. That information leads on to the pupil projections both for primary and secondary schools. The question which follows from that will be as to what percentage of those places it would be practicable to move. That must be work done by the local authority.
Lord Richard: My Lords, the Minister has told us that there is no specific list. Does that mean that the Government have no intention of implementing a pattern of closures? If the Government do riot have any intention of implementing a pattern of closures, what on earth do the Government need the powers for?
Baroness Blatch: My Lords, according to the 1991 survey, there were about 1.3 million spare places in the country. Those spare places cost the state money in local and national taxes to the tune of about £300 million simply to keep the buildings heated, lit and maintained. That is a very considerable sum of money. My right honourable friend has a fallback power under which local authorities and the Funding Agency for Schools, when it is established, at least look at ways of making sure that that money is diverted to children in the classroom rather than being used for classrooms without children. Where a local authority drags its feet and refuses to accept its responsibilities in this matter, my right honourable friend has a fallback power: first, a directional power. He can direct a local authority to address the issue. He has another power which allows him to bring forward his own proposals, which would be an extreme use of those powers. If he ever did that it would be subject to public inquiry.
Lord Dormand of Easington: My Lords, is the Minister aware that there is evidence of overcrowding in some classes? In those circumstances, will the Secretary of State and the Minister be extremely careful as to what is done about that? Is she further aware that, on paper, some of the worst cases concern village schools? I believe that all Members of your Lordships' House will be aware of the great value of village schools—I am glad to see the Minister is nodding in agreement—where the workload for teachers is very heavy indeed? I hope that the Secretary of State, the Minister and the Government will be extremely careful about decisions which are taken to close those schools even though it appears that there are vacancies in them?
Baroness Blatch: My Lords, I can give the noble Lord an absolute assurance that the case for retaining schools in rural areas is the strongest. Distance factors and isolation of those schools are very important and are matters which my right honourable friend will certainly take into account. As regards overcrowding, at the top of the priority list for bids for capital is the need to provide places for children in schools either in overcrowded conditions or where in fact there are no places for children.
Viscount Eccles: My Lords, would the Government consider using some of these schools which they are closing for nursery education?
Baroness Blatch: My Lords, again, that is a very important point and a matter for local authorities. If they wish to use spare places for nursery provision, that is their decision. My department has not yet turned down a request for extended nursery provision.
Lord Judd: My Lords, does the Minister accept that we have noted very carefully her assurance that no such list exists? Will she give us an equally categorical assurance that no proposals will be brought forward after the spring elections? Can she also assure us that, whatever considerations are made in the future in consultation with local authorities, there will be space for real parental choice, which must require some surplus places if parental choice is to be exercised?
Baroness Blatch: My Lords, I said at the beginning that it was a question of what percentage of that million or so places can be removed in a practical way. As regards choice, if it is a question of sending children to a half-filled unpopular school, it might be better for a local authority to consider expanding a popular school and giving the children in the unpopular school a much better chance of education. So it is important that local authorities link quality as well as school places. I cannot give the noble Lord any assurances about how my right honourable friend will use his powers in the future, but the local authorities must be seen to be in default of their own duties before my right honourable friend will take those powers.

Visible Trade Balance: Prospects
3.20 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What are the prospects for the visible trade balance in the light of the figures reported on 12th March.
Lord Henley: My Lords, the prospects for visible trade remain good. Unit labour cost performance is excellent and competitiveness is much improved. The latest figures show that exports to non-EC countries are doing well.
Lord Ezra: My Lords, does not the noble Lord agree that the recently published figure of £13.5 billion for the visible trade deficit for last year is unacceptably high? Is he not further disturbed by the comment made by the Central Statistical Office when presenting those figures that it thought that the trend was likely to increase—that is, that the gap will further widen—even though the pace of economic recovery is fairly slight at present? Are we not then back in the old familiar cycle that as soon as the economy starts to recover, we move rapidly into a balance of payments crisis? Does the Minister recall that in 1985 the Aldington Report on overseas trade drew attention to precisely that problem? What have we been doing in the past 10 years?
Lord Henley: My Lords, I accept that the figures are high. They are higher than the original estimate. The figures that we announced last week, particularly for the month of December, were particularly high. We need to
386
be fairly cautious about reading too much into just one month's figures. Further, we ought to be aware that there have been considerable problems with the new system for measuring trade with our EC partners, which accounts for a little over half of our total. The noble Lord ought to note that revisions have been made to earlier months almost every time that a new set of figures has been produced under that new system; and, further, that the figures have been very erratic within 1993. Therefore, it might be rather rash to take just one month's figures, particularly as those December figures were the worst for a year. However, August's figures were the best for some six-and-a-half years. I think that that puts the figures in context. I do feel that there are good signs: the fact that our trade to non-EC countries is improving. The fact that they are weak in relation to Europe is not surprising given the weak activity there, but I believe that we are in a very strong position to benefit from any growth in activity there when that comes.
Lord Clark of Kempston: My Lords, does my noble friend agree that opting out of the social chapter has given us the edge on competitiveness? It has enabled us to control our unit costs of production far more than our competitors. Indeed, our export record is extremely good compared with Japan and the USA. Does my noble friend agree that while visible trade is extremely important, we should not overlook the value of our invisible trade, which is doing extremely well against all competition?
Lord Henley: My Lords, my noble friend is right to stress the importance of competitiveness. Noble Lords opposite ought to remember that. We have to produce the right goods at the right time. We have seen considerable cost competitiveness improvements of some 20 per cent. since we left the ERM, partly due to the lower exchange rate, but also due to a very good and improved unit labour cost performance. Further, my noble friend stressed the importance of invisibles. At the moment, we have only the final year figures for visible trade; but I can assure my noble friend that when one adds the surplus on invisibles to the deficit on visibles for 1992, that reduces the deficit from £13.4 billion to £8.5 billion. Therefore, the performance of invisibles in this sector is of crucial and vital importance.
Lord Bruce of Donington: My Lords, I agree that it is dangerous to take the figures for just one month. However, is the Minister aware that our £13.5 billion trade deficit with the rest of the world last year included a trade deficit of no less than £4 billion with the European Community, and that the average deficit with the EC over the past three years has been £4 billion per annum while over the past 12 years it has been £7.5 billion? Will the Minister ask his right honourable friend, who is at the moment in delicate negotiations in Brussels, to bear that in mind together with the fact that we pay £2.5 billion out of our own Exchequer into the EC? Will he be a little more robust when dealing with criticism from the Foreign Office of Luxembourg and with some unelected and unaccountable members of the Commission?
Lord Henley: My Lords, I doubt whether I could be quite as robust as the noble Lord. I can assure the noble Lord, that, yes, there is a deficit in our trade with Europe. That is regrettable. As I said earlier, we have to treat the figures for the past year with some caution because the new Intrastat system is just bedding down. If the underlying message of the noble Lord is that by pulling out of the European Community we shall dramatically improve our trade figures with Europe, I think that the noble Lord is quite mistaken.
Lord Jenkins of Hillhead: My Lords, I accept that one should not put too much emphasis on one month's figures and that of course invisibles have always improved the visible trade deficit. Nonetheless, I find that the Minister's answers verge on the complacent. It is not a question of one month; it is a question now of a cumulative deficit over several years. To have that size of deficit at the hesitant beginning of a trade recovery would, frankly, terrify me if I were in charge of the Treasury. How is it possible to reconcile that persistent weakness in the balance of payments with the claim that the British economy has been improved out of all recognition in the past 10 years?
Lord Henley: My Lords, I totally reject the noble Lord's allegations of complacency. What I was trying to emphasise was that although the figures are bad—and although they are bad particularly in relation to Europe —there are more reliable figures than Intrastat for our trade with non-EC countries which show exports growing and doing rather well. In the three months to January 1994, export volumes to non-EC countries were up 10 per cent. on the same three months a year previously. Further, more recent evidence from the CBI survey of exports, which is a very reliable survey, does not indicate such poor export performance. After a slight dip in the summer and autumn of last year, the balance of firms with export orders above normal has improved and is well above the long-run average. We expect export deliveries to continue to show that improvement.
Lord Barnett: My Lords, if the Government achieve the level of growth this year which many of us would like to see, but if that comes from consumer-led growth, does the Minister think that that will help the visible trade balance or not?
Lord Henley: My Lords, I think that we shall have to wait to see exactly what will happen. It is difficult to say precisely what is being imported at the moment. Some of it is manufactures, which implies a growth in consumer expenditure. Some of it is semi-manufactures and some raw materials. The semi-manufactures and raw materials are needed to help industry as it recovers, and to help with further exports as they are processed and sent on.
Baroness Platt of Writtle: My Lords, can my noble friend tell the House what the Government are doing to encourage those firms which are making better products in Britain so that we can reduce our imports as well as increase our exports?
Lord Henley: My Lords, the DTI does a great deal to assist exports and to assist industry generally. The reorganisation of DTI export promotion services provides a better focus on the United Kingdom's top 80 export markets. Further, particular help has been given to exporters through the ECGD. In the last Budget—November 1993—measures were introduced to reduce premiums for exports to Mexico, India and Turkey this year and next, with an increase in cover for 1996ߝ97 of some £200 million on top of the provision of some £3 billion for markets where exposure is already high.
Lord Eatwell: My Lords, does the Minister recall that the Budget Red Book contains projections of the PSBR up to 1999? Is he aware—I am sure that he is —that it would have been technically impossible for the Treasury to make those projections without taking a view as to the path of the current account of the balance of payments, and hence of visible trade, up to 1999? The Treasury must have made those estimates. Will he share them with the House?
Lord Henley: My Lords, it is always very difficult to make any estimates. Our estimates about the PSBR prove my exact point. From yesterday's figures it appears that we are going to be well within our targets on the PSBR, which is in fact wide of the Question on the Order Paper. As likely as not, it will be well below the £50 billion that was originally forecast in the Budget Red Book in the PSBR.
Lord Eatwell: My Lords, the point I was making was not about the PSBR, but that the estimate of the PSBR must technically also involve an estimate of the current account. One cannot do one without estimating the other. Since the Treasury must therefore have estimated current account and visible trade balances up to 1999, will the Minister share with us those estimates of the current account?
Lord Henley: My Lords, the point I was making was that any estimate, by definition—as it is an estimate of something that is going to happen in the future—can change, and will not necessarily be the same in the end as one originally forecast. As I pointed out, the PSBR looks, from yesterday's figures—I should welcome some praise from the noble Lord—as if it will be well below the original level set by the Government.
Earl Russell: My Lords, is the Minister aware that the view is widely held in industry that it is a wanton handicapping of our competitiveness to transfer to industry social costs such as statutory maternity pay, which have hitherto been borne by government? Before he says that national insurance changes compensate for that, will he consider the argument that exchanging a temporary concession for a permanent cost is literally selling one's birthright for a mess of pottage? In the light of those points, will he concede that the noble Lord, Lord Clark, is only relatively right?
Lord Henley: My Lords, if the noble Earl believes that, perhaps he will persuade his party to rescind its support for the social chapter, which would put on industry the very cost about which the noble Earl is complaining.
3.31 p.m.

British Railways (No. 4) Bill
Read a second time, and committed to an Unopposed Bill Committee.

Sustainable Development: Select Committee
3.32 p.m.
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee—

L. Barber of Tewkesbury,

L. Beaumont of Whitley,

V. Blakenham,

L. Chapple,

L. Chorley,

L. Gregson,

L. Jenkin of Roding,

E. Lindsay,

B. Nicol,

L. Skidelsky,

L. Tombs (Chairman);

That the Committee have power to adjourn from place to place;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out;
That the Committee have power to appoint Specialist Advisers;
That the Committee do meet on Tuesday, 29th March at a quarter-past three o'clock.—(The Chairman of Committees.)
Lord Renton: My Lords, I wonder whether the noble Lord Chairman can help with regard to what is said about minutes of evidence. It seems that they are all to be printed, but it is only if the committee thinks fit that they are to be delivered out, whatever that means. It is an unusual phrase, and it is something up with which the late Sir Winston Churchill would not have put.
The Chairman of Committees: My Lords, it is with the greatest hesitation that I have to say that I fear that the noble Lord is mistaken. Those are perfectly usual and normal words which are used on such occasions.
Lord Boyd-Carpenter: My Lords, perhaps I may ask my noble friend what "sustainable development" means.
The Chairman of Committees: My Lords, I am not sure whether the noble Lord, Lord Boyd-Carpenter, wants me to give the long or the short answer. I suspect that the shorter one would probably please the House more. This is a matter of immense complexity. Perhaps we may leave it to the Select Committee.
On Question, Motion agreed to

Police and Magistrates' Courts Bill [H.L.]
3.34 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Earl Ferrers.)
On Question, Motion agreed to.
Clause 21 [Acceptance of gifts and loans]:
Lord Harris of Greenwich Lord Harris of Greenwich moved Amendment No. 119:
Page 15, line 9, at end insert:
(" ( ) The Secretary of State shall not take account of the amount of any gift or loan accepted by the police authority under this section in determining the amount of grant to be made to the authority under section 31(2) of this Act.
( ) A police authority shall not take account of the amount of any gift or loan accepted by it under this section in issuing a precept or calculating its budget requirement under sections 40 and 43 of the Local Government Finance Act 1992.
( ) The Secretary of State shall preclude the acceptance under this section of any gift or loan which may interfere with the operational independence of the chief constable or the impartial discharge of his duties.
( ) The Secretary of State shall require every police authority to publish in its annual report the identity of those making gifts or loans under this section and the amounts thereof.").
The noble Lord said: My Lords, the purpose of the clause that we are debating is to allow a police authority to accept gifts of money and gifts or loans of other property. According to subsection (2), the terms upon which the gifts or loans are accepted can include,
"the commercial sponsorship of any activity of the police authority or of the police force maintained by it".
As the House will recall, we debated this issue on 21st February. When asked by a number of us why it was that the clause had been incorporated in the Bill, the noble Earl said that it merely formalised the existing position as regards gifts and sponsorship accepted by some police forces as part of crime prevention campaigns. Of course, none of us has any objection to support from private individuals or commercial concerns for crime prevention campaigns. Indeed, a few days ago I had the opportunity to see one in Newcastle where, as a result of a substantial amount of support from the private sector, closed circuit television had been installed in many areas of central Newcastle, which had proved to be of considerable benefit to the police.
All that I would say on that point is that I have found no one in the police service who has expressed to me any doubt about the legal basis of support of that character. I should therefore be immensely grateful if the noble Earl could give the House some examples of where police authorities or chief officers had indicated some doubt about the legal basis for receiving such support.
However, let us assume that the clause is necessary. As the Minister will recall, a number of us—not least the noble Lord, Lord Knights, speaking as a former president of ACPO and a chief constable of wide experience—expressed concern about what could happen. The Minister assured us that there would be a code of practice, spelling out in general terms what would be accepted and what would not. The Minister

391
agreed with us, for instance, that it would be wrong for an authority to accept money if the purpose of that money was to ensure that one particular area of a police authority received more intensive policing than another area. Of course I welcomed that assurance, as indeed did others.
want to ask the Minister whether that particular point will be spell: out in the code of practice. The Minister may say, "Well, we have not drafted the code of practice as yet". Indeed that undoubtedly is almost certainly true, but, if he accepts that it would be wholly wrong for a police authority to accept money on such a basis, I can see no conceivable grounds which would prevent him from assuring the House that this principle will be installed in the code of practice.
Next, I ask the Minister for an assurance relating to the risk that, at a time of severe financial constraint applied to a police authority so far as concerns its spending, an authority might in such circumstances urge its chief officer to establish financial targets for commercial sponsorship. That would be wholly objectionable. I hope that the Minister will agree with me It would be wrong to encourage senior police officers virtually to take collecting boxes around the local community—to commercial organisations or private individualsx2014;in such circumstances. It would be even more objectionable if performance related pay, which is being established in the Bill for the first time in the history of the British police service, was in any way linked to that. When I put those points to the Minister, he replied to the other points, but he did not reply to that one.
Therefore, I should be grateful if the Minister would tell the House whether that too will be dealt with in the code of practice. Many of us who are doubtful about the clause will be reassured if we are told that this particular issue will be addressed in the code of practice. After all, the Government are asking for Parliament's approval of the clause and it is perfectly reasonable that we should ask for such anxieties to be dealt with at this stage.
Finally, I turn to the first two subsections of the amendment. Their purpose is to clarify the intentions of the Government. Will gifts or loans made to an authority as a result of this clause be for additional expenditure or, if an authority attracts funds on a significant scale, will that lead simply to a reduction in the financial grant from the Government?
The Government are asking for new powers and it is right that the House should have these particular anxieties addressed by Ministers. I beg to move.
Baroness Hilton of Eggardon: My Lords, as the noble Lord, Lord Harris, said, there is a long history in the police service—in my experience it goes back 30 years—of accepting minor sponsorship for community activities such as crime prevention. I remember that in Bethnal Green, Watneys, the local brewers, sponsored a first-aid quiz for local schools. It donated a shield for the local schools to compete for. Similarly, in relation to crime-prevention quizzes between local schools, local firms donated small cups or prizes. For many years the London-wide five-a-side football competition, in which thousands of London schoolchildren took part, was
392
sponsored by a variety of commercial firms which saw that they could benefit from the advertising involved. However, there was no direct benefit to any aspect of police duty; it was more to do with community relations and improving the lot of some children from deprived parts of London.
I had some qualms when the principle was extended to the idea of a confidential crime line where commercial firms could combine together to provide rewards of money for information leading to the solving of serious crimes. The Bill provides for a further extension of such sponsorship beyond the purely ancillary aspects of police duty. It formalises and legalises in a disturbing way the possible sponsorship of core police activities.
The Bill provides that gifts and loans can be accepted:
"for the commercial sponsorship of any activity of the police authority or of the police force maintained by it"
I wonder whether that means that we shall be seeing neighbourhood beat officers who are sponsored by McDonald's or Wimpey's and who are required to wear their logos on the backs of their uniforms? The Bill as drafted allows for such extreme possibilities to occur. The whole idea that the core activities of police might in this way be sponsored on a commercial basis, is disturbing. It has great potential for distorting the police role and of appearing to accept inducements to police certain areas or premises to a favourable extent.
We should like to see these amendments on the face of the Bill. They would ensure that all such loans or sponsorship were published every year, which would be a form of accountability to the local community. They also restrict to some extent the kind of sponsorship and gifts which the police service will be allowed to accept. It is an important measure of principle that the police service should maintain its position of neutrality and dispassion in discharging its duties. fear that commercial sponsorship to any extent will distort that impartial discharge of police duties.
3.45 p.m.
Lord Boyd-Carpenter: My Lords, this is an odd amendment, and in particular the first two paragraphs. Why should not the Secretary of State take account if a generous donation is given to a local police force? Surely, when the Secretary of State is considering the competing needs of various police forces, the fact that one is receiving substantial donations is a relevant consideration which he should take into account. Equally, why should the police authority not take account of such payments? I appreciate that there are dangers in such payments but, equally, I am sure that there are circumstances in which they are thoroughly appropriate. If they are made—and the amendment accepts that they will continue to be made—why on earth should not the competent authorities take them into account in assessing the needs of their particular police force?
Earl Ferrers: My Lords, I understand why your Lordships are anxious that the matter should be made clear. I assure your Lordships that there is nothing sinister in the clause. The provision regularises a

393
practice that has occurred for a number of years but which was not envisaged 30 years ago when the previous Police Act was brought into operation. It formalises the existing procedure.
The noble Lord, Lord Harris of Greenwich, said that he had spoken to many chief constables. That does not surprise me. He said that they have experienced no difficulties about this. That does not surprise me either. It is the Government's view that the legal basis for gifts and sponsorships is uncertain. Therefore, we thought it appropriate to put the matter right in the Bill.
The noble Baroness, Lady Hilton, sent her imagination into overdrive when she suggested that beat officers would be wandering around having been sponsored by McDonald's or Wimpey with suitable logos attached to their helmets. The idea is extremely funny but totally farcical, and that is certainly not what is intended by the clause.
In Committee I mentioned examples of such cases. It involves gifts, loans and sponsorship—for instance, support for regional neighbourhood watch conferences, which I understand General Accident has sponsored. There may also be loans of cars which are fitted with crime prevention devices, which Vauxhall has provided. Publicity booklets and schools liaison information packs could also be funded in this way. That is what we have in mind.
The noble Lord, Lord Harris, sent his imagination into overdrive when he envisaged chief constables wandering around their patches with collecting boxes trying to raise money for the funding of their forces. He went further, and said, "What is more, we have to be careful that their performance-related pay is not related to the amount of money which they get in their collection boxes". Again, that was funny but rather farcical.
The purpose of the provision is to clarify what is happening at the moment. The amendment draws attention to four different points. In relation to the first substantive point, we do not propose that gifts, loans and sponsorship should be taken into account for the purposes of calculating government grants to the police authority. Government grants are made for the policing to be carried out and if sponsorship is given, that is an additional facility which police forces will be able to enjoy and make use of.
It is obvious that there must be controls on this kind of activity. However, we do not believe that the right way to do this is in the Bill or for the Home Office to make detailed regulations. We believe that the sensible way is to address all these practical issues by producing a code of practice, which might specify in greater detail than we are able to on the face of the Bill, what should and should not be permitted.
With regard to the second substantive point, for the same reasons I do not think that it is necessary to include a provision in the Bill for police authorities not to take account of gifts or loans in issuing a precept or calculating the budget requirement. As well as the criteria which will be contained in a code of practice to be issued by the Secretary of State, police authorities may wish to draw up their own policies, including their
394
own criteria for the acceptance of gifts, loans and sponsorship. It seems unlikely that police authorities would ever want to reduce the amount of the precept by the amount of money which they will have gained by sponsorship because, by so doing, they will have reduced—and not increased—the money available to them for policing.
The third point of the amendment seeks to ensure that the operational independence of the chief constable and the impartiality of the force is maintained. I wholeheartedly agree with the spirit behind the amendment. Indeed, in previous debates on this clause, I have said that I understand the worry that improper use might be made of gifts or loans, or that those giving them might want to use them as a means of influencing a police force. It is for that reason that it is intended that the code of practice will pay careful attention to issues of probity and propriety and will address the main concerns in greater detail than would be possible in the Bill.
The fourth point of the amendment suggests that the Bill should include provision for police authorities to publish details of gifts and loans in their annual reports. I agree that it is important for proper records of the value and source of gifts and loans received to be maintained and published, and the code of practice will give guidance to the police authorities and forces over this matter.
To include in the Bill a statutory requirement to publish details in the annual report would seem a touch heavy handed. The value of gifts and loans, which are received by forces at present, amounts only to a tiny proportion of overall expenditure. In fact in some forces it amounts to less than £50,000 a year. We do not anticipate large increases in gifts, loans and sponsorship as a result of this particular piece of legislation, and it would seem inappropriate to provide by statute that specific details relating to even one small item of income or expenditure should be necessarily included. Police authorities should, however, be able to provide details if required, and I would expect them to do so.
I understand the issues which lie behind the amendment. I believe that they can be satisfactorily addressed in a code of practice issued under Clause 11 of the Bill and not by amending Clause 21. I would re-emphasise that the whole purpose of the clause is not to highlight or to create some new and hitherto unpractised source of income but merely to put on a clearer statutory basis practices which occur at present. I hope that I have been able to satisfy the noble Lord, Lord Harris of Greenwich, and the noble Baroness, Lady Hilton, that there is nothing mischievous behind the clause and that it is perfectly straightforward.
Lord Campbell of Alloway: My Lords, it seems to me wholly sensible to issue a code of practice. That is an appropriate means of dealing with the matter. Is it intended to introduce a provision in the Bill which enables the code of practice to go before Parliament for approval, either by the negative or affirmative procedure? This is an important question. It could, in the minds of some of us, warrant parliamentary approval.
Earl Ferrers: My Lords, the Home Office would normally draw up such a code of practice to be given to chief constables and police authorities. It would not normally come before Parliament for approval.
Lord Carr of Hadley: My Lords, before my noble friend sits down, he will no doubt recall that in other fields of legislation, where codes of practice have been used, although the code of practice terms are not directly enforceable, whether or not parties comply with a code of practice can be used in evidence in any case which is brought. I believe that that is an extremely important power with regard to the effectiveness of the code of practice.
Earl Ferrers: My Lords, my noble friend is right. As happens so often on these occasions, one has second thoughts. I believe that the information I gave to my noble friend Lord Campbell of Alloway was incorrect. The codes of practice will be laid before Parliament and will be subject to the negative resolution procedure.
Baroness Trumpington: Neither.
Earl Ferrers: My Lords, I am receiving conflicting advice of an extremely unhelpful nature. I can tell my noble friend that non-compliance with the code is unlikely to be used in court proceedings. In fact, the code of practice will be laid before your Lordships' House and will be subject to parliamentary procedures.
Lord Harris, of Greenwich: My Lords, the exchanges between the noble Earl and the noble Baroness, Lady Trumpington, give a fairly clear indication of the careful way in which the Bill has been thought through by the Government. "Yes", "no", "maybe", "perhaps", appear to be the answers given by the noble Earl.
The noble Earl recognises that we are concerned because for the first time in law there is to be a section of an Act of Parliament which provides, according to subsection (2) of Clause 21, for,
"the commercial sponsorship of any activity of the police authority or of the police force maintained by it".
In the past, we have found no need for any such statutory provision There has been plenty of support from the private sector and from individuals in crime prevention initiatives.
I told the noble Earl that I had asked a number of chief officers whether they had found any difficulty about the existing law and they said that they had found no such difficulty. Why is the provision required? The noble Earl has given no answer to that question. We can establish no legal uncertainty whatever and the noble Earl has not given a single illustration of any problems in this sphere.
I have no passionate opposition to a provision of this kind. I merely asked why we need to have the clause at all as no justification for it appears to have been advanced by the noble Earl on the basis of uncertainty experienced by any police force in this country.
The point made by the noble Lord, Lord Boyd-Carpenter, was answered by the noble Earl. The Government have no intention of taking account of any
396
loan or grant of money and therefore the point which the noble Lord made did not seem to me to have a great deal of weight.
Lord Boyd-Carpenter: My Lords, the noble Lord has been good enough to refer to me, and perhaps I may reply to him. There is all the difference in the world between government policy which takes account or not of particular payments and specifically excluding that by statute. It was to the latter that I objected.
Lord Harris of Greenwich: My Lords, as there appears to be no problem it seems to me that the noble Lord is on to a thoroughly bad point. The noble Earl indicated that the Government have no intention of taking account of any loan or grant. Therefore, the noble Lord's anxieties appear to be without a shred of justification.
I should like to know—I am sure that the Minister will be glad to clear up the matter if he is now able to do so—whether there will be some form of affirmative or negative resolution procedure in connection with the codes of practice. That is my first point.
Secondly, I asked the Minister specifically whether performance-related pay would be dealt with in the code of practice. For the first time in the history of the British police service, performance-related pay is to be introduced. Will it be made absolutely clear in the code of practice that performance-related pay can in no way be linked to the success or otherwise of senior police officers in obtaining loans or grants from private citizens or commercial sponsors? That seems to me a reasonable question. The noble Earl has not answered it. I understand that he may not be in a position to do so today but I should be grateful if he could let me have an answer before Third Reading.
I believe that we are entitled to know in outline—not in detail—what will be in the code of practice. Also, the situation may arise in which one area of a police force is dealt with differently from other areas because a commercial sponsor offers a substantial sum of money for that particular area to have a more intensive degree of policing. When we last discussed the matter, the noble Earl said that that would be quite wrong as it would involve the prerogatives of the chief officer and his operational independence. I agree with him. But, again, will that be in the code of practice?
I believe that we are entitled to ask such questions, given the fact that the Government are asking for statutory authority for grants and loans to be made to police forces for the first time in our history. If the noble Earl would like to intervene, I shall be glad to give way to him. However, if he would prefer to deal with the matter subsequently in correspondence before Third Reading, I shall be most happy to meet him on that point.
4 p.m.
Earl Ferrers: My Lords, I am quite happy to meet the noble Lord, Lord Harris, on the matter; indeed, he mentioned several points. The noble Lord asked first whether the practice carried out at present is legal. I never said that it was not legal. The noble Lord then asked about the basis upon which the Government

397
should query the matter. All I can tell the noble Lord—and he knows this perfectly well—is that governments and departments do watch what is happening and take into account the state of the law. Although the noble Lord may think that everything is perfectly all right, my advisers say that there is an element of doubt. If there were an element of doubt (doubt which has never been challenged at all), by far the best thing to do is to use the Bill as a vehicle to remove it. That is the purpose of Clause 21.
The noble Lord says that he wants to make quite certain that people who give sponsorship to a police force should not have the advantage of knowing that that area will be the better policed because of it. That will not be the case, because policing is carried out over the whole area. It is up to the chief officer concerned to determine how such policing is done. The fact that someone may sponsor an effort or give a loan towards a display or whatever, will have nothing to do with the operational policing of any particular area in the chief constable's bailiwick.
The noble Lord, Lord Harris, then referred to performance-related pay. I can tell him that when we produce the regulations and the associated guidance about performance-related pay and fixed-term contracts, we shall bear the point in mind to ensure that a police force could not behave in that way. When the noble Lord referred to the other codes of practice which are being prepared, he answered the question in his opening speech by saying that he was sure that I would say that the codes of practice have not yet been drawn up. He is quite right. However, I can advance him one step further. I can tell him that they are in a considerable degree of progress in that advancement, but they are not yet ready.
As regards the point about the codes of practice being laid before Parliament, perhaps I may remind your Lordships that the proposed new Section 28A(2), at the top of page 9 in the Bill, says:
"A statutory instrument containing an order under this section shall be laid before Parliament after being made".
Moreover—
Lord Campbell of Alloway: My Lords—
Lord McIntosh of Haringey: My Lords, surely this is an intervention within an intervention. I do not think that that is acceptable on Report. The Minister was intervening in the speech of the noble Lord, Lord Harris of Greenwich. As I said, I do not believe that we can have an intervention in the noble Earl's speech.
Lord Campbell of Alloway: My Lords, very well, I shall ask my question later.
Earl Ferrers: My Lords, I believe that I have concluded my intervention.
Lord Campbell of Alloway: My Lords, the trouble is that a statutory instrument is not a code of practice. Therefore, the point made by my noble friend Lord Carr is totally valid and warrants a straight answer, at all events, before Third Reading.
Earl Ferrers: My Lords, I do so want to be helpful; that is, if I have the permission of the House—and by the look on the face of the noble Lord, Lord McIntosh, that permission may not be forthcoming for very much longer. The code of practice will be laid before the House. As I understand it, it will not be subject to an affirmative or negative resolution. However, it will be laid before the House for your Lordships and for Parliament to see.
Lord Harris of Greenwich: My Lords, we have had a short but immensely interesting debate on the point; indeed, it proved to be rather more protracted than I thought it would be at the outset. I am glad that the noble Earl responded to my anxieties on performance-related pay. I believe that is an issue of substance. As I understand it, that issue will be dealt with in the code of practice. I welcome that development. There must be no misunderstanding in the future as to what responsibilities can be attached to senior officers who, for the first time, will have performance-related pay and fixed-term contracts. Therefore, as I said, there should be no conceivable misunderstanding on that point.
I do not propose to press the noble Earl on the matter, but if he could take it a little further between now and Third Reading as regards the general outlines of the code of practice mentioned by those who intervened in the debate, that would be most helpful. There is a possibility of considerable misunderstanding about the clause. That being so, it seems to me to be desirable to put such possible misunderstandings on one side as quickly as possible. I repeat, if we could have a letter between now and Third Reading it would be most helpful. I am sure that the noble Lord, Lord Carr, would appreciate it, as indeed would other noble Lords who have spoken. I had no intention of pressing the amendment to a Division. I merely tabled it for the purpose of clarification. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Approval of decisions about precepts]:
Earl Ferrers Earl Ferrers moved Amendment No. 120:
Page 15, leave out lines 38 and 39 and insert:
("(b) include more than half of the members (at that time) appointed under paragraph 1 of Schedule 1B to the 1964 Act (local authority appointees).").
The noble Earl said: My Lords, the above amendment was spoken to when I dealt with Amendment No. 2. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 121:
After Clause 38, insert the following new clause:
("Discharge of police authority functions by local authorities
After subsection 1(7) of the Local Authorities (Goods and Services) Act 1970 there shall be inserted—
"( ) A police authority established under section 3 of the Police Act 1964 may arrange for the discharge of any of their functions by an officer of a local authority which provides it with any administrative, professional or technical services under paragraph (b) of subsection (1) above, and any such officer may be designated as the head of their paid service under section 4 of the Local Government and Housing Act 1989".").
The noble Lord said: My Lords, the proposed new clause appears to us to be necessary because there is some doubt about the powers which existing police authorities will have if the Bill is enacted as drafted. At present, police authorities exercise a wide range of functions which are separate from those of a chief constable. For example, they are responsible for the budget, they have an obligation to consult the public and they have a requirement to maintain an efficient and effective force. It has been the universal practice that, in doing so, they should not so much employ people full time, because that is not necessarily justified by the tasks required, but that they should have the ability to make use of the administrative, professional or technical services which may be available in local authority service in the area of their jurisdiction.
When a police authority is a special committee of a county council, the latter is very easy to arrange. However, that will no longer be the case because police authorities will be enlarged and will no longer have the same relationships with local authorities. However, the issue itself does not go away simply because of a change in the constitution and formal existence of a police authority. There arc plenty of examples where it is most economical to have someone who works for a local authority giving part of his time—perhaps even a limited part of his time—to the police authority. For example, the deputy personnel manager of Salford City Council is engaged for 20 per cent. of his time in work for the Greater Manchester Police Authority. Moreover, the Leicestershire police authority has as its clerk the county secretary of Leicestershire County Council, who gives 10 per cent. of his
The reason for tabling the amendment is that, although I am sure it is the intention of government that that situation should continue, it does not appear in the Bill as we read it that that is in fact the case. We want to be assured that a police authority will be able to appoint a clerk or a head of paid service or anyone else it thinks necessary for the discharge of its distinct functions and not the functions which come under the control of the chief constable. We want to be sure that the Bill is clear on that point and that there will be no hiatus. In other words, we want to be sure there will be no British Transport Police-type situation when this Bill has been passed. I beg to move.
Earl Ferrers: My Lords, one of the consequences of the Bill will be that police authorities in future will not be an integral part of local government as they are now. Each police authority will be a freestanding body in its own right. This has, on the whole, been widely welcomed, not least by many police forces. There will, of course, still be important links between police authorities and local government. The majority of the members of each police authority will be local councillors, and a significant proportion of police authority funding will come from local council tax payers.
Most police authorities at present rely on local government for many of their administrative and support services. The Bill will now give the police authorities the freedom to purchase these services from
400
wherever they think fit. They will have to decide what is in the best interests of efficiency and effectiveness. I expect that that will mean making their own in-house arrangement for some things and going to the private sector suppliers for other things. I expect that they may well wish also to continue to purchase services from local authorities. The choice will be theirs, and the Bill allows them that freedom of choice. Paragraph 5 of Schedule 4 amends the Local Authorities (Goods and Services) Act 1970 to ensure that local authorities are able to supply goods and services to police authorities. Clause 7 also amends that Act to ensure that the reverse applies and that police authorities may provide services to local authorities.
Paragraph 11 of Schedule 4 also ensures, amongst other things, that Section 113 of the Local Government Act 1972 applies to police authorities. This allows one local authority to put its staff at the disposal of another. The amendment to Section 113 made by the Bill will allow a local authority to put its staff at the disposal of a police authority, and vice versa. This will include staff at any level. It is common for the chief executive and treasurer of a county council respectively to act also as the clerk and treasurer to the relevant police authority. If it were to be the wish of the police authority, it will be possible for such an arrangement to continue. Police authorities will have an obligation under Section 4 of the Local Government and Housing Act 1989 to appoint a person as head of their paid service.
They will also have an obligation under Section 112 of the Local Government Finance Act 1988 to appoint a person who would be responsible for the proper administration of their financial affairs. There is no obstacle in the Bill to an officer of a local authority being appointed by a police authority to act in either of these capacities if the respective authorities agree. The noble Lord, Lord McIntosh, is therefore right to have raised these issues. They are important for the future administration of police authorities. I hope that I have been able to address his concerns.
Lord McIntosh of Haringey: My Lords, that sounds on the face of it an eminently satisfactory answer arid I am grateful to the Minister for giving it. As I understand it, the powers which are given in Clause 7 reciprocate the powers which are given in a number of different paragraphs in Schedule 4. The fears that I raised in moving this amendment are unjustified. If I am wrong in any respect, and clearly this is a complex matter, I might have to return to this issue at a later stage but I do not anticipate that that will be the case. I repeat I am grateful to the Minister for that answer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Police: minor and consequential amendments]:
4.15 p.m.
Earl Ferrers Earl Ferrers moved Amendment No. 122:
Page 62, line 28, at end insert:
("( ) After subsection (1) there shall be inserted—
"(1A) A chief constable shall arrange for a report submitted by him under subsection (1) of this section to be published in such manner as he thinks fit"")
The noble Earl said: My Lords, in moving Amendment No. 122, I wish to speak also to Amendments Nos. 123, 124 and 125. These amendments deal with the annual reports which chief constables make to their police authorities. Amendment No. 68 was approved on Tuesday and these amendments are consequential. I beg to move.
On Question, amendment agreed to.
Earl Ferrers Earl Ferrers moved Amendments Nos. 123, 124 and 125:
Page 62, line 35, after ("under") insert ("subsection (2) of").
Page 62, leave out lines 37 to 39.
Page 63, leave out line 26 and insert:
("(3) In subsection (2) for the words "calendar year" there shall be substituted the words "financial year".").
On Question, amendments agreed to.
[Amendments Nos. 126 and 127 not moved.]
Clause 41 [Constitution of police force]:
The Minister of State, Scottish Office (Lord Fraser of Carmyllie)The Minister of State, Scottish Office (Lord Fraser of Carmyllie) moved Amendment No. 128:
Page 21, line 7, leave out from ("means") to end of line 13 and insert:
("constables (including probationary constables) to whom both pay and allowances are, by virtue of section 26 of this Act, payable; and
"special constables" means constables to whom allowances only are so payable.").
The noble and learned Lord said: My Lords, during the debate in Committee I agreed to accept the amendment to this clause tabled by my noble friend Lord Campbell of Alloway and the noble Lord, Lord Mackie of Benshie.
In accepting their amendment we were content to remove from the clause as originally drafted the power for the Secretary of State to prescribe other classes of constable in addition to regular and special constables. I was glad to allay fears among the police that the Government were seeking to introduce a wholly new class of police officers.
The noble Lords' amendment set out new definitions of regular and special constables. On closer examination, however, these definitions do not appear to be entirely satisfactory. I am sure the House will agree that statutory definitions of constables are important and that we should get them absolutely right. I should emphasise to the House that I mean no disrespect to my noble friend or indeed to the noble Lord, Lord Mackie, and I have written to both of them to explain our further amendment.
The clause as amended in Committee describes special constables as unpaid. This is not entirely apt, as special constables are paid allowances. I am sure the House would not wish inadvertently to prevent those who give up their time and act as special constables from receiving their well-deserved allowances.
One of the reasons for amending Section 3 of the Police (Scotland) Act in the first place was to remove any obstacles in its drafting to the introduction of part-time working and job sharing for regular constables in Scotland. But all we need to do is to remove the obstacle in the existing definition. We do not need to provide specifically in the Act for part-time working. That will be done by regulations under Section 26.
402
To avoid creating future obstacles to changing patterns of work in the police I believe it would be prudent to remove altogether references to full-time and part-time working and also the reference to joint appointment. The key distinction between regular constables and special constables is that regulars receive pay, as well as allowances, whereas specials receive only allowances.
I am grateful to those who first raised this matter but I hope they will appreciate that this further amendment is intended to further the objective that they had originally in mind. I beg to move.
Lord Campbell of Alloway: My Lords, I am grateful to my noble and learned friend. He has done a fine job on this and has knocked our amendment into far better shape. I am grateful for all the trouble he has taken.
Lord Mackie of Benshie: My Lords, I too am grateful.
On Question, amendment agreed to.
Lord Mackie of Benshie Lord Mackie of Benshie moved Amendment No. 129:
Page 21, line 14, after ("ranks)") insert:
("(a) in subsection (1) for the words "and superintendent" there shall be substituted the words "superintendent, chief inspector, inspector and sergeant"; and
(b)").
The noble Lord said: My Lords, I will not detain the House for long but I want to give the noble and learned Lord, Lord Fraser, a chance to explain once more why an assistant chief constable is better than a deputy chief constable and why we need to abolish a number of ranks which are considered necessary in large police forces in order to accommodate small police forces which may not need that number of ranks. I have so far failed to understand this matter. I beg to move.
Lord McIntosh of Haringey: My Lords, I have no wish to stifle debate but this amendment was debated with the comparable amendments relating to England at considerable length on Tuesday. Noble Lords from Scotland took an active part in that debate and therefore I think it is inappropriate that we should be covering the same matter again.
Lord Campbell of Alloway: My Lords, I beg to disagree with the noble Lord who has just spoken. There is an issue on this which was not discussed and was not debated and which refers to Scotland.
Lord McIntosh of Haringey: My Lords, I thank the noble Lord for permitting me to intervene. The opportunity existed for the matter to be debated. It is not the fault of anyone who took part in the debate that some point was missed. We are not recommitting this matter for further debate. We shall never make progress unless we proceed in an orderly way.
Lord Campbell of Alloway: My Lords, I am proceeding in an orderly way. I propose to continue unless I am asked to give way again by any noble Lord, in which case I shall do so at once. It is accepted that Clause 5 stands unamended. It is accepted that there must be parity as between England and Wales and Scotland as regards ranks and the reduction in the

403
number of ranks. If the noble Lord, Lord McIntosh, is interested, what I am trying to explain is relevant to his objection.
The disparity lies on the face of the Bill. In Clause 1 there is a reduction of one rank for England and Wales and in Clauses 41 and 42 there is a reduction of three ranks for Scotland. We are seeking clarification as to how that disparity may be dealt with in practice in order to achieve the same rank structure for England and Scotland.
We have had fruitful discussions on this subject with my noble and learned friend Lord Fraser. The noble Lord, Lord McIntosh, was not able to attend. As a result of those discussions my noble and learned friend took the point and said that it would be helpful and proper if we were to move a probing amendment for clarification as to how that is to be done. The noble Lord, Lord Mackie, has moved such an amendment. That is a perfectly proper exercise. It has been accepted by the Government Whips as a proper exercise for debate. Although I am used to criticism I do not like uninformed or unfair criticism.
Lord Fraser of Carmyllie: My Lords, as the noble Lord, Lord McIntosh, pointed out, we debated exhaustively the position regarding the rank structure in England and Wales. It was clearly accepted at the time that any of the arguments then deployed in favour of or against retention of the existing number of ranks applied with equal force on either side of the Border. I suspect there is unanimity of view—the view has certainly been expressed to me by the police associations in Scotland —that whatever the appropriate number of ranks within the police may be, the same number should obtain on both sides of the Border. Otherwise, significant difficulties would emerge in terms of training and operational matters. In addition, there are frequently movements of police officers across the Border from a Scottish force to an English force and vice versa.
I do not propose to rehearse the arguments again, and I do not believe that my noble friend Lord Campbell of Alloway wishes me to do so. What I understand continues to concern him—and he has raised it with me—is that it appears from the Bill that the way in which the changes are achieved is somewhat different. He is absolutely right. The changes to primary legislation required to implement the new rank structure are not exactly the same for Scotland as they are for England and Wales. In particular, as he understands, the Scottish primary legislation specifically mentions the rank of chief superintendent while the English legislation does not.
Perhaps I may take this opportunity to confirm to my noble friend and to place on the record that while the routes to achieving a change in the number of ranks in Scotland and England and Wales are different, the result will be exactly the same. Whatever differences of view there may be about the desirability of a certain number of ranks and the retention of some of them, as the Bill is drafted we shall achieve exactly the same rank structure on either side of the Border.
404
With that explanation, which I know the Scottish police associations wanted, I hope that the amendment can be withdrawn.
Lord Mackie of Benshie: My Lords, I thank the Minister for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Deputy and assistant chief constables]:
[Amendment No. 130 not moved.]
Clause 45 [Conduct and efficiency of police officers]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.131:
Page 23, line 2, leave out ("and the maintenance of discipline").
The noble and learned Lord said: My Lords, your Lordships will note that the amendment, which removes the reference in Clause 45 to the maintenance of discipline, applies to Scotland only although a similar clause applies to England and Wales. Perhaps I may offer the House an explanation for the change being offered for Scotland alone.
As your Lordships are well aware, the express intention of Clause 45 is, first, to introduce a means of dealing with the inefficient police officer, and, secondly, to replace the regime whereby an officer is called to answer for his conduct, even in respect of fairly minor matters., before the full panoply of a disciplinary hearing. That has been changed in favour of a more graduated system of hearings appropriate to the seriousness of the conduct in question. As part of that change we intend to focus on conduct rather than discipline and to introduce procedures which are more appropriate to that shift and move away from the present approach which bears a marked similarity to a court martial. However, despite that stated intention, the Bill still contains a reference to discipline. The reference to discipline in the English provisions is required to tie in with other provisions of the Police and Criminal Evidence Act 1984, particularly those relating to the Police Complaints Authority. No such connection is necessary for Scotland, where PACE does not apply.
Despite the superficial appeal of identical provisions on either side of the Border, it is clear that the statutory context is quite different. Accordingly, since it is not necessary to keep for Scotland a reference to discipline it seems sensible to remove it. I hope that with that explanation your Lordships will accept the amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.132:
Page 23, line 5, after ("(2A)") insert ("Without prejudice to the powers conferred by this section,").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 102 I also spoke to Amendments Nos. 132 and 133. I beg to move.
On Question, amendment agreed to.
Lord Mackie of Benshie had given notice of his intention to Lord Mackie of Benshie had given notice of his intention to move Amendment No. 133:
Page 23, line 9, leave out ("or caution") and insert ("caution or warning").
Lord Campbell of Alloway: My Lords, perhaps I may raise a point. It was my intention to do so on Amendment No. 133.
Lord Fraser of Carmyllie: My Lords, I indicated incorrectly that I intended to move Amendment No. 133. I should have said that I spoke to it when speaking to Amendment No. 102. I apologise. I was seeking only to move Amendment No. 132.
Lord Campbell of Alloway: My Lords, I shall move the amendment if the noble Lord, Lord Mackie, does not.
Lord Mackie of Benshie: My Lords, it is my amendment, and I do not wish to move it.
[Amendment No. 133 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.134:
Page 23, line 22, at end insert:
("(2C) Without prejudice to the generality of subsection (2A) (a) above, regulations under this section shall specify the circumstances in which, for the purposes of section 40A(2) of this Act, proceedings by virtue of that subsection are to be taken to have commenced.").
The noble and learned Lord said: My Lords, Clause 53 relating to the handling of complaints against constables empowers the inspectors of constabularies to direct a chief constable to reconsider the handling of a complaint in certain circumstances and seeks to prescribe in the proposed new provision where that power may be exercised.
One area where we do not consider it appropriate for the inspectors to direct a reconsideration is where the constable against whom a complaint has been made has already been the subject of misconduct hearings. In such cases, the constable has already been dealt with and it would clearly be unfair for him to be made subject to a further hearing.
Therefore, to make the operation of Clause 53 clear and to ensure fair treatment for the officer involved, it is necessary to be able to define when the misconduct proceedings are to be taken to have commenced. The amendment to Clause 45 achieves that. I beg to move.
On Question, amendment agreed to.
4.30 p.m.
Clause 46 [Fixed term appointments etc.]:
Lord Mackie of Benshie: My Lords, I shall not move Amendment No. 135.
The Deputy Speaker (Baroness Serota): My Lords, Amendment No. 135 is not moved.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No.135
Page 23, line 30, leave out from ("where") to end of line 31 and insert:
("(a) the person appointed holds the rank of assistant chief constable or higher rank; and
(b) the terms of the appointment include adequate provision for—

(i) the renewal of the appointment at the same or a higher rank at the end of the fixed term (subject to the efficient performance by the person of his duties during the term); and

(ii)the payment of compensation in cases where the appointment is not so renewed.").

The Deputy Speaker: My Lords, amendment proposed: page 23, line 30, leave out from ("where") to end of line 31 and insert the words as printed on the Marshalled List.
Lord Campbell of Alloway: My Lords, I move the amendment under the procedural rule that allows one to do so if an amendment is not moved by any other noble Lord. The amendment is concerned with fixed term contracts and reflects an amendment moved in Committee by the noble Lord, Lord Harris of Greenwich, and withdrawn for further consideration on Report.
The matter was considered on Report on Tuesday 15th March under Amendment No. 69 at cols. 156 to 168 of Hansard. The amendment was withdrawn but certain concessions were made by my noble friend Lord Ferrers on the safeguards and compensation provisions, both referred to at col. 165. The suggestion was made that the Government did not intend to extend fixed term appointments to superintending ranks and the clause in the Bill cannot be used for officers below superintending ranks. If so, what is the purpose either of Clause 14, dealing with the sister provision, or the provisions the subject of this amendment? In the circumstances, this is a probing amendment. I shall be interested to know what my noble and learned friend has to say about Clause 46. I beg to move.
Lord McIntosh of Haringey: My Lords, the Question has been put.
The Deputy Speaker: My Lords, amendment proposed: page 23, line 30, leave out from ("where") to end of line 31 and insert the words as printed on the Marshalled List.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Campbell of Alloway, is perfectly in order in doing what he has just done. However, I wish to make two points to him. First, Amendment No. 135 was debated by general agreement with no dissent earlier in this Report stage in conjunction with the comparable amendment for England. Secondly, although, of course, it is in order for any noble Lord to move any amendment, which is the property of the House once it has been put on the Marshalled List, I ask the noble Lord, Lord Campbell, to consider the potential for disruption of the business of the House. Perhaps I should not say that from this Dispatch Box; maybe it is for the Government to say it. However, there is great potential for disruption of the business of the House if noble Lords exercise too freely their right to move any amendment, even though the mover of the amendment does not wish it to be moved.
It is not for the Opposition to say this, but, apart from anything else, there is no guarantee that officials will be available to advise the Minister concerned if an amendment is moved. Think what we could do as an Opposition if we agreed on groupings and then proceeded to ungroup and move any amendment at a later stage whether or not it was ours. The result in terms of business could be chaotic.
Baroness Carnegy of Lour: My Lords, I agree with the noble Lord, Lord McIntosh, and wish to say to my noble friend Lord Campbell that those Peers who are based in Scotland were extremely glad to have a joint group of amendments discussed on these matters because we knew that our police wanted the same arrangements as the English police. We did not wish to get into a position where we were being divisive on the issue. So we deliberately accepted the arrangement. We welcomed it. I asked for it on another amendment and was glad that that was what happened. Thus, it was a satisfactory arrangement and I am sorry that, on the grounds of Scotland being different, the noble Lord has raised the point.
Lady Saltoun of Abernethy: My Lords, before the noble and learned Lord replies, the noble Earl, Lord Ferrers, sent a letter concerning Amendment No. 69, the sister amendment to Amendment No. 135, to the noble Lord, Lord Harris of Greenwich, and, I believe, to the noble Baroness, Lady Hilton of Eggardon. Would it be possible for us to have copies of that letter?
Lord Mackie of Benshie: My Lords, the noble Lord, Lord Campbell, has a perfect right to move the amendment. I was right not to move it because I had heard all the arguments. But the noble Lord may well have another point. So let us get on with it.
Lord Fraser of Carmyllie: My Lords, during the earlier part of the Report stage we had an extensive debate on this matter. My understanding was that on all sides, whatever views there were on the desirability of the arrangements, again, if they were to be introduced for England and Wales it was appropriate that they should be similarly implemented in Scotland. If they were not, then the opposite applied.
I believe just one matter needed to be clarified and perhaps I may take the opportunity to do so briefly. There was some anxiety that, with regard to the rank of superintendent and fixed term appointments for them, as a matter of practice in Scotland we might set off down a different route or adopt a different timetable. Perhaps I may confirm again, if it is necessary, that we have no intention whatever of departing from what was said by my noble friend Lord Ferrers with regard to the use of such appointments south of the Border and the intention that we should not immediately introduce them for superintendents.
As regards the letter to which reference has been made, I believe I am correct in saying that the noble Lord, Lord Mackie, received a copy, but I am prepared to ensure that anyone else who wishes to have a copy receives it. The letter contains information which would be equally applicable to Scotland as to England and Wales.
Lord Campbell of Alloway: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 48 [Appeals against dismissal etc.]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 136:
408
Page 24, line 25, leave out from ("dismissed") to ("by") in line 26 and insert (", required to resign or reduced in rank").
The noble and learned Lord said: My Lords, in moving Amendment No. 105 and a number of other amendments, my noble friend Lord Ferrers also spoke to Amendments Nos. 136 to 138. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 137 and 138:
Page 24, line 32, leave out from ("dismissed") to end of line and insert (", required to resign or reduced in rank").
Page 24, line 35, leave out from ("order") to end of line 37 and insert ("dealing with the appellant in a way—

(a)which appears to the tribunal to be less severe than the way in which he was dealt with by the decision appealed against; and

(b)in which he could have been dealt with by the person who made that decision.").

On Question, amendments agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 139:
Page 25, line 2, at end insert:
("(6) Rules made under this section may make such supplementary and transitional provision as the Secretary of State thinks necessary or expedient in consequence of the coming into operation of an amalgamation scheme, amending scheme or revoking scheme while an appeal under this section is pending; and without prejudice to the generality of this subsection, such provision may in particular include modifications to Schedule 3 to this Act in that Schedule's application to any case affected by the making of such a scheme.").
The noble and learned Lord said: My Lords, this amendment ensures that arrangements will be made to allow the proper completion of appeals, even where the force concerned is affected by the coming into operation of an amalgamation, amending or revoking scheme. Similar provision in relation to the existing appeals mechanism can at present be found in the Police (Scotland) Act 1967. I beg to move.
On Question, amendment agreed to.
Schedule 6 [Schedule to be inserted in Police (Scotland) Act 1967: appeals tribunals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos.140 to 142:
Page 69, line 7, leave out from ("appealed") to end of line 8 and insert ("against, and as from the date of that decision or, where that decision was itself a decision on appeal, the date of the original decision appealed against.").
Page 69, line 10, after ("force") insert ("or in his rank").
Page 69, line 12, after ("force") insert ("or in that rank").
The noble and learned Lord said: My Lords, when Amendment No. 105 was moved by my noble friend Lord Ferrers, he spoke also to Amendments Nos. 140, 141 and 142. I beg to move.
On Question, amendments agreed to.
Clause 52 [Common services]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendments Nos. 143 to 147:
Page 25, line 30, after ("consulting") insert ("the Joint Central Committee and").
Page 25, line 32, after ("superintendents") insert ("(such consultation being in the following provisions of this section referred to as "relevant consultation")").
Page 25, line 37, after ("may") insert (", after relevant consultation,").
Page 26, line 1, after ("may") insert (", after relevant consultation,").

409
Page 26, line 14, leave out ("consulting such bodies or associations as appear to him to be representative of police authorities") and insert ("relevant consultation").
The noble and learned Lord said: My Lords, I undertook during the Committee stage of this Bill to bring forward amendments which would require my right honourable friend to consult with representatives of police authorities and the three police associations in Scotland prior to using any of his powers under this clause. The noble Lord, Lord McIntosh, had sought to have that requirement inserted in the Bill and these amendments meet the intention of his proposals. With these amendments my right honourable friend would be required to consult on any proposal to provide common police services, to require all police authorities to use them or to make provision for charging for such services. I beg to move.
On Question, amendments agreed to.
Clause 53 [Examination of handling of complaints against constables]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 148:
Page 26, line 36, leave out ("—(a)").
The noble and learned Lord said: My Lords, as I have explained, the purpose of this clause is to empower Her Majesty's Inspectors of Constabulary to examine the way police forces in Scotland deal with complaints where the complainer expresses dissatisfaction with the original handling of the case. Where necessary, the clause also empowers inspectors to direct the chief constable of the force concerned to reconsider the complaint.
I am sure that noble Lords will also recall that the reason for these measures is to ensure a degree of independent scrutiny of how a complaint has been dealt with for the purposes of assessing whether the officers involved have acted within the requirements of police conduct.
I stress that point because complaints which suggest criminal behaviour are already independently scrutinised by the Procurator Fiscal. That is as it should be and that procedure is totally unaffected by the responsibilities being invested by this clause in Her Majesty's Inspectorate of Constabulary. Our intention remains that Her Majesty's Inspectorate of Constabulary should not be able to scrutinise the actings of the Fiscal in his independent capacity. But it is now clear that we do not need any specific provision to achieve that, so the reference to "criminal charges" can be deleted.
However, the same incident can, of course, be investigated with a view to criminal proceedings and police misconduct proceedings. Each such investigation will be quite separate with quite different purposes. An unintended consequence of the reference to criminal charges in line 39 is that it would have excluded from Her Majesty's inspectors' purview any case that had been sent to the Fiscal. That is plainly wrong. The police need to consider issues of discipline at present when a case is returned from the Fiscal, even where the decision
410
is that of "no proceedings". That consideration by the police should be open to the inspector's scrutiny, and that is what these amendments achieve.
In short, Her Majesty's inspector should be able to look at the way the police themselves have handled a complaint regardless of whether the subject matter of that complaint has given rise to criminal proceedings. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.149
Page 26, line 38, leave out ("; or
(b) of criminal charges against the constable").
On Question, amendment agreed to.
4.45 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No.149
Page 26, line 46, leave out ("to that constable and to that person") and insert (", who shall—

(a)report the outcome, and their own findings as regards the outcome, to that constable and to that person; and

(b)communicate those findings to the chief constable").

The noble and learned Lord said: My Lords, the purpose of this amendment and Amendment No. 151, which are entirely in keeping with the spirit of this clause, is to ensure that, where Her Majesty's Inspectorate of Constabulary directs a chief constable to reconsider the way a complaint was handled, it can, as part of its statutory functions, comment on the outcome of that consideration. The second of these amendments is to enable the Secretary of State and the police authority to have those comments.
During the lengthy discussion of the clause at Committee stage I hope that I was able to assure noble Lords that its purpose is to inject a justifiable degree of independent scrutiny into the way in which the police handle complaints.
As I pointed out then, that independent scrutiny already exists for complaints where there is a suggestion of criminal behaviour, for those are instantly referred to the Procurator Fiscal. However, it is surely right that a similar overview should be available to ensure that cases have also been assessed properly against the standards set for police conduct. If we accept that principle, then clearly it is sensible to ensure that whoever undertakes that task should be able to discharge it fully, and that is what the provisions in this clause seek to do.
The other task given to HMIC by this clause is that it must submit to the Secretary of State and the relevant police authority, if requested to do so, the report on its examination of a case. However, for completeness we feel that HMIC should be able to comment on the outcome of a reconsideration which it required to be undertaken in the first place and that these comments should be made available to interested parties, including the chief constable, and to the Secretary of State and relevant police authority if so required. It is to achieve this objective that these amendments are required. I am sure that noble Lords will see that they complement the measures already proposed and provide a well rounded package of responsibilities for HMIC. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 151:
Page 27, line 7, at end insert:
(" and a copy of any report under subsection (3) (a) above consequent on that examination").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 150, I also spoke to Amendment No. 151. I beg to move.
On Question, amendment agreed to.
Clause 60 [Alteration of magistrates' courts committee areas]:
Lord Mottistone Lord Mottistone moved Amendment No. 152:
Page 30, line 20, at beginning insert ("Subject to the provisions of subsection (3A) below,").
The noble Lord said: My Lords, Amendment No. 152 is a paving amendment to Amendment No. 153. In Committee I had tabled similar amendments, but in the light of what was said then I have altered them slightly.
What I said in col. 518 of the earlier debate still very much stands. In Committee other amendments were grouped with mine. It is those which my noble and learned friend more specifically addressed in replying. I did not appreciate it at the time, but he does not seem to have made any mention of my proposal that, before considering an amalgamation, the Lord Chancellor should await a recommendation to that effect from his newly created inspectorate, and then satisfy himself that such a recommendation would make the improvement that he seeks to the effectiveness of the magistrates' courts committees concerned.
It seems to me that the inspectorate could be most useful in that respect. That will especially be so if the inspectorate is so formed as to gain the confidence of those whom it inspects. In the same way, in my opinion, the local government commission gains confidence locally by examining the needs on the ground of whatever bodies it studies. I hope that the inspectorate will do the same—indeed, I am sure that it will—and that it will thus achieve the confidence, both locally in the county and with the Lord Chancellor personally, that undoubtedly it should have. The purpose of this amendment is to make sure that the possible contribution of the inspectorate is fully used in this respect. I therefore hope that my noble and learned friend will be encouraging about my Amendment No. 153. I beg to move.
Viscount Tenby: My Lords, perhaps I may just say a few brief words to Amendments Nos. 152 and 153 in the name of the noble Lord, Lord Mottistone. I believe that in Committee the noble and learned Lord the Lord Chancellor pointed out that, left to themselves, magistrates would be unlikely to take action to instigate mergers. There is of course some truth in that. However, he has set himself the task of reducing the number of MCCs overall, and there must therefore be more encouragement to MCCs to look ahead and think constructively in that regard.
If the inspectorate is to play—as we all hope it will—a major role in increasing overall the efficiency of the service, I do not see, as the first part of the amendment suggests, why it should not be a major contributor to the decision as to whether areas should be amalgamated.
412
We know that in the matter of default its report will be the principal contributory factor. I cannot see why it cannot also be used in a corresponding but more constructive role. I am sure that the noble and learned Lord the Lord Chancellor would agree that: amalgamation should never be entered into lightly, because it inevitably threatens the local nature of the magistracy, a preoccupation which is always on the minds not only of magistrates but also their clients, if I may so describe them.
It should be based, as the second part of Amendment No. 153 makes clear, on quantifiable and significant improvements in performance and could be usefully accompanied by a detailed business plan outlining the benefits to be gained from such a course of action, a suggestion to which I have already referred in Committee. As the noble and learned Lord acknowledged in Committee, partial co-operation between MCC areas in matters such as training or the use of business systems is already widespread. I respectfully suggest that active encouragement in that kind of shared activity will provide a relatively painless way of starting to meet the noble and learned Lord's objectives. It is a view which, indeed, he shares.
However, it is a delicate balancing act involving, as it does in some cases, a threat to jealously guarded independence among those who for the most part will not readily accept that their past record justifies such a course of action. I accordingly recommend caution even at the risk of sacrificing the need for speedy rationalisation of the service.
Baroness Macleod of Borve: My Lords, as a former magistrate, perhaps I may briefly intervene. First, I should like to thank my noble and learned friend very much and very sincerely indeed for all that he has done for the Bill. It is a very difficult Bill. It repeats itself more often than perhaps would be thought possible, but I hope that it has not given him too many sleepless nights. I for one am enormously grateful for all that he has done.
It seems to me that one of the main advantages of the existence of Her Majesty's magistrates courts' service inspectorate could be to report directly to the noble and learned Lord on its findings. Those findings would relate not only to the conduct of the courts. In the course of its duties, it might find that it should advise the noble and learned Lord and his department on the amalgamation of some of the courts—the amendment speaks of more than two.
I wonder whether in Clause 60(4) (c) "every interested authority" covers the inspectorate. If it does, perhaps the amendment is unnecessary. I, like other noble Lords, will be guided by the views of my noble and learned friend.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I am very grateful to my noble friend Lady Macleod for her very kind thoughts on my ability to sleep. I appreciate it very much. I understand fully what my noble friend Lord Mottistone and the noble Viscount, Lord Tenby, said. As I said on the last occasion, I am interested in seeking to promote agreement to moves of this kind so far as possible. I

413
endorse the noble Viscount's comments about trying to build on existing arrangements for co-operation. It is out of those arrangements that the best amalgamations might come, if amalgamation is a good thing in the particular circumstances. I do not wish people to think that just because they co-operate, they may necessarily be followed up, as it were, with an amalgamation proposal. But it is often out of that kind of co-operation that amalgamation best comes.
There are two branches to the second amendment tabled in the names of the noble Lord, Lord Mottistone and the noble Viscount, Lord Tenby. I should like to address them separately. First, with regard to the inspectorate, your Lordships would expect me to take the view of the chief inspector on this point. I have done so in regard to the first part of the amendment. I quote directly the advice that she tended to me:
"I do not think this is an appropriate role for the Inspectorate. Questions of amalgamation rest essentially on policy decisions about the structure of the Service as a whole which should remain the responsibility of Ministers. Furthermore, to involve the Inspectorate suggests that one or more of the committees has 'failed' in some way … Moreover, if the Inspectorate undertakes this role, it runs the risk of being seen either as the tool of the Department, or as susceptible to lobbies from the Service. Both views undermine the capacity of the Inspectorate to perform its core functions of inspecting the Service, and reporting our findings to you".
I have taken that as an expression of opinion of somebody who wishes to stand at a distance from both myself and the committees, but with a great interest in how they are operating. I endorse that approach. A distinction is properly drawn between the inspectorate commenting in the course of its programme of inspections on proposed amalgamations and it having a statutory obligation to consider the case for them and to make recommendations.
I turn to the second part of the amendment, paragraph (b). That would constrain me from making an order for amalgamation unless satisfied that such a change was in the interests of all the magistrates' courts concerned.
The phrase used is:
"significant improvements in the administration of all the magistrates' courts concerned".
I say at once that I have no difficulty with the broad principle that underlies that provision. I would wish only to initiate an amalgamation if I thought that it would produce benefits. The difficulty lies in just how to express the provision. For example, in this case the amendment speaks of:
"all the magistrates' courts concerned".
One might have an almost perfect committee, yet it would be in the interests of the service and the area as a whole for a neighbouring committee to be amalgamated with it because improvements would perhaps arise for the administration of the neighbouring committee. There might be other advantages as well. It is therefore quite hard to lay down a test that applies to all the magistrates' courts concerned.
I hope that my noble friend and the noble Viscount will be happy with that broad approach to the principle of paragraph (b) of the amendment and that they will feel able to withdraw the amendment on the basis that I shall give further consideration to this matter. I have no intention of initiating any change unless it appears to be
414
in the best interests of the service as a whole. Some general wording of that kind might meet the principle that my noble friend has proposed, without giving rise to the difficulties to which I have drawn attention.
5 p.m.
Lord Mottistone: My Lords, I should like to thank my noble and learned friend very much for taking such care with the amendment. He understands the kinds of matters that are of concern not only in my part of the world but in those mentioned by the noble Lord, Lord Wigoder, in an earlier debate.
The noble and learned Lord has kindly undertaken to consider further paragraph (b) of the amendment. I accept entirely that, having sought the advice of the head of the inspectorate, he received the reply that it would be inappropriate at this stage to press paragraph (a) of the amendment. The inspectorate is very new and so are these issues and in time it may be a little less cautious in matters of this kind. There is great hope for it. From my experience, inspectorates can do nothing but good provided that they have the confidence of those who appoint them and those who are inspected. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 153 not moved.]
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No.154:
Page 31, line 9, at end insert:
("( ) In relation to the existing magistrates' Courts Committees for Outer London Boroughs the Lord Chancellor shall only have power to make an order under subsection (3) above, other than an order which implements proposals submitted to him under subsection (1) above, after a period of not less than five years has elapsed from the commencement of this section.").
The noble Lord said: My Lords, from the moment of the issue of the White Paper A New Framework for Local Justice, the Outer London magistrates' courts committees have sought to persuade my noble and learned friend that because they were all very substantially reorganised seven years ago on the abolition of the GLC it would not be appropriate to do so again. In reinforcing that plea, I should like to quote from the speech of the then Minister, my noble friend Lord Glenarthur, who was Under-Secretary of State at the Home Office, in a parliamentary debate for which neither the Library nor I can find the reference. However, it exists and I hope that Hansard will be able to find it.
"Our proposals will remove, apart from anything else, a tier of bureaucracy from the administration of the magistrates' courts service. They will enable decisions to be made by those people who have personal knowledge of a court, its workings and its locality".
My noble friend was talking about Outer London:
"We have not based our arguments for the new arrangements on achieving savings; on the other hand, we certainly do not envisage that costs will rise. If an element of the responsibilities of the magistrates' courts committees, such as training, would benefit from a broader administration, there is nothing to prevent the committees co-operating and sharing the costs, and we would be as keen as anybody to encourage such arrangements".
Experience in Outer London between 1974 and 1986, when there was a centralised administrative system, was that bureaucracy burgeoned out of all control both financially and administratively. However, following that debate the Government abolished the four

415
ever-expanding magistrates' courts committee secretariats which had grown from one-man bands in 1974 to overstaffed, chief executive-led structures by 1986. They were replaced by local borough-based courts committees and local clerks to the committees.
Noble Lords will understand that when the proposal came forward in the White Paper, the magistrates' courts committees once again faced being amalgamated into three substantial area courts committees, each embracing several of the London boroughs, and there was considerable dismay.
No one disputes that the present system is working extremely well. It is doing more than working well: under the single borough administration, the magistrates' courts committees brought forward all kinds of innovations and improvements in the service. They can take credit for a service which has served the people in the interests of the administration of justice extremely well. They were able to make substantial savings in costs. There has been no need to create chief justices' clerks because each borough-based justices' clerk is the chief justices' clerk and locally devolved management has been delivered via the justices' clerk. They have been able to provide local services—for example, court managers, Bench legal advisers, justices' training officers, etc. They have collaborated; they have operated a regional legal forum very much on the lines of that suggested by my noble and learned friend in his various discussion papers. The aim has been to achieve a consistency of approach in the exercise of their own judicial powers and duties and to promote effective co-ordination with other justice agencies. In those respects the White Paper objectives have already been achieved in Outer London without any start-up or revenue cost implications and without any diminution in local service delivery.
My noble and learned friend has been very responsive from the start to the case that has been made by the Outer London magistrates' courts committees and has gone out of his way to hear their case and to probe whether or not the arrangements can meet his objectives. Recently a working party has been set up to discuss in detail the magistrates' courts' proposals for a system of formalised co-operation which could be set up as an alternative to amalgamation of the MCCs.
The purpose of the amendment is to provide my noble and learned friend with an opportunity to tell noble Lords what stage the discussions have reached. My noble and learned friend, perfectly properly, has been seeking assurances about the ways in which the Outer London courts work together as a regional strategic management body, about flexibility and use of resources, economies of scale, effective co-ordination with other justice agencies, effective management under financial stress which might be occasioned by cash limiting, and costings of additional revenue expenditure which would be occasioned by the creation of larger regional committees for Outer London.
It is my understanding that the representatives of the Outer London magistrates' courts committees have gone nearly all the way to satisfying my noble and learned friend on the issues. I should be grateful if my noble and learned friend could confirm whether that is
416
the case or whether more discussion is necessary. If they succeed in satisfying him that they can deliver what he is seeking, I should be grateful for an assurance that a government amendment will be brought forward at a later stage, perhaps at Third Reading in this House, or in another place, which will address the point.
My guess is that there is, if anything, very little between the courts and my noble and learned friend and I hope that he can confirm that that is the case. I beg to move.
Lord McIntosh of Haringey: My Lords, I should like to add my local support rather than party political support to the remarks of the noble Lord, Lord Jenkin of Roding. My noble friend Lord Graham of Edmonton and I had the pleasure of meeting the Haringey Magistrates' Courts Committee and Benches before Christmas and the views expressed by the noble Lord as to the views of the Outer London magistrates courts coincide with what we were told by people of all political persuasions and of none.
The noble Lord will perhaps remember the chairman of the Haringey Magistrates' Courts Committee, Jim Wilkins, who was a colleague of both of us on the Hornsea Borough Council, though not at the same time because the noble Lord, Lord Jenkin, lost his seat in the year that I was first elected.
Lord Jenkin of Roding: My Lords, I am extremely grateful to the noble Lord for giving way. Within six weeks I had found myself adopted for a parliamentary seat which I subsequently represented for 23 years; and I have had representations to the London Borough of Redbridge in exactly the same sense.
Lord McIntosh of Haringey: My Lords, the noble Lord lost his seat anyway because there was a Liberal candidate called Jenkins in the Stroud Green ward. My comment was not intended to be derogatory.
One of the few and perhaps the only benign result of the abolition of the GLC was the simplification of the magistrates' courts committees in the sense of a removal of a tier of bureaucracy in the magistrates' courts committees structure in outer London. It has been, as the noble Lord said, entirely successful. I hope that the noble and learned Lord the Lord Chancellor will be able to give the assurances sought by the noble Lord which will enable him in turn to withdraw the amendment.
The Lord Chancellor: My Lords, I confirm that I have been happy to meet representatives of the magistrates' courts service in outer London. We have had a number of exchanges of views and discussions. The best thing I can say about these matters at this stage is that I have indicated in the debates here what I am aiming for in relation to these amalgamations. The question is whether in the particular circumstances of outer London, with a rather special geography, something can be arranged which is suitable without amalgamation. My officials have met representatives of the outer London group and have had fairly detailed discussions which are still under way. So far as I can judge, those are making reasonably good progress towards achieving an arrangement which would be

417
suitable in the rather special circumstances of outer London. If these arrangements can be made, I shall be extremely happy.
So far as concerns provisions in the Bill, it is not apparent at the present moment whether amendments to the Bill will be required. It may be that the arrangements can be made on a basis which would not require any particular amendments in the Bill. We are not yet in a position to say for sure about that. However, if an agreement is reached, we shall consider carefully whether amendment to the Bill is required; and, if so, we shall put it forward as soon as possible. Quite a lot of detail has to be gone into because the arrangements may affect not only the magistrates' courts committee themselves, but also the local authorities as lead authorities, and so on, in relation to finance. Our prospects of securing the necessary progress are very good; although, as I said, there is still more to be done.
I hope my noble friend will feel that this is a progress report satisfactory for the present, and that he will feel able to withdraw his amendment on the footing that, if an amendment should be necessary arising out of our discussions, I shall endeavour to put that forward as soon as its need becomes apparent.
Lord Jenkin of Roding: My Lords, I am happy to give my noble and learned friend an assurance that his answer has been not only satisfactory but more than satisfactory. It would be quite wrong to continue to press the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.15 p.m.
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 155:
Page 31, line 9, at end insert:
("( )The power to make an order under subsection (3) above shall not be exercised to the detriment of the constitutional position of the Lord Mayor and Aldermen of the Corporation of London as Magistrates.").
The noble Lord said: My Lords, this amendment raises an entirely different point though the purpose is broadly the same; namely, to give my noble and learned friend an opportunity to let us know how his discussions are proceeding with the Corporation of the City of London. I suspect that there may be one other difference between this amendment and the previous one: this one is unlikely to be greeted with quite the same warm approval by the noble Lord, Lord McIntosh of Haringey, as was the former amendment. But we shall wait to see.
The issue is the constitutional position of the Lord Mayor and aldermen as magistrates of London. The Lord Mayor and aldermen have exercised judicial functions since medieval times. Until 1969—it is amazing to think how recently that is—all the work of the City's magistrates' courts was undertaken by the Lord Mayor and aldermen, and the magistrates' courts committee was the Court of Aldermen. The Justices of the Peace Act 1968 made some valuable reforms and created a magistrates' courts committee. It enabled the Lord Chancellor to add lay magistrates to the City
418
bench, a move which was necessary to allow individual benches to consist of three magistrates. Anomalously, before 1969, the Aldermen tried cases alone as though stipendiaries. The reforms left the position of the Lord Mayor and Aldermen as magistrates unchanged, with the Lord Mayor as chief magistrate and the Aldermen as deputy chairmen. It was felt necessary, in Sections 39 and 40 of the Justices of the Peace Act 1979, to protect their constitutional position. That is what is being sought in the present case.
As a result of the reforms, there are currently 75 lay magistrates who sit with the 25 Aldermen. The City Court House is a newly refurbished premises adjacent to the Mansion House. There are four busy courts whose work is quite untypical with the rest of the magistracy. Most of it is related to the prosecution of financial crime at all levels of complexity and seriousness. There is a close and harmonious relationship between the lay and Aldermanic magistrates. All have been totally opposed to the idea of a forced amalgamation of the City bench with inner London.
My noble and learned friend has recorded his intention to ensure that if an amalgamation were proposed in future, he would take steps to secure the constitutional position of both the Lord Mayor and aldermen. I have had sight of a letter which his official wrote to the Clerk to the City Remembrancer on 22nd February 1994 in which he stated:
"I am able to assure you that should the Lord Chancellor decide at any time in the future that the City of London magistrates' courts service should be amalgamated with all or part of the Inner London service, he would be concerned to take whatever steps were necessary in order to secure both the position of the Lord Mayor as the Chief Magistrate in the City of London, and the continuing existence of the Court of Aldermen".
The Bill does not say that and the City has suggested that the intention, welcome as it is, should be reflected in the order-making power to align the power with the policy. The purpose of the amendment is to provide for that, and perhaps more immediately to give my noble and learned friend the opportunity to say where this is now leading. I hope that my noble and learned friend can give me the assurance which I seek that he wishes to secure and safeguard the constitutional position of the Lord Mayor and Aldermen and that that will be matched by a suitable amendment at a later stage of the Bill. I beg to move.
Lord Ackner: My Lords, I support the amendment. I should perhaps declare a rather remote interest in as much as my wife was one of the first of the lay justices in the City and, no doubt because of that connection, I receive representations from the City Remembrancer on this subject. I shall not repeat the substance of what the noble Lord has just said. The problem which the City envisages should there be—as it hopes there will not be —the amalgamation of the City with Inner London is that there would be two chief magistrates. The chief metropolitan stipendiary would remain as a chief magistrate and so would the Lord Mayor. In line with the assurance to which the noble Lord has referred, I imagine that the Lord Chancellor's proposal will envisage the City as a separate commission area within the new combined area. But that would not remove the

419
basic problem of one area with two chief magistrates. That is one of the problems which quite clearly the City envisages.
The Lord Chancellor: My Lords, I fully agree with the principle underlying my noble friend's amendment, which is supported by my noble and learned friend Lord Ackner. The possibility of the City of London amalgamating with inner London arrangements is something which we considered. Certainly, it is a matter which would require very careful consideration if it were to go forward.
As usual, there are some special considerations affecting inner London particularly. I recently indicated that as regards the City of London magistrates' courts service it would be unwise to consider an amalgamation of the City and inner London committees before 1996. That is because one of the effects of the Bill will be to restructure the inner London service and in particular to disengage it from the Receiver of the Metropolitan police who is fundamental at the present moment to the management arrangement. I do not envisage that the restructuring will be complete before 1996.
It would clearly be inappropriate to consider any changes to the boundaries of the inner London service until its internal restructuring is complete. As I said, any question of amalgamation of the City with inner London would require very careful consideration at the appropriate time. As it appears to me at present, the constitutional position of the Lord Mayor and the aldermen of the Corporation of London as magistrates falls under provisions which would not be affected by an operation which amalgamated the management of the services so long as there were separate divisions for the magistrates themselves. So the Lord Mayor would remain the chief magistrate for the City Bench and the effect on his position would be nil as regards this aspect of the matter.
For that reason, I have not thought it necessary to propose expressly in the Bill anything on the lines proposed in Amendment No. 155 because any power under subsection (3) could not be exercised to the detriment of the constitutional position of the Lord Mayor and aldermen of the Corporation of London as magistrates. I have no intention that that should happen in any event. In view of my noble friend's amendment it may he wise to consider the matter afresh. That is the position, as I understand it, at present. In the light of my view, my noble friend may feel able to withdraw his amendment.
Lord Jenkin of Roding: My Lords, my noble and learned friend has stated the Government's position with admirable clarity. He has recognised that the constitutional position of the City Bench is unique and is therefore genuinely a special case. The difficulty which the City feels is that this provision has been found necessary. Section 40 of the Justices of the Peace Act 1979 makes express reference to the matter. In the absence of any such express reference in this legislation it may therefore be construed by others and perhaps by other governments as in some way going back on that provision, despite my noble and learned friend's words.
420
He has undertaken to look at the matter again. I cannot ask for more than that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 [Constitution of magistrates' courts committees]:
Lord Mottistone Lord Mottistone moved Amendment No. 156:
Page 31, line 42, leave out ("either").
The noble Lord said: My Lords, in moving this amendment I speak also to Amendments Nos. 157, 159 and 160. When debating amendments similar to these in Committee on 22nd February my noble and learned friend invited us, at col. 538 of the Official Report, to,
"think of a wise limitation"
to the proposed power of the Lord Chancellor bluntly to appoint co-opted members. He gave the Committee an example of why that might be necessary.
The noble Lord, Lord McIntosh, with whom I am happy to share the amendment under debate, has responded with Amendment No. 158, addressed specifically to the example given by my noble and learned friend. That may commend itself to your Lordships. However, there may be unforeseen cases when the Lord Chancellor wishes to add, or to have retained, as an independent member of an MCC a particular person; hence Amendment No. 159.
It is important that if the Lord Chancellor exercises these powers, the person he appoints should be additional to the two co-opted members, not as in the Bill at present, which will allow the magistrates' courts committee the freedom to co-opt two persons of their own choice.
Turning to Amendment No. 160, your Lordships may remember that my noble friend Lord Gisborough proposed an amendment to this effect in Committee. In responding my noble and learned friend said., at col 542 on 22nd February, that he intended,
"to provide that Lords Lieutenant will have the right to attend any magistrates' courts committee".
That is welcome. He went on to explain how that might be done without actually providing for it in primary legislation. However, it has been the case heretofore that that provision is made. Currently it is in Section 20(3) of the 1979 Act which my amendment seeks to repeat.
Talking to Lords Lieutenant before the meeting to which my noble and learned friend referred in Committee and at which his representatives addressed a group of them, I gained the strong impression that some of them and their benches attach much importance to their membership by right. It is true that others do not. But they much appreciate the fact—a point not made by my noble and learned friend—that they can attend if for any reason they or the bench think it necessary.
On reflection, and with that in mind, my Amendment No. 160 would have been improved if it read,
"The keeper of the rolls of a county may"
rather than "shall". Perhaps my noble and learned friend may consider that as a possible alternative when replying. I beg to move.
Lord McIntosh of Haringey: My Lords. I speak to Amendment No. 156, which is in my name as well, and also to Amendment No. 158. When we debated the

421
power of the Lord Chancellor both to approve proposed co-options to magistrates' courts committees or to make his own appointment to those committees, the noble and learned Lord the Lord Chancellor gave not only as his prime example, but his only example, the occasion when the power under paragraph (b) would be used; namely, the need to appoint a liaison judge for the area and the difficulty which might arise if previously a liaison judge was a co-opted member of the magistrates' courts committee for the area. I find the reasoning a little abstruse myself.
I did not think—I still do not think—that the very wide powers given by paragraph (b) could be justified by that very particular case of the liaison judge, but if it helps the noble and learned Lord to make provision for it, I am happy to do so in my Amendment No. 158, in which I suggest:
"The liaison judge for the area shall by virtue of his office be a member of each magistrates' courts committee outside Inner London".
That meets the resistance to the previous amendments which was expressed by the Lord Chancellor. He did not really give any other examples.
I appreciate that the powers that are given under paragraphs (a) and (b) are alternatives, not additions. I am well aware of that. On reflection—this point did not occur to me when we considered the matter in Committee—that seems a little odd because it appears that, if the magistrates' courts committee gets in quick and makes its two co-options quickly and the Lord Chancellor approves those co-options, the power of the Lord Chancellor to make his appointments disappears. One might find that the committees strain at the leash, as if they were waiting for the starting gun. It might be a question of who manages to exercise the power first. That does not sound to me like good legislation or even good thinking. I would much rather say, "Yes, the magistrates' courts committees can make co-options. Yes, if you really wish"—but I do not care for this very much—"the Lord Chancellor may have the power to approve or disapprove the co-options that are made", but please let us not have those appointments being made by the Lord Chancellor. Let us have the liaison judge, as has been suggested; but let us not have any other appointments being made by central government.
5.30 p.m.
The Lord Chancellor: My Lords, the amendments in this group relate to the possibility of, in some circumstances, adding to the committee persons whom the Lord Chancellor might wish to appoint. My noble friend Lord Mottistone is, in effect, suggesting that the power of nomination should be reduced so that it relates to only one member and that there should be an official appointment. I said before that I would expect to make regulations which would permit the keeper of the rolls and the liaison judge to attend magistrates' courts committees in any event. In the situation to which my noble friend referred, it would be open to the magistrates to appoint the keeper of the rolls as a member of the committee if they wished. That would
422
meet the situation in which, as he said, some committees want to include the keeper of the rolls while others do not.
I used the position of the liaison judge as an illustration of something that has happened in my experience and which might give rise to questions of nomination. I was not really intending to focus on that as a case requiring special treatment. It was merely an illustration of what I had in mind. The regulations governing length of appointment will take care of the situation to which the noble Lord, Lord McIntosh, referred earlier.
This is a difficult issue to get right. There is a lot to be said for the idea of my noble friend Lord Mottistone of reducing the number of such members to one. It is not easy to see how to define the special circumstances. The power to appoint one such member would have to be left to the Lord Chancellor. If other persons are to be nominated, it would be best to give the Lord Chancellor the power to nominate people in that category.
There is one slight problem with regard to the use of the phrase "liaison judge". I mention that because that is the way in which such judges are normally described. The existing legislation refers to a judge of the High Court or the county court who is nominated for that purpose. It may be that, with the appointment of the liaison judge being a possibility, the provisions should adopt the wording of the existing legislation rather than using the title "liaison judge".
During the progress of the Bill I have been occupied with discussions on a number of matters. It may be that this aspect could profit from some further discussion before a final conclusion can be reached on it. I must say that I do not feel strongly about what the precise answer might be, but I am interested in the arguments that have been put forward. Leaving one member as the Lord Chancellor's nomination without further qualification may be the wise course. Special officers may then be appointed as one of the co-opted members if the magistrates' courts committee so decides—that is, if the person concerned is not already a magistrate. The keeper of the rolls will already be a magistrate and will therefore be eligible for appointment to the committee in the ordinary way.
If your Lordships will allow me to do so, I should like, therefore, to give further consideration to what has been said about this matter to see whether we can reach a conclusion that is generally acceptable to my noble friend and to the noble Lord, Lord McIntosh. I do not regard this as a central matter. It was part of the original proposals. I have given illustrations of why I think that it may be wise to preserve something of this sort, and I am happy to discuss further the precise form in which it should be preserved. Perhaps we can deal with it at the next stage.
Lord Mottistone: My Lords, I am grateful to my noble and learned friend for his understanding approach to the problem. Does the noble Lord, Lord McIntosh, wish to speak?
Lord McIntosh of Haringey: My Lords, I have no right to speak—except to intervene in the speech of the noble Lord, Lord Mottistone, and I do so only to thank

423
the noble and learned Lord the Lord Chancellor for his thoughtful although somewhat tentative reply which encourages me not to move my amendments.
Lord Mottistone: My Lords, I thank my noble and learned friend. Perhaps it will be possible to have some discussions between now and the next stage. As the Bill is to proceed to another place and given the effort on all our parts to try to find a suitable solution, which I am sure is the right approach, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 157 to 160 not moved.]
Clause 62 [Regulations as to constitution etc. of magistrates' courts committees]:
Lord Mottistone Lord Mottistone moved Amendment No. 161:
Page 32, line 21, leave out second ("to") and insert ("which may").
The noble Lord said: My Lords, when I tabled an amendment on this subject in Committee, my noble and learned friend reminded me gently that mine is a very small county with only one bench. I have, accordingly, altered my amendment to take care of such a case and to make a selection committee obligatory only when it is necessary. I hope that that will commend itself to my noble and learned friend. I beg to move.
The Lord Chancellor: My Lords, the Committee discussed at some length the ways in which the membership of the magistrates' courts committee might be chosen. I said then as your Lordships will remember—perhaps I may remind those of your Lordships who may not have this clearly in mind—that the selection procedure that is outlined in the Bill has the general support of the magistrates' courts service, as we ascertained on consultation. Of the 71 respondents to the consultation paper who expressed an opinion, 50 favoured the selection procedure that is proposed in the Bill and only 21 favoured the election procedure. The majority of 50 included representative bodies of all those who work and serve in the magistrates' courts service, including the Justices' Clerks' Society, the Association of Magisterial Officers, the Standing Conference of Clerks to Magistrates' Courts Committees, and the Magistrates' Association.
I have studied carefully the anxieties expressed in Committee by my noble friend Lord Mottistone. I said then that I would consider whether I could accommodate him in relation to the selection process, and a possible solution has occurred to me. I propose to provide in the regulations that I am to make pursuant to Clause 62 that if a committee area has only one bench, as is the case in at least one important area to which our attention has sometimes been directed, then that bench shall automatically be the selection panel. It would not therefore be necessary for the bench to elect a panel to select the committee. It would be for the bench as a whole to select the committee. I believe that that proposal meets my noble friend's worries. I undertake to do in the regulations what he wishes in that respect. In the light of that undertaking, I hope that my noble friend will feel able to withdraw the amendment.
Lord Mottistone: My Lords, I am most grateful to my noble and learned friend, and have pleasure in begging leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 162:
Page 32, line 25, leave out ("upper and lower limits") and insert ("an upper limit").
The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord McIntosh of Haringey, expressed concern at the Lord Chancellor's power to set a lower limit on the number of committee members, and sought to set that lower limit to 12. I indicated that although I intend to reduce the maximum size of magistrates' courts committees to 12, I do riot intend to set a lower limit.
Section 21 of the 1979 Act gives me a separate power to set a quorum for the committee, and that I intend to preserve. Subject to that, committees should have as many or as few members, within the permitted maximum, as they feel are necessary to constitute an efficient and an effective management group. indicated in Committee to the noble Lord, Lord McIntosh, that I was prepared to delete from the Bill the power to set a lower limit, because that covered completely the amendment that he proposed. Amendment No. 162 takes forward that undertaking, and I commend it to your Lordships. I beg to move.
Lord McIntosh of Haringey: My Lords, the amendment does indeed meet the undertaking which the noble and learned Lord the Lord Chancellor gave to the Committee. Unfortunately, it does not meet the point of my amendment, because the purpose of my amendment was to ensure that magistrates' courts committees were not too small. Whereas the Bill as drafted would have enabled the Lord Chancellor to specify a lower limit, I was trying merely to take that a little further and say that the lower limit should be 12. It is not a matter of great importance, but I should not like the noble arid learned Lord to think that he had met my point in fulfilling the undertaking that he gave.
The Lord Chancellor: My Lords, it seemed to me from listening to the debate, and in the light of the anxiety felt by the noble Lord, that the best way of meeting it was to leave it to the committee in the view that it was unlikely to set for itself a limit lower than it could conveniently operate. In any case, on consideration of the amendment proposed by the noble Lord, Lord McIntosh, I concluded that that power was not necessary; and in the light of the philosophy that your Lordships would like to pursue generally, it must be right for this amendment to be given effect to.
On Question, amendment agreed to.
Clause 63 [Supplementary provisions as to magistrates' courts committees]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 163:
Page 33, line 14, leave out ("chief justices' ") and insert ("justices' chief").
The noble and learned Lord said: My Lords, the amendment is one of a large group of amendments in which the noble Lord, Lord Peyton of Yeovil, the noble Viscount, Lord Tenby, my noble and learned friend

425
Lord Ackner, and my noble and learned friend Lord Taylor of Gosforth, the Lord Chief Justice, have put down amendments.
In the light of considerations that we had in Committee about the name of the head of service, I have been considering the position. From reading what was said then, I concluded that perhaps the best I could offer would be "justices' chief clerk". I felt keenly that "justice" should be in the title of that officer who will be representing the magistrates' courts service in the locality in consultations and arrangements with other agencies.
I took the view also that it was necessary that he would be chief, and that in the context of that service the word "clerk" had a connotation which was familiar and which had a long lineage. However, as I said in Committee, I do not feel strongly about the precise title of that office. I know that some others do. Therefore I have left open what the position should be. So I propose to move Amendment No. 163, and no doubt the noble Lords whose names I have mentioned, and perhaps others, will say what they wish to say, and then I shall consider what to do with my amendment. It may well be that some later amendments in the group will be those which are moved and carried rather than mine. I beg to move.
5.45 p.m.
Lord Peyton of Yeovil: My Lords, in referring to Amendment No. 164, I should first like to echo what other noble Lords have said during the afternoon; namely, to express my great appreciation of the patience and courtesy with which my noble and learned friend has listened to representations on this subject made to him. It is my most earnest hope that my noble and learned friend will go further than he has already gone, and accept the amendment to which I am now speaking. It has the merit of putting into the name the boundaries of the job. It distinguishes clearly from a justices' clerk—a name known, understood and honoured—from the rather different task which the new post will carry.
The noble and learned Lord the Lord Chief Justice, whose name is down to the amendment, put the point powerfully in Committee when he said:
"I see no prospect that the essential distinction between administrative functions on the one hand, and judicial and legal functions on the other, can possibly be maintained if the new office-holder is both qualified and denominated as a justices' clerk".—[Official Report, 22/2/94; col. 564.]
The amendment to which I am now speaking has the merit of meeting the point made by the noble and learned Lord the Lord Chief Justice.
The new officer will act as a justices' clerk only when authorised to do so by the magistrates' committee. His main role will be to co-ordinate and to contribute to the efficiency with which the courts are run. He will, as such, have no judicial functions. In those circumstances, if my noble and learned friend could see his way to accepting the amendment which has the widespread support of the Justices' Clerks' Society, and of all those engaged in magistrates' courts, he would earn their gratitude without in any way undermining the purposes which he has had in mind in creating that new post. It
426
would be tempting providence were I to prolong my remarks at this stage. I eagerly await my noble and learned friend's reply.
Lord Ackner: My Lords, on 22nd February, which was the fourth Committee day, in a short intervention —some might say an uncharacteristically short intervention of some 10 lines—I suggested that this was the appropriate title. One must bear in mind that the justices' clerk is a legal title. I accept that he undertakes administrative work but he is the legal adviser to the justices. The two together make the lay judge capable of dealing with matters both of fact and law.
In my submission, it is important to have the correct title, not because the title is in itself determinative but because it is most relevant in the context of what we are talking about to the functions that this new official will have. I understand that his functions will be essentially administrative. Labelling him in the manner that we propose will remove any suggestion that the justices' clerk is accountable to the new official on any matters which are legal and quasi-legal. That is a vital distinction which should be made. For those reasons I support what my noble friend said.
Viscount Tenby: My Lords, I wish to speak to the amendment tabled in the name of the noble Lord, Lord Peyton, and to express my appreciation to the noble and learned Lord the Lord Chancellor for his open mindedness. He always said that he would listen as the Bill came to be discussed. He has been true to his word.
In Committee I inquired in a somewhat jocular but nevertheless pertinent manner, "What's in a name?". To many unfamiliar with the specialised nature of this point, the answer is probably, "Very little". But to all who work in the service the matter is of the utmost importance for clarity of purpose. I am sure that I can now leave the matter in the hands of the noble and learned Lord.
Lord Hailsham of Saint Marylebone: My Lords, I hope that my noble and learned friend will forgive me but at the moment, and without expressing any dogmatic opinions, I agree with what my noble and learned friend Lord Ackner said. I have nothing further to add.
Lord Wigoder: My Lords, we on these Benches support the amendment standing in the name of the noble Lord, Lord Peyton of Yeovil. We do so not only on the ground that within the service it will make clear the distinction between the official who is providing primarily administrative services and those who are providing primarily legal services but on the ground that the matter will be made clear to the general public, who ought not to be entirely overlooked. They will find it simpler to understand what a justices' chief executive does and what a justices' clerk does. It will be more difficult for them to understand what a justices' clerk does and, quite differently, what a justices' chief clerk does.
A vast amount of correspondence and telephone calls are made by members of the public to magistrates' courts offices wanting to speak to the clerk, the magistrates' clerk, the justices' clerk, the senior

427
justices' clerk and so forth. If we adhere to the nomenclature which is proposed by the noble and learned Lord the Lord Chancellor, there will be scope for confusion, which can be easily and simply eliminated by adopting the proposal put forward by the noble Lord, Lord Peyton.
Lord Simon of Glaisdale: My Lords, behind the small difference in name lies an important constitutional issue which has been discussed at considerable length, with learning and in depth. As far as I am concerned, and for the reasons put forward by the noble Lord, Lord Wigoder, the issue can be encapsulated in the difference of wording. I support the amendment tabled by the noble Lord, Lord Peyton.
Lord McIntosh of Haringey: My Lords, until now I have tended to agree with the view of the noble and learned Lord the Lord Chancellor that the name is not critical. I still believe that the functions and their proper definition are far more important than the name. However, I am impressed by the anxieties of those who, like the noble Viscount, Lord Tenby, are involved in the magistrates' courts service, and for what it is worth I too support the noble Lord, Lord Peyton.
Earl Russell: My Lords, I was unable to speak on the Second Reading of the Bill due to an attack of laryngitis. However, when I referred to it in our debate on the humble Address I expressed some fear that the pursuit of managerial efficiency might create a risk to judicial independence. Were the noble and learned Lord to accept the amendment, that would go a long way indeed towards putting that fear at rest.
The Lord Chancellor: My Lords, I have expressed my views on the title that I propose in Amendment No. 163. I listened carefully not only to what I heard today but also to what I heard during our earlier discussions. In this connection it is important to have as widespread approval and support of the proposals as is possible to get from the service. I am seeking to achieve a sound managerial structure in the interests of the delivery of justice. The whole system is designed to deliver justice at a local level. The system is unique in the world as regards the extent of lay involvement at the level of work undertaken in the magistrates' courts in England and Wales.
I have been persuaded to accept that Amendment No. 164 tabled by the noble Lord, Lord Peyton of Yeovil, will promote that in a way that perhaps acceptance of my amendment might not. Therefore, in the light of those considerations, I shall ask leave to withdraw my amendment and hope that the noble Lord, Lord Peyton, will continue to be sufficiently enthusiastic about his amendment to move it in place of mine. I should be happy then to signify that I will accept his amendment.
Noble Lords: Hear, hear!
Amendment, by leave, withdrawn.
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No. 164:
Page 33, line 14, leave out ("chief justices' clerk") and insert ("justices' chief executive").
The noble Lord said: My Lords, I need no further invitation. I am extremely grateful to my noble and learned friend and shall proceed to move my amendment with alacrity.
The amendment has become very important to the Magistrates' Clerks' Society. I have been asked by its president and secretary to express their grateful thanks for the way in which their representations have been listened to by my noble and learned friend and now for his acceptance of what they regard to be a most important amendment. They wrote to me stating:
"This and other significant and worthwhile changes to the Bill will encourage and give confidence to those who work in the magistrates' courts service and for this we are very grateful to the Lord Chancellor and to Members of your Lordships' House".
I beg to move.
6 p.m.
The Lord Chancellor: My Lords, as I indicated, I am happy to accept the amendment and to express gratitude to my noble friend Lord Peyton of Yeovil. I am grateful also for the message which he has just read out from the Justices' Clerks' Society. I know that it has considered carefully a number of matters raised on the Bill. From time to time it has found the views of yesterday not necessarily the best views for today. This is an example of where I have done the same.
I should mention that a number of consequential amendments will arise from the acceptance of the amendment. I believe that Third Reading is the best time at which to deal with them.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, if Amendment No. 165 is agreed to, I cannot call Amendments Nos. 166 or 167.
Clause 64 [Reports and plans]:
Lord Mottistone Lord Mottistone moved Amendment No. 165:
Page 33, line 35, leave out from beginning to the end of line 19 on page 34 and insert:
("(2) The Lord Chancellor may from time to time issue guidelines to assist magistrates' courts committees in the exercise of their responsibilities under subsection (1) above").
The noble Lord said: My Lords, we tackled this subject in Committee. My noble and learned friend said in effect that he thought that it was helpful to have detailed guidance and instructions in primary legislation. I sought to persuade my noble and learned friend that if magistrates' courts committees are any good, they will take initiatives on their own account to give effect to subsection (1) of the proposed new Section 22A. Since that time, my noble and learned friend and I have corresponded and I am grateful to him for his reply to my letter on the subject.
It seems to me that my amendment will take care of all the guidance that either the Lord Chancellor or the magistrates' courts committees need. As that guidance is not in primary legislation, it can be changed easily to meet changing circumstances. I suggest that in the case of most of the guidance which it will be necessary to give to magistrates' courts committees, even secondary legislation is not necessary because such guidance

429
should be kept to a minimum and magistrates' courts committees should be left to get on with the job. I beg to move.
Viscount Tenby: My Lords, when the subject of magistrates' courts committees being directed by the noble and learned Lord and how they should communicate with their own magistrates was raised in Committee, I said that that might lead to the promotion of certain current policy concerns held by government. For example, it might be that the noble and learned Lord's department wished to pursue the matter of court use and court hours or some other current preoccupation. In my view, it might also be interpreted as sending a somewhat harsh message about the ability of magistrates on the MCCs to communicate competently with their own benches. Logic would indicate that they are more suited to such a task than those who are rightly preoccupied with the national picture.
In making those remarks in Committee, I referred to the consultative process as resembling something of a public relations exercise. On reflection, I feel that such a description may have given offence not only to the noble and learned Lord but also—and I suspect that this is of more concern to him—to members of his department who carried out conscientiously and courteously what was a very extensive exercise. In fact, I was referring' to a view widely held, rightly or wrongly, within the service. I suspect that its origin can be traced largely to two factors; namely, the sheer weight of evidence collected and subsequent discussion papers and decision documents, and secondly, the indications of a certain inflexibility, which emerged, or was perceived to emerge, and which, happily, since the Bill started its passage, has largely evaporated.
In any event, I hope that the House will permit me to express my apologies to the noble and learned Lord and to his staff for unwittingly causing offence to them and to the integrity of their exercise. As someone who practised public relations for most of his business life, it may be that I should apologise too to the Institute of Public Relations whose work I value highly and whose goodwill I wish to continue to enjoy.
I have outlined previously the reservations I have about the noble and learned Lord's power to indicate to MCCs how they should communicate with their benches. The noble and learned Lord mentioned that it would be extremely useful as a preliminary to any default arrangements. I can understand that if one is to have a default mechanism, which we all hope earnestly will be but rarely exercised, it is desirable to have standards against which judgments can be set. I believe that such standards can be established without interfering or unduly influencing the lines of communication between MCCs and their own benches. For that reason, I prefer the use of guidelines as provided in the amendment. However, I am sure that the noble and learned Lord has taken note of the anxieties expressed.
The Lord Chancellor: My Lords, I begin by thanking the noble Viscount, Lord Tenby, for what he said on the consultation which preceded the introduction
430
of the Bill. I am grateful, as I am sure are my officials, for what he said. I am sure that we understood the general thrust of the noble Viscount's remarks on the previous occasion and I hope that he can remain in good standing with his institute.
I believe that the powers given to the Lord Chancellor under the existing Clause 64 are necessary. They form a package which together gives committees both the capacity and the freedom to manage and, when they choose to do so, to delegate some of their responsibilities so that they can be fulfilled as effectively as possible.
The powers provide also that the Lord Chancellor must make it clear in prescribed form what standards of performance are expected of committees. I have said already that I believe that it is entirely right that Parliament should be able to call the Government to account for the efficiency with which taxpayers' money is spent. With responsibility in that regard, I must be able to respond in an informed way when Parliament requires me to do so. The introduction of performance standards for which committees are accountable to the Lord Chancellor is a straightforward hands-off and effective way of achieving that. It does not allow the Lord Chancellor to direct the way in which the service is managed and yet it links the standards of performance to accountability to Parliament. I believe that it is necessary for that power to exist.
I certainly hope that the powers are exercised as lightly as possible but in discussions on some of the detail contained in other parts of the Bill, it has become apparent that there may be occasions when, for example, the duty to confer with the magistrates of particular benches should be enforced by directed standards. It may be that that should not be necessary in a well managed organisation but there may be occasions when it is necessary.
The substance of the matter is one on which the service would be consulted in detail before any standards were set. I must stress, in particular, that it is important from the point of view of those who use the courts that standards should be set. If the current amendment were accepted, such standards would be pre-empted. There is a good example of that in relation to the disabled. As my noble friend Lord Swinfen said in Committee, it may well be right that that sort of power should be set out on the face of the Bill to reflect that concern. However, if the amendment were passed, that would not be possible.
I believe that the subsections which the amendment seeks to delete are necessary to enable committees to be fairly and reasonably accountable and also for them to be given proper notice as a basis for setting standards by which, ultimately, they would be regarded as accountable; and in respect of which, if they failed, default powers may be necessary. I hope and believe that default powers will never be necessary. However, if they were necessary, it would be highly desirable that the standard to be attained should be set and the exact default specified before one moved into the situation of using the powers. In the light of those considerations, I hope that my noble friend will feel able to withdraw the amendment.
Lord Mottistone: My Lords, I thank my noble and learned friend for his reply. However, I am not as happy as I have been over responses to earlier amendments. Although I appreciate that my amendment is in the form of a probing amendment because it seeks to delete a whole chunk instead of trying delicately to amend the clause, I do not really believe that you can expect people to give of their best if they feel that they are being too closely watched and regulated. There is potential for that within the clause.
As long as my noble and learned friend sits on the Woolsack, I am sure that we shall not have any of the kind of problems that I fear. However, one cannot be sure that he will be there for ever. It is something which needs watching as regards the future. When the regulations, which may stem from this, come forward, that may be the time to do the watching. However, I do not wish to take the amendment any further at present. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 166 not moved.]
6.15 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke moved Amendment No. 167:
Page 34, line 13, at end insert:
("( ) In discharging their responsibilities under subsection (1) above, a magistrates' courts committee shall have regard to the needs of court users who are disabled; and so long as any direction under subsection (4) above is in force the standards of performance required under that subsection must include standards relating to the, provision made for such court users.").
The noble Lord said: My Lords, it is my pleasure to move the above amendment on behalf of the noble Lord, Lord Swinfen, who is absent abroad on parliamentary business. I should like, first, to thank the noble Lord, the disability organisations and above all, the noble and learned Lord the Lord Chancellor, who have all been very helpful and supportive. As the House will see, the amendment is also tabled in my name and that of the noble Baroness, Lady Darcy (de Knayth).
It is very rare for an amendment that I move to be as skilfully drafted as the present one. In future, I must remember to work much more closely with the noble Lord, Lord Swinfen, and with the noble and learned Lord the Lord Chancellor so that I have the same kind of meticulous care reflected in my amendments.
The first part of the amendment calls for the,
"magistrates' courts committee [to] have regard to the needs",
of disabled people. It is a modest request and it would be pleasant to think that the awareness of the needs of disabled people was so strong and sensitive that such a provision would be unnecessary; but, of course, that is not so.
There have been dramatic advances in the perception of what is required if disabled people are to have the same rights as others. However, there is still a great deal to be done. Access to the magistrates' courts—by which I mean the physical and sensory freedom to participate fully—is frequently denied because of old buildings or a failure to provide modern aids for communication and, in part, as a result of general thoughtlessness. We know that the majority of the 640 courts are not accessible to disabled people and that only four or six new courts are
432
built every year. The requirement that the needs of disabled people should be considered is an important advance in the fight for equality for disabled people.
I turn now to the second part of the amendment. I welcome directions from the noble and learned Lord the Lord Chancellor requiring standards to be set. In so many cases there is good, indifferent or poor provision. Ensuring uniformity can have a tremendous effect on the quality of provision. That can be achieved by setting standards which I have no doubt the noble and learned Lord the Lord Chancellor will do if the House is kind enough to accept the amendment.
Our magistrates perform a difficult task both soundly and efficiently for the majority of people, but it is in the field of disability that they are so lacking. However logical, clear and just the proceedings may be—and, they are—they are useless to a disabled person if he or she is unable to get into the court or understand them. It is essential that any standards set should include those related to the important and neglected needs of disabled people.
I am anxious—as, indeed, are the disability organisations —to ensure that the standards for disabled persons are specific and that there are consultations with the relevant organisations in drawing them up. I hope that the House and the noble and learned Lord the Lord Chancellor will be able to accept the amendment. I beg to move.
Baroness Darcy (de Knayth): My Lords, I should like briefly to support the amendment so ably moved by the noble Lord, Lord Ashley of Stoke, and to pay tribute to the noble Lord, Lord Swinfen, for his dogged pursuit of the issue. I should also like to thank all noble Lords who supported us in Committee. Finally, I should like to thank the noble and learned Lord the Lord Chancellor for, once again, listening to us, reflecting on the matter and then responding so positively; and, indeed, for his help in drafting the amendment so as to make it an even better one than the noble Lord, Lord Ashley, might have created if left to his own devices. I commend the amendment to your Lordships.
Lord Renton: My Lords, I, too, should like briefly to support the amendment. It is within my recollection—and, perhaps, within the recollection of other noble Lords—that sometimes in court circumstances arise in which the accused person or a witness needs to attend court in a wheelchair. I remember one case in which the accused person had had an accident between the time when he was committed for trial and the time when he was brought before the court. The trial could have been postponed indefinitely, but he did not want that to happen. It caused frightful embarrassment in the court.
I am not saying that all courts can easily be modified. The court that I have in mind is one dating back to the mid-18th century. It has steps leading up to the dock and to the jury box, which means that there would be no hope of wheelchair access. Being a rather small court, it is difficult to find a place on the floor where an accused person or even a witness can easily be seen and heard by the jury. It may sometimes be necessary to make pretty drastic arrangements in some older courts. However,

433
with the more progressive attitude that we now have towards the disabled, I believe that the proposal should be considered seriously.
Lord Boyd-Carpenter: My Lords, I too should like to express my support for the amendment. Although I am perfectly sure that the relevant authorities will do their best in any event to cater for the needs of the disabled, it seems to me that there would be an advantage in having such a duty set out on the face of a Bill. Often, there are psychological as well as legal arguments for having on the face of a Bill a requirement which Parliament really wants to see met. Therefore, it would be helpful if noble Lords accepted the amendment. The provision could then be put on the face of the Bill and it would be there as an example, an indicator, for the future.
Lord Harvington: My Lords, I wish to support the amendment as I believe it would enable a provision to be made available in courts which is made available in this Chamber; namely, a induction loop system. In this Chamber we have such a system in addition to the ordinary amplification system. Therefore people who are extremely hard of hearing, as I am, can hear what is said better than those who have normal hearing. This system is not very expensive to install.
Baroness Macleod of Borve: My Lords, I too wish to support this amendment. We must remember that there are many kinds of disablement. There are blind people, deaf people, those who cannot walk, and those who are confined to a wheelchair. In the courthouse where I work, there are six courts operating five days a week. It will be difficult to accommodate in all courts all the different kinds of disability from which some people suffer; but perhaps we should consider issuing an instruction to introduce into one court in a particular area facilities to accommodate people with the disabilities I have mentioned.
The Lord Chancellor: My Lords, I have had an opportunity to discuss this matter in some detail with my noble friend Lord Swinfen. I appreciate the support that so many noble Lords gave to the amendments that were moved in Committee by my noble friend Lord Swinfen. The noble Lord, Lord Ashley of Stoke, was unavoidably absent from the Committee stage; but his support of the amendments was signified then and I am glad that he is able to be with us today to express his support for this amendment personally.
This amendment has the wholehearted support of the Government and I hope that your Lordships will accept it. I wish to take this opportunity to mention one matter which was discussed in Committee; namely, the provision of sign language interpreters for defendants. The Costs in Criminal Cases (General) Regulations 1986, made under the Prosecution of Offences Act 1985, provide that courts have full discretion to authorise payment for interpreters for defendants. This does not impinge on courts' or committees' budgets—this may be an important consideration—as payment for interpreters is made out of central funds. The provision of facilities for prosecution witnesses is of
434
course the responsibility of the prosecuting authority. I believe that this amendment that your Lordships are now considering will ensure that the needs of disabled court users are always in the mind both of magistrates' courts committees and of central government in relation to the provision made in these courts. As I have already said, I welcome the amendment wholeheartedly.
On Question, amendment agreed to.
Clause 66 [Appointment and functions of chief justices' clerk]:
[Amendment No. 168 not moved.]
[Amendment No. 169 had been withdrawn from the Marshalled List.]
Lord Peyton of Yeovil Lord Peyton of Yeovil moved Amendment No. 170:
Page 35, leave out lines 1 to 10 and insert:
("( ) A person may not be appointed as a chief 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: My Lords, this amendment and the three others which are grouped with it which are in my name and that of the noble Viscount, Lord Tenby, are not ones which I wish to press. They concern the appointments of what was at the time that the consultation paper was printed the chief justices' clerk and justices' clerks. Amendment No. 170 refers to the appointment of a chief justices' clerk, and Amendment No. 185 refers to the appointment of a justices' clerk. I would mildly prefer the wording that is proposed; but, on the other hand, I would not feel inclined in the present circumstances to press my noble and learned friend to accept either of these amendments. I simply wish to hear how he views the situation.
It might be convenient to your Lordships if I refer to Amendments Nos. 179 and 187 briefly now. The amendments require that the Lord Chancellor shall,
"publish the criteria for approval"
and give his reasons for rejection. I am given to understand that my noble and learned friend would not like to see the words "criteria for approval" included in the Bill, and I rather understand that the criteria for approval are likely to be so obvious as to be not worth stating. I wonder whether it would be acceptable to my noble and learned friend if I were to withdraw these amendments and then table others for Third Reading which merely require the noble and learned Lord the Lord Chancellor to state reasons for rejection, leaving out the criteria for approval. I beg to move.
The Lord Chancellor: My Lords, we have spoken of these matters in Committee at some length, and I have considered carefully all that was said then. Amendments Nos. 170 and 185 seek to change the way that magistrates' courts committees will be required to seek the Lord Chancellor's approval for the appointment of a chief justices' clerk. I must be careful to modify that to a justices' chief executive, or to a justices' clerk. This was a topic that was discussed in the Government's consultation process on the implementation of the White Paper.
The two options which attracted any measure of support were, first, the short list procedure where the committee would submit to the Lord Chancellor a short

435
list of names chosen from those who had applied for the particular post. The Lord Chancellor would indicate which of the names would receive his approval and which would not. The committee would then be free to appoint any short-listed candidate who had received the necessary approval. This short list procedure was supported by a majority of those who responded to the consultation paper. In view of this, and with the support of the magistrates' courts consultative council, I decided to implement that procedure—that is the effect of this part of Clause 66.
The second option was the single name procedure. The committee would complete its recruitment procedure and submit the name of the single successful candidate for the Lord Chancellor's approval. The effect of this amendment would be to replace the short list procedure, which has the support of the magistrates' courts service, with the single name procedure which, on the basis of the responses to consultation, does not have the same support. However, I am impressed by the argument that if I ever felt constrained to withhold my approval, the single name procedure could result in the committee being without a chief executive, or justices' clerk as the case may be, for an unacceptably long period of time.
I wish to point out now that although the phrase "short list" was used in the descriptions at consultation, if one looks at the provision in the Bill, one will see that phrase does not appear. The option given in the Bill is to submit one of a number of names. In other words, the provisions allow the magistrates' courts committee in question to use whichever form or procedure it prefers. If it wants to put only one name forward, that option is open to it at the end of the process. If it wishes to put several names forward, it may do so. It is entirely up to the committee. I wish to make it clear that in any event, whether it was a case of one name or a number of names, if anyone was disapproved of for the purpose of appointment, I would wish to give reasons. In a moment I shall deal in a little more detail with what my noble friend said on that subject.
Both methods are open under the Bill. The regulation-making power referred to in the centre of the clause relates to the manner in which approval would be sought, notice, and such matters. There is no question of the regulation-making power cutting out either of the two options which are open to the magistrates' courts committees. Therefore, every magistrates' courts committee which hereafter wants the Lord Chancellor's approval to either a chief executive or justices' clerk will have the option of either putting forward a list of names or putting forward only one name. Therefore, I believe that with this method we have managed to secure that all options are covered. The more freedom the magistrates' courts committee has, the better in that respect.
I turn now to the later amendments to which my noble friend Lord Peyton referred. I take the view that for the Lord Chancellor to publish criteria in advance would be unnecessary. As my noble friend said, most of them would be obvious. Inevitably, a particular case would arise which was not covered by what had been envisaged. So far as I know, disapproval has never
436
arisen under these powers, which have existed in respect of justices' clerks for a long time. The most likely ground for disapproval which I can think of is that information which had a bearing on whether the person in question was suitable might be in the hands of the Lord Chancellor but for some reason was not available to the magistrates' courts committee. Therefore, I believe that it would not be wise to publish criteria.
On the other hand, I strongly support the view that the Lord Chancellor ought to give reasons for disapproving any person. That would be a proper request in any event. There is no reason why that should not be expressed on the face of the statute, as one of my noble friend's later amendments requires.
In that context, the amendment proposes that the Lord Chancellor should inform the magistrates' courts committee and the candidate. I believe that it would be preferable for the Lord Chancellor to respond to the magistrates' courts committee, which had nominated the individual to the Lord Chancellor. It would then be for the magistrates' courts committee to tell the candidate in question the reasons communicated to the committee. The chain of accountability and responsibility lies with the magistrates' courts committee. Therefore, the Lord Chancellor should communicate his decision to the magistrates' courts committee and then the magistrates' courts committee should inform the candidate.
In the light of that explanation, my noble friend may feel that the clause as presently drafted secures his option, as proposed in Amendment No. 170, and that that option is not damaged by the fact that the clause also allows the magistrates' courts committee other options if it wishes to put forward one name at its discretion.
6.30 p.m.
Lord Peyton of Yeovil: My Lords, I am grateful to my noble and learned friend for his explanation. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 171 to 174 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 175:
Page 35, line 18, leave out from beginning to ("a") in line 36.
The noble and learned Lord said: My Lords, Amendment No. 175 is a paving amendment for Amendment No. 177. Therefore, it is appropriate that I should speak to that amendment at this stage.
Amendments Nos. 175 and 177 arise from the anxiety that was expressed at Committee stage in relation to the apparent ease with which a justices' chief executive could exercise the functions of a justices' clerk. In order to meet that, the amendments to the clause provide that a justices' chief executive is not to be able to perform any of the functions of a justices' clerk unless first appointed by the committee as a justices' clerk and then authorised by the committee to perform any or all of the relevant functions.
The intention of the amendments is clear. It is also worth mentioning that the amendments make it clear that committees may appoint one of their existing justices' clerks as their justices' chief executive while

437
retaining his bench responsibilities. That may be appropriate in some circumstances and I would certainly not wish that arrangement to be prohibited. I can think readily of one area where that would be the position. There are a number of other areas which come less readily to mind where a decision has been taken that one of the justices' clerks in an area should be the clerk to the magistrates' courts committee and the justices' chief executive. The amendments permit a great deal of flexibility and allow for joint justices' clerks to be appointed, and so on.
I beg to move Amendment No. 175 as a paving amendment, the main amendment being Amendment No. 177, to which I have spoken.
Lord Ackner: My Lords, I have tabled an amendment to Amendment No. 177, to which the noble and learned Lord has just spoken. I should not like to find myself out of court, and if I have risen too soon it is merely an indication of enthusiasm rather than a desire to speak out of turn.
Lord Wigoder: My Lords, the noble and learned Lord, Lord Ackner, is right in his desire to speak to his amendment at this stage. Perhaps I should deal with Amendment No. 178, which is also an amendment to Amendment No. 177.
The Lord Chancellor: My Lords, we are dealing at present with Amendment No. 175. The opportunity to move Amendment No. 178 will come when I move Amendment No. 177. Although I have spoken to that amendment I have not yet formally moved it because we have not yet reached it.
Lord McIntosh of Haringey: My Lords, I hope that the noble and learned Lord will forgive me if I intervene. Since we have a grouping, and the noble and learned Lord has spoken to Amendment No. 177, it would be helpful if the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Ackner, spoke to their amendments to Amendment No. 177 so that we can debate all the amendments at the same time.
Lord Peyton of Yeovil: My Lords, it is a great source of relief to me that others besides myself are occasionally thoroughly confused by the groupings to which we are slaves. I believe that some of the confusion arose from the fact that I had not moved, nor had I been called upon to move, Amendment No. 172 with which Amendments Nos. 175 and 177 were grouped. Had I been called upon to move it, I would not have done so because I think that my amendment has been overtaken by the two which the noble and learned Lord has just moved.
The Lord Chancellor: My Lords, I have called Amendment No. 175 and spoken to it. It is open to your Lordships to speak to Amendment No. 178, although it cannot be moved until we come to Amendment No. 177.
Lord Renton: My Lords, greatly daring, perhaps I may suggest that when we have a grouping which involves an amendment to an amendment, it saves confusion if we have a separate discussion on the
438
amendment to the amendment and on the amendment which is to be amended. If an important point, such as that to be raised by the noble and learned Lord, Lord Ackner, is grouped with various other amendments, I can only feel that confusion results.
Baroness Trumpington: My Lords, the noble and learned Lord the Lord Chancellor has moved and spoken to Amendment No. 175. I believe that your Lordships are concerned with Amendment No. 177 in conjunction with Amendment No. 178. When the noble and learned Lord moves that one, it will be totally in order for other people to speak to it. If we can deal with Amendment No. 175 now it would be more satisfactory.
On Question, amendment agreed to.
[Amendment No. 176 not moved.]
6.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 177:
Page 35, line 39, at end insert:
("( ) Where, in accordance with subsection (5) above, a person holds an appointment as justices' chief clerk with an appointment as justices' clerk for a petty sessions area, he shall not exercise any functions as justices' clerk for the petty sessions area unless authorised to do so (either generally or in any particular case) by the magistrates' courts committee for the area which includes that petty sessions area.").
The noble and learned Lord said: My Lords, the purpose of this amendment is to allow the magistrates' courts committee to confer on the justices' chief executive the functions of a justices' clerk only so far as it is authorised to do so,
"(either generally or in any particular case) by the magistrates' courts committee for the area which includes that petty sessions area".
In my submission, it is an important and flexible provision. I have already indicated why I believe that it is right because it also allows an existing justices' clerk to be made the chief executive. In addition, in the case where there is more than one petty sessions division it allows the possibility for more than one justices' clerk being made the chief executive. Those options are used at present and I do not think that anyone foresees any reason that that should not be allowed to continue. I beg to move.
Lord Wigoder Lord Wigoder had given notice of his intention to move, as an amendment to Amendment No. 177, Amendment No. 178:
Line 5, leave out ("(either generally or in any particular case)") and insert ("on a temporary basis for good cause").
The noble Lord said: My Lords, perhaps it would be of assistance if I said that I do not propose to move Amendment No. 178 at this stage. The reason for not moving my amendment is that I am deeply unhappy about Amendment No. 177. I was totally persuaded by the arguments at the earlier Committee stage and particularly by the powerful speech from the noble and learned Lord the Lord Chief Justice that it was essential that the administrative functions of the justices' chief executive should be kept wholly separate from the legal functions of a justices' clerk. I am therefore unhappy at the proposal now put forward in Amendment No. 177 by the noble and learned Lord the Lord Chancellor that the magistrates' courts committee may make arrangements,
"either generally or in any particular case",
for that confusion of roles.

439
I can well understand that there might be an emergency, as a result of an outbreak of flu or something similar, when there may be an immediate need for the temporary use of the chief executive, if he happens to be qualified—he may well not be—to sit as a justices' clerk. But I can see no reason for giving the magistrates' courts committee the power to appoint the chief executive and to exercise that power generally.
I therefore tabled this amendment. However, I am now not moving it because it is simply a fallback position, should Amendment No. 177 be agreed to after debate. As an amendment to an amendment, Amendment No. 178 would in the ordinary way fall to be taken before we decided on Amendment No. 177. It seems to me to occupy your Lordships' time quite unnecessarily to debate the merits of a fallback position when we do not know what we will fall back on, if anything. Therefore, it seems to me that the appropriate course is to debate Amendment No. 177 and come to a view on its merits. If it goes forward substantially as it stands, then it might be appropriate for me to re-table Amendment No. 178 at Third Reading as an amendment to whatever we now decide.
Lord Mottistone: My Lords, perhaps it is a question of which way round the matter is dealt with. The noble Lord, Lord Wigoder, spoke about the justices' chief executive being made a justices' clerk. The noble and learned Lord on the Woolsack, when he first introduced Amendment No. 177, spoke about examples where justices' clerks, within the terms of the Bill—and I hope it stays that way—may be appointed justices' chief executives, and it would be that way round. Those are the circumstances which apply on my bench with my magistrates' courts committee, which I hope will remain independent, because we are not big enough to justify the grand new character. For many years the justices' clerk has been effectively the justices' chief executive. I hope that whatever happens to the Bill, that position is left. 1 understood from my noble and learned friend the Lord Chancellor, when he spoke earlier to Amendment No. 177, that he intended to retain that.
Lord McIntosh of Haringey: My Lords, would we not be better advised to debate the motion before the House? The noble and learned Lord moved Amendment No. 177 to which there are amendments on the Marshalled List. The debate would be better if the amendments on the Marshalled List are moved—unless they are not to be moved—and we can then consider the substantive amendment as well as the amendments to it; otherwise, we are not talking to any proposition.
The Lord Chancellor: My Lords, as I understand it, the noble Lord, Lord Wigoder, does not wish to move Amendment No. 178.
Lord Wigoder: My Lords, that is right. The argument put forward by the noble Lord, Lord Mottistone, provides additional force for my not complicating the issue at this stage by seeking to move Amendment No. 178.
[Amendment No. 178 not moved.]
Lord Ackner Lord Ackner moved, as an amendment to Amendment No. 177, Amendment No. 178A:
Line 7, at end insert:
("Before deciding to exercise its powers under this subsection, a magistrates' courts committee shall consult the magistrates for the petty sessional area concerned.").
The noble and learned Lord said: My Lords, perhaps I may do what angels fear to do and at least start the debate on the subject, if nothing else. As I understand it, the amendment put forward by my noble and learned friend the Lord Chancellor provides some flexibility where a magistrates' courts committee wishes the justices' chief executive to have a clerkship responsibility for a single petty sessional area. If his amendment is carried as it stands, it would be possible to appoint a justices' chief executive as justices' clerk for each of the petty sessional areas within the commission area even though there is already in post a justices' clerk for each of the petty sessional areas. In that situation the justices' chief executive would hold all clerkships jointly with the existing justices' clerks. In practice, he would have no particular functions to exercise, as those would be exercised by the justices' clerk at local level within the petty sessional area.
The amendment of my noble and learned friend the Lord Chancellor at page 35 line 39 gives total discretion to the magistrates' court committee to determine what functions, if any, the justices' chief executive as justices' clerk would exercise. The committee is not obliged to exercise those powers, even though the justices' chief executive had been appointed as justices' clerk. If one follows my noble and learned friend's desire to allow such decisions to be made by the magistrates' courts committee, the amendment proposed requires the magistrates' courts committee to consult with the magistrates for the petty sessional areas where it is wished to appoint the justices' chief executive as justices' clerk for that area, and again where it is proposed to determine the functions to be exercised by the justices' chief executive as justices' clerk.
Failure to consult on those issues is likely to bring about a conflict between the magistrates' courts committee and the magistrates for the petty sessional areas, and also between the justices' chief executive and the justices' clerk for the petty sessional areas. In view of the presumption in the Bill that a justices' chief executive shall not have the powers and duties of a justices' clerk, it seems reasonable, we submit, to propose that, where a magistrates' courts committee wishes to give such powers to the justices' chief executive, all those concerned and affected by that decision should have been consulted and that my noble and learned friend the Lord Chancellor should be in a position to have views expressed to him before any determination is made that the justices' chief executive should hold both appointments. That is the purpose of the amendments which we propose. I beg to move.
Lord Simon of Glaisdale: My Lords, I confess that I am in a state of confusion which I trust is not shared by other noble Lords. What my noble and learned friend the Lord Chancellor told us he wanted to do, as the noble Lord, Lord Mottistone, pointed out, was to make

441
it possible for the committee to appoint a justices' clerk as justices' chief executive. That seems to me entirely reasonable.
The difficulty comes when one approaches the problem from the other direction—the desire to appoint the justices' chief executive as a justices' clerk. One runs at once into the constitutional difficulties pointed out so forcefully by my noble and learned friend the Lord Chief Justice at an earlier stage and cogently referred to this evening by the noble Lord, Lord Wigoder, and by my noble and learned friend Lord Ackner. Again, it is entirely reasonable that in an emergency, and for a temporary purpose, the committee or the justices should be enabled to appoint the justices' chief executive as a justices' clerk—but only in an emergency, and only for a temporary period.
On Amendment No. 164 I ventured to say that behind the problem of nomenclature lay the important constitutional problem that we have now reached; namely, that it is essential to keep the executive and the judicial functions entirely apart except to the very limited extent that I indicated.
With respect, it seems to me that we shall not get the matter right this evening. It would, I submit, be far better if my noble and learned friend the Lord Chancellor withdrew his amendment so that the amendment to the amendment would also go. The matter could then be sorted out tidily, keeping the executive and judicial functions separate before the next stage.
The Lord Chancellor: My Lords, I think that many noble Lords have the view that it is perfectly possible for one person to be the chief executive and a justices' clerk at one and the same time. There is nothing whatever wrong with that. In the places where there is only one petty sessional division within the area of a magistrates' courts committee, that would seem to be the proper way to go about it. In other cases, the appointment of chief executive is held by someone who also has the office of a justices' clerk in one of more of the petty sessional division areas within the area of the magistrates' courts committee.
In my submission, it does not matter in which order those appointments are made. It is entirely a matter of convenience. For example, if a particular area had a vacancy for a justices' clerk and at the same time a vacancy for a justices' chief executive, it would be perfectly right to have both of those dealt with at the same time, selecting first a chief executive and then deciding that he should also be the justices' clerk in the petty sessional division area where it arises.
There are other practical matters. One of the most important is the possibility of concentrating the procedures for the recovery of fines in an area covered by a magistrates' courts committee through the arrangement of having a chief executive who is also a justices' clerk with the function in each petty sessional division area of collecting the fines and accounting for them.
I have no difficulty whatever with Amendment No. 178A, proposed by my noble and learned friend Lord
442
Ackner,—nor for that matter with Amendment No. 178B. The only reservation I have is that this is something that would be prescribed, should it be necessary, under the powers given earlier in the Bill to allow the Lord Chancellor to require certain types of communication between a magistrates' courts committee and its benches.
It has to be remembered that the magistrates' courts committee is to be pre-eminently a committee of magistrates who understand their judicial role and are concerned to see that it is properly exercised. As members of the magistrates' courts committee, they are also responsible in a special way for the management of the service. In my submission there is nothing whatever constitutionally wrong about this matter. It is clear that any authority as a justices' clerk that the chief executive may have will depend on his appointment as a justices' clerk, to the extent to which that is required. I understand that, so far as my noble and learned friend the Lord Chief Justice is concerned, he is content with the amendments that I have proposed to Clause 66.
With regard to the amendment of my noble and learned friend Lord Ackner, to which he has spoken, first, any reasonable management arrangement would not appoint somebody to serve a Bench without consultation with that Bench. That would go without saying. To return to my noble friend Lord Mottistone's point, I doubt whether it is necessary to tell the magistrates' courts committee to do that. However, if in practice it turned out that magistrates' courts committees were not doing so, the relevant powers are in the Bill to enable the Lord Chancellor to require it. Therefore, in my submission, this is a proper way to handle the matter. I believe that it is right for me to move Amendment No. 177, as I have done.
7 p.m.
Lord Ackner: My Lords, with regard to Amendments Nos. 178A and 178B, we do wish those provisions to be on the statute book. That is for the very simple reason, as I indicated, that it would be possible to appoint a justices' chief executive as a justices' clerk for each of the petty sessional areas within the commission area, even though there is already in post a justices' clerk for each of those areas.
Our anxiety is that it would give the justices' chief executive the status of a justices' clerk quite unnecessarily through the entirety of that area. It could thus bring in through the back door a chief justice's executive as a chief justice's clerk to cover the whole of that situation. Since my noble and learned friend does not see any objection to the amendments but wonders whether they are necessary, I submit that they are necessary for that very simple reason and that they should be on the statute book. That is why I wanted to move both of them.
The Lord Chancellor: My Lords, there is a degree of confusion here. It may be that I am responsible. I said that Amendment No. 178A contains an obligation which in my view is catered for already under the powers that I have provided earlier in the Bill. Good management would suggest that what is proposed

443
should be done. It is also not wise to impose on good managers obligations which would be self-evident. It is for that reason that I invited your Lordships not to accept Amendment No. 178A. Obviously I did not make that position as clear as I ought to have done. I had understood in my earlier discussions that that particular point had been taken on board by some of my noble friends.
Lord Simon of Glaisdale: My Lords, I should like to follow my noble and learned friend the Lord Chancellor and ask for leave to speak again on this amendment to this amendment. When I spoke earlier, I confessed to confusion. It is obvious from what my noble and learned friends have said—my noble and learned friend used the phrase "a degree of confusion"—that I am not alone in that position. I suggest that we are now in such a state of confusion that the only reasonable course is for my noble and learned friend on the Woolsack to withdraw his amendment ani for us then to sort out the matter before the next stage of the Bill.
The Lord Chancellor: My Lords, with the leave of the House, I am not prepared to withdraw Amendment No. 177. I wish to keep it. I shall now finally put the question as to Amendment No. 178A.
Lord Ackner: My Lords, before my noble and learned friend puts the Question, I believe that I have the last word on my amendment. I feel that I am back in the Crown Court, insisting that I speak last to the jury. Reverting to what my noble and learned friend the Lord Chancellor said a little earlier, he saw nothing against my amendment except that he thought that it stated the obvious.
We have provided a very good reason why the obvious should be on the statute book. If it is obvious it cannot do any harm for it to be on the statute book. Therefore I see no rational basis upon which the amendment should be rejected. It seems to be so much common ground on the Government's side and so clearly seen as necessary on the side of those urging the amendment that there should be harmony all around. Therefore I commend the amendment to the House.
7.8 p.m.
On Question, Whether Amendment No. 178A, as an amendment to Amendment No. 177, shall be agreed to?
Their Lordships divided: Contents, 36; Not-Contents, 79.

Division No. 1

CONTENTS

Ackner, L. [Teller.]

Judd, L.

Airedale, L.

Kilbracken, L

Cooke of Islandreagh, L.

Lawrence, L.

Craigavon, V.

Mason of Bamsley, L.

Donaldson of Lymington, L. [Teller]

McNair, L.

Mottistone, L.

Falkland, V.

Napier and Ettrick, L.

Gould of Potternewton, B.

Pitt of Hampstead, L.

Graham of Edmonton, I

Plant of Highfield, L.

Greenway, L.

Robson of Kiddington, B.

Halsbury, E.

Rodgers of Quarry Bank, L.

Harris of Greenwich, L.

Russell, E.

Hilton of Eggardon, B.

Serota, B.

Hylton-Foster, B.

Shannon, E.

Jenkins of Putney, L.

Simon of Glaisdale, L

444

Slynn of Hadley, L.

Wigoder, L.

Stoddart of Swindon, L

Williams of Mostyn, L.

Tordoff, L.

Winchilsea and Nottingham, E.

White, B.

NOT-CONTENTS

Addison, V.

Lane of Horsell, L.

Annaly, L.

Leigh, L.

Arran, E.

Lindsey and Abingdon, E.

Astor, V.

Long, V.

Balfour, E.

Lucas, L.

Blatch, B.

Lyell, L.

Blyth, L.

Mackay of Ardbrecknish, L.

Boyd-Carpenter, L.

Mackay of Clashfem, L. [Lord

Brabazon of Tara, L.

Chancellor.]

Brougham and Vaux, L.

Macleod of Borve, B.

Burnham, L.

Marlesford, L

Cadman, L.

McColl of Dulwich, L.

Caithness, E.

Miller of Hendon, B.

Camegy of Lour, B.

Mills, V.

Carnock, L.

Morris, L.

Chesham, L.

Mountevans, L.

Chorley, L.

Moyne, L.

Clark of Kempston, L.

Munster, E.

Courtown, E.

Norrie, L.

Cranbome, V

Northbrook, L.

Cumberlege, B.

Oppenheim-Barnes, B.

Dacre of Glanton, L.

Park of Monmouth, B.

Denton of Wakefield, B.

Prior, L.

Digby, L.

Rankeillour, L.

Dixon-Smith, L

Rennell, L.

Elles, B.

Renton, L.

Elton, L.

Rodger of Earlsferry, L.

Ferrers, E.

Seccombe, B.

Flather, B.

Sharpies, B.

Fraser of Carmyllie, L.

Skelmersdale, L.

Gardner of Parkes, B

St. Davids, V

Gisborough, L

Strathclyde, L.

Goschen, V.

Strathmore and Kinghorne, E.

Harlech, L.

[Teller.]

Harmsworth, L.

Tebbit, L.

Harvington, L.

Trumpington, B.

Hayhoe, L.

Ullswater, V. [Teller.]

Henley, L.

Vaux of Harrowden, L.

Hertford, M

Wakeham, L. (Lord Privy Seal.]

Howe, E.

Whitelaw, V.

Jenkin of Roding, L.

Resolved in the negative, and amendment to the amendment disagreed to accordingly.
7.16 p.m.
Amendment No. 177 agreed to.
[Amendments Nos. 178B to 184 not moved.]
Clause 67 [Appointment and removal of justices' clerks]:
[Amendment No. 185 not moved.]
[Amendment No. 186 had been withdrawn from the Marshalled List.]
[Amendment No. 187 not moved.]
Clause 68 [Chief justices' clerks and justices' clerks to be employed under contracts of service]:
[Amendments Nos. 188 and 189 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 190:
Page 37, line 33, at end insert:
("( ) A contract of service as referred to in subsection (I) above shall not have included in it any terms and conditions which are in conflict with any of the provisions in section 69 of this Act.").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 190 I shall speak also to Amendment No. 195. Amendment No. 190 merely states that a contract of service, as referred to in the subsection, shall not have included in it terms and conditions which are in conflict with any of the

445
provisions of Section 69 of the Act. Noble Lords will recall that Section 69 was designed to ensure that the independence of the magistrates, which must include the independence of their legal adviser, the justices' clerk, was not diminished.
My noble and learned friend stated in Committee that he could do nothing right because he had put in Clause 71 in order to safeguard the independence of the magistrates and he was then criticised. The initial criticism levelled at my noble and learned friend the Lord Chancellor was that the Government had accepted that protection was, as a result of the provisions of the Bill, reasonably necessary.
I know that my noble and learned friend never accepted that the Bill diminished the independence of the magistrates or their clerk but he—and not the Opposition or the Cross Benchers—was responsible for producing Clause 71, now Clause 69. What we have done in Amendment No. 195 is totally to redraft Clause 69, because we take the view that Clause 69 as it stands does not identify or set out with sufficient particularity how the justices' clerk is to be safeguarded when exercising his judicial function.
Clause 69 remains, as described in Committee by the noble Lord, Lord McIntosh, opaque. It states:
"When exercising the functions specified in subsection (2) below or giving advice to justices of the peace in an individual case".
The phrase "in an individual case" is very odd. It means that the justices' clerk cannot be in any way interfered with by anyone when advising on a case which is about to take place or is taking place but once it is over he can be told, "On no account should you allow your justices to adopt the line that you took yesterday". That is why a protection which the particular case provides makes a protection illusory.
The protection provided by the reference to the functions in subsection (2) was, as pointed out by the noble Lord, Lord McIntosh, in Committee, quite unsatisfactory because the regulations which can be made under Section 144 of the Magistrates' Courts Act 1980 can be changed from time to time. It is, in words I adopt from the noble Lord, Lord McIntosh, a moving target. That is no way to provide protection on a matter as vital as this.
So what I have sought to do—no doubt the proposal contains many drafting errors—is, if I may coin a phrase, to go back to basics and decide what it is that the justices' clerk should have protection for. I have spelt out that he should have protection when,
"giving advice to justices of the peace, whether in the course of training, or in discussions relating to law, practice or procedure, or otherwise, on the exercise of their judicial functions or discretion, either in respect of a particular case or in relation to cases generally".
In Committee my noble and learned friend said that the question of training was a difficult one. Was it administrative or was it part of the judicial or quasi-judicial functions of the magistrates' clerk? I think the answer is very simple. I had the privilege of being a presiding judge on the Western circuit for four years, which means I was responsible to the Lord Chief Justice, with my co-presiding judge, for the efficiency
446
and effectiveness of our circuit. We would arrange sentencing conferences from time to time in order to get consistency of approach. The suggestion that the courts' administrator—the senior civil servant on each circuit —should have been entitled to instruct those who were addressing the judges on their sentencing training and matters connected with it would never have been contemplated. The administrator was not there in any way to interfere with the content of the training. Of course it was very convenient to have an administrator who would put at one's disposal for the training session a well-heated court room with the appropriate facilities which would necessarily go with it. That is an administrative function; that is what he was there to do in relation to that particular matter. Training is not a matter upon which the justices' clerk should at any stage be interfered with.
Next, the justices' clerk should have protection when,
"exercising any judicial power or discretion given to him".
The noble and learned Lord the Lord Chief Justice, when addressing your Lordships on Second Reading, spelt out various activities which are given to the clerk himself. He said:
"For example, in certain cases they can grant adjournments, renew bail, extend the time allowed to pay fines and (very importantly) grant or refuse legal aid. They also have important responsibilities in family cases under the Children Act. Moreover, the trend is towards devolving to them further judicial functions. Soon they will also be empowered to commit actions by consent to the Crown Court and to issue distress and attachment of benefits warrants".—[Official Report, 18/1/94; cols. 475-76.]
All those activities were identified by the Lord Chief Justice as requiring the protection which should be properly accorded to the justices' clerk on the basis that those were his judicial functions.
The justices' clerk should also have protection when,
"training justices of the peace and court staff, and preparing the rota of magistrates and court clerks".
In carrying out all those functions, as the new clause sets out in subsection (1),
"a justices' clerk shall not be subject to the direction of the magistrates' court committee, the chief justices' clerk or any other person".
We have spelt out, with the particularity which is totally lacking in Clause 69 as drafted, the protection which we submit clearly the justices' clerk is entitled to for the benefit not of himself but of the administration of justice so that independence of the judiciary is protected.
In subsection (2), because of my noble and learned friend's comment that the boundary line is very difficult between what is judicial, what is quasi-judicial and what is administrative, we have set out what should be deemed, for the purpose of the judicial functions and discretion in relation to the justices' clerk, to be included in those functions. We say,
"the date and time on which any criminal or civil case shall be heard".
That may be said to be administrative. I can only answer my noble and learned friend the Lord Chancellor in this way. When the Beaching Commission proposals were accepted and the Executive took on the administration of the circuit system the question arose as to the lists prepared by the administrators. There were some judges, just like some who visit restaurants, who like a

447
menu put in front of them and the obligation to make any choice thereby removed. There were other judges, of whom I was one, who reckoned that they knew more about what should go into an effective list than a listing clerk because by looking at the papers they would be able to get a good idea as to whether a case would fight, and if so for how long, or whether it would settle. Accordingly, the Lord Chief Justice, Lord Widgery, had to rule. He ruled that the settling of a list is a judicial function. The ultimate responsibility for the list was the responsibility of the judge. In the same way the ultimate responsibility for the list is the responsibility of the justices together with their clerk.
The amendment continues:
"(b) whether it is in the interests of justice to grant legal aid".
That is one of the examples given by the Lord Chief Justice when he addressed the House in Committee. Again, that was an area which your Lordships said was difficult. We have solved the difficulty by deeming this to be a judicial function so that puts an end to it if the justification for putting it in that category is accepted.
We ask:
"(c) whether to offer summary trial to a defendant charged with an either way offence".
One would have thought that that was clearly a judicial or quasi-judicial function. But to put it beyond all doubt, it is deemed so to be.
Subsection (2) (d) states:
"whether to accept a plea of guilty to an information or admission to a complaint".
We thought that that was very necessary because there is pressure on throughput; on the cost per case; on cash limitation which all tend to produce a situation where the interests of justice take second place to the interests of satisfying the Treasury that no stone is left unturned in order to save a penny or two here or there.
Paragraph (e) of the amendment states:
"whether to accept a plea bargain whereby the prosecutor will withdraw or offer no evidence in return for a binding over or a plea of guilty to a less serious offence".
We wanted to avoid. pressure being put on the justice's clerk saying "You must get your magistrates to accept pleas even though they think it is quite unsatisfactory. You must get them to initiate plea bargaining even though there are many who think that that is not the way to administer justice. You must do all that because you add to the throughput and you reduce the cost per case".
Finally, paragraphs (f) and (g) ask,
"whether to transfer a criminal case for hearing or sentence to another court, and
enforcing payment of fines and compensation".
That is the justification for the redrafting of Clause 69 spelling out the protection which we say is necessary and desirable and doing away with the current Clause 69, which is opaque, unspecified and gives one no indication where this much needed protection is to be found. I beg to move.
7.30 p.m.
Viscount Tenby: My Lords, I speak in particular to Amendment No. 195 in the name of my noble and learned friend Lord Ackner. I shall be very brief because he has spoken admirably and succinctly and indicated all the main areas of importance in this matter. Although the list in the amendment may be added to or it may be
448
open to suggestions in that regard, the list itself is one with which no one in the legal profession could argue in terms of the importance of preserving legal independence.
When two divergent interests overlap; namely, those of justices' clerks and their Benches on the one hand, and MCCs and their justices' chief executives on the other, it is surely important that the parameters should be firmly and unequivocally established. It is generally accepted (is it not?) that justices' clerks must be responsible to their Benches for all judicial matters. Accordingly, it seems not unreasonable to set out, as this amendment seeks to do, what such matters are.
Perhaps the House will allow me to give an example as regards training. My noble friend has already referred to it, although I shall refer to it again very briefly from a much less exalted position than the one he occupies. In my experience, which is not typical, but I suspect the experience of others is, training is conceived and executed by the justices' clerks and by a training sub-committee of magistrates, usually selected by the Benches themselves, but possibly channelled for administrative purposes through the magistrates' courts committee.
It may be appropriate, as part of his or her administrative function, for the justices' chief executive to organise a training programme; but it would not be appropriate for any bias or emphasis to be given to it to take account of anxieties currently being expressed by government. For example—and this is only a random example, but perhaps topical—there may be a feeling at large that greater use should be made of custodial penalties. But that—permissible, though perhaps not desirable for ministerial interview on television—noble Lords would almost certainly agree can have no place in a training syllabus.
The matter has already been fully covered by my noble friend and we have already covered much ground, it must be said, constructively today so I shall not take the point any more. I look forward with keen interest to what the noble and learned Lord the Lord Chancellor has to say on the subject.
Lord Renton: My Lords, subject to what my noble and learned friend may say, I am against Amendment No. 190, but in favour of Amendment No. 195. Perhaps I may explain why. Amendment No. 190 is unnecessary because if a contract of service includes terms and conditions which are in conflict with the provisions of Clause 69 or of almost any statutory provision affecting it such a contract would be void for illegality. Therefore there is no need to put that into the Bill. That is the law and always has been.
As regards Amendment No. 195, I am broadly in agreement with it. The functions referred to in the earlier part of clause 69 are functions,
"conferred by rules[of court] made in accordance with … the Magistrates' Courts Act 1980 by virtue of [various sections) of this Act"
That mean that the very important matters as to what constitutes interference with judicial discretion in the circumstances which are now being considered, depend on secondary legislation. It is also legislation by reference. It is better to try to avoid legislation by

449
reference if we can without making a Bill too lengthy. But when it is legislation by reference to secondary legislation, that is a further argument against it. It is better to have these important principles in the Bill instead of being set out in the indirect way in which they are set out at present in Clause 69. Therefore, I hope that my noble and learned friend the Lord Chancellor will be sympathetic to Amendment No. 195.
Lord McIntosh of Haringey: My Lords, I was very concerned about the debate which we had in Committee on this matter, and about the suggestion that because it is difficult to define the difference between judicial and administrative functions, we should not try. We have been debating a Bill which, in the police part of it, we have assumed that we can make a distinction between the operational responsibilities of the chief constable and the policy responsibilities of the police authority. It is not specified in detail as the noble and learned Lord has attempted to do; but it is assumed that there is a distinction that can be made.
The problems with Clause 69 as drafted are not only those referred to by the noble Lord, Lord Renton. It deliberately restricts judicial functions to advice to justices of the peace in an individual case. Whatever else may be wrong with the clause, that is very seriously wrong. That is what the amendment of the noble and learned Lord, Lord Ackner, complex and detailed though it may be, seeks to deal with.
I hesitate to refer to my pathetic little amendment, Amendment No. 191, which perhaps should have been grouped with Amendments Nos. 190 and 195. It suggests that instead of the words "in an individual case" there should be inserted,
"other than on non-judicial matters".
That is a simple way of dealing with the same issue and will, I have no doubt, cause the full weight of legal opinion to fall on my head. However, that is what we are trying to do. We are trying to ensure that the administrative head, the justices' chief executive, as he is now to be called, does not interfere in the relationship between justices' clerks and the members of their benches on judicial matters. Restricting the provisions to individual cases, as Clause 69 does, is simply not acceptable.
Lord Mottistone: My Lords, I rise briefly to say that I strongly support Amendment No. 195, which also stands in my name. To my mind, the detail of it is pretty accurate and I do not think that it needs to be mucked about with. One often says that the principle is right, but I think that the fact is right in this case. I hope that my noble and learned friend will give the amendment a very fair wind. I agree with my noble friend Lord Renton that, for the reasons that he gave, Amendment No. 190 is probably unnecessary, but I hope that Amendment No. 195 will receive all possible support.
Earl Russell: My Lords, I should like to join cursorily in the chorus of approval for Amendment No. 195. We are still dealing with the confusion of judicial and executive powers in that "Cheshire cat" of an office —no matter by what name it might be called—that we
450
are now discussing. I heard what the noble and learned Lord said about Amendment No. 177: that he saw nothing wrong with the amount of confusion of power in those offices. I can understand why the noble and learned Lord said that. His own office is a living refutation of the doctrine of separation of powers. I use it when talking to Americans to explain why we in this country do not have separation of powers as they understand that.
However, I should like to put before the noble and learned Lord a tradition that goes right back to the 17th century and to Chief Justice Coke. It is that the amount of mixture of power with which the office of the noble and learned Lord is trusted is one which neither can nor should be delegated to this extent to an ordinary subject. The law trusts the noble and learned Lord with that; it does not trust his inferiors. It might assist us if we could keep that distinction clear.
Lord Donaldson of Lymington: My Lords, I am sorry to cast a discordant note about Amendment No. 195 and do so on only a very limited ground. I do not like subsection (2) (e) which states:
"Judicial functions and discretion shall, in relation to justices of the peace, be deemed to include …
whether to accept a plea bargain whereby the prosecutor will withdraw or offer no evidence in return for a binding over or a plea of guilty to a less serious offence".
When I was a trial judge I took the view that it was not for the judge to decide whether he would or would not accept a plea. My noble and learned friend Lord Ackner thinks that that is plain wrong. He always did it. I am not sure that that is entirely a sequitur, but there we are. I took the view that it was for the prosecution to decide with what to proceed. I am troubled at the concept that magistrates—
Lord Ackner: My Lords, I am talking about plea bargaining.
Lord Donaldson of Lymington: My Lords, I hear my noble and learned friend interjecting to say that he is talking only about plea bargaining. I do not like plea bargains at all in any shape or form, but let us let that go. I do not see how magistrates could become involved where the prosecution was prepared to offer no evidence and the accused was going to say in open court, "I am quite prepared to be bound over". That does not seem to be something in which magistrates should be involved. I should be extremely sorry to see the amendment, if it includes that paragraph, being inserted in the Bill. If those provisions are to be included, it would be better if they could be looked into in more detail. Subject to that, however, I have no objection to the amendment and apologise again for entering a discordant note.
7.45 p.m.
The Lord Chancellor: My Lords, this is an important and quite difficult subject. My noble friend Lord Renton has taken some objection to Amendment No. 190, and I should like to say a word about it. My noble and learned friend Lord Ackner tabled a somewhat similar amendment in Committee. I said that I was perfectly content with the policy behind it, but expressed a doubt about whether it was necessary. I

451
must have done so more clearly on that occasion than earlier this evening because I think that it was understood. I therefore invited parliamentary counsel to draft an amendment to embody that policy, and to advise. I gave that amendment to my noble and learned friend for his consideration, but in view of the fact that he had proposed an amendment redrafting Clause 69, he did not want to move the amendment that I had suggested to him.
Perhaps I should point out that there is something slightly wrong with the wording of Amendment No. 190. It should seek at page 37, line 33, to insert certain words into Section 26A of the Justices of the Peace Act 1979, not into Clause 69 as drafted. The appropriate reference is a minor matter, but we need to keep in view the fact that we should be talking about an insertion into another Act.
On the substance of Amendment No. 195, which is the important amendment, I should like, first, to take up what the noble Earl, Lord Russell, said. There is no doubt that these days a justices' clerk has an advisory function in relation to the justices and that large administrative functions also form part of his office. In the bigger clerkships, justices' clerks may not be in court all that much; whereas in smaller clerkships they may be in court a great deal. There is quite a variation, but there are some 10,000 staff in the magistrates' courts service throughout England and Wales, and a comparatively small number of very talented justices' clerks who are responsible for managing large staffs. Every justices' clerk has both an administrative and a legal or advisory function in relation to the justices. Therefore, a degree of responsibility in both the advisory and administrative area is inevitable in the present context unless one separates the advisers from the administration so that the advisers only advise the justices. As far as I know, that has never been the practice. It has certainly not been the practice in recent years and it is not the practice now.
In Amendment No. 195, my noble and learned friend proposes to change the whole of Clause 69, altering the basic theory on which I have approached the question. This is not the first time that I have had to address myself to this matter. We have had to do that in two areas and with a degree of precision. I referred to both in Committee. The first relates to the function of the ombudsman. When I arrived in your Lordships' House as Lord Chancellor, a dispute was taking place between the committee in the House of Commons that is responsible for the Parliamentary Commissioner for Administration and the Lord Chancellor and his judicial colleagues about the extent of the responsibility of the Parliamentary Commissioner for Administration. Section 110 of the Courts and Legal Services Act 1990 was the result. Section 110 states that the,
"administrative functions exercisable by any person appointed by the Lord Chancellor as a member of the administrative staff of any court or tribunal shall be taken to be administrative functions of the Lord Chancellor's Department".
But any decisions or work to be done on the instructions, expressed or implied, of a judge were of course excluded from that.
Again, in 1991 the remit of the Home Affairs Select Committee of the other place was extended by
452
Parliament to include the policy, administration and expenditure of the Lord Chancellor's Department. It was considered sufficient to exclude the consideration of individual cases in order to safeguard legal or judicial functions. My noble and learned friend Lord Donaldson of Lymington will remember that matter.
In Standing Order 130 of the other place, the Select Committee's remit is described as excluding consideration of individual cases and appointments. Before I go to the detail of the amendment tabled by my noble and learned friend Lord Ackner, I want to try to indicate why I believe that that is the correct principle. The principal function of a justices' clerk is to advise his or her magistrate. In giving advice on a case, Clause 69 as drafted provides that,
"a justices' clerk shall not be subject to the direction"—
I take the justices' clerk as the example, because it is not just the justices' clerk, there are three heads—
"of the magistrates' courts committee, the chief justices' clerk"—
now the chief executive—
"or any other person".
So his or her advice to the justices in an individual case is not subject to that kind of direction. This is the heart of the matter: someone attempts to tell a justices' clerk what to do, that is translated into action in relation only to the individual case.
My noble and learned friend said, "Well, immediately after the case is decided, someone could say, 'You shouldn't have done that"'. By that time it is too late to affect the case that has already passed, and in any future case the justices' clerk is protected by the fact that no direction, even in that form, is to apply to him or her in relation to any advice he or she gives. Therefore because someone may be told afterwards that he or she should not have done something is no reason for thinking that this method of formulation is not correct. In my view, this is the type of formulation required. I have indicated that I am interested in considering further how it might be elaborated. The principle of dealing with the matter on the basis of an individual case is fundamental to understanding the nature of the concept.
I shall deal with the position under the amendment. I shall not consider it all in detail, but shall take some parts in some detail to show how the method suggested by my noble and learned friend Lord Ackner and those who have supported him is inappropriate. Subsection (1) provides that a justices' clerk should not be subject to direction on training magistrates. However, the statutory position is that it is the magistrates' courts committee that has the responsibility for the training of magistrates, not the justices' clerk. Unless the magistrates' courts committee instructs the justices' clerk to do training, he or she will have no part in it, so an instruction from the magistrates' courts committee to the justices' clerk to undertake training is essential for the purposes of the justices' clerk having any part in training.
The next aspect that I want to mention is that it is open to magistrates' courts committees to use people other than justices' clerks. It is common to use justices' clerks from time to time, but magistrates' courts committees are by no means confined to using justices'

453
clerks. They can use outside trainers and all types of specialists if they want to, in relation to the training of magistrates. As I said in another connection, the magistrates' courts committee of course consists, in all but a few cases, entirely of magistrates. So surely it is right that they should be in charge of the training and should specify how it is to be done.
My noble and learned friend referred to the part he played in conferences on sentencing. The judges organise their sentencing studies. Sometimes—certainly this is done now —they invite outside people to help them with their studies. From the point of view of organising training, the magistrates' courts committee is much more in the position of the judges. Some of the judges appoint—I have some part in that appointment —the Judicial Studies Board, with a Lord Justice as chairman. They direct what is to happen in the way of training. The magistrates' court committee is, for that purpose, and under the statute, the authority for training magistrates, ensuring that training is provided and monitoring it. Accordingly, that is an inappropriate matter to have in the clause, and I use it as an example only.
There is another point about training. The noble Earl, Lord Russell, I am sure, would wish to be free to teach students as he wishes in relation to a particular subject matter. On the other hand, someone has to organise the curriculum. It would not do if undergraduates were all taught by people merely in accordance with their own interests, because there might well be duplication or omission. So instruction about the nature of the curriculum and the way in which training is to be organised is surely something that it is proper for a magistrates' courts committee to organise. I do not believe that any self-respecting person who is a trainer, whether a justices' clerk or not, would expect to be directed as to the precise content of his or her lectures; but arrangements—who will talk about sentencing, procedure, fact finding and so on—and matters of organisation are proper to be included as part of the administration. Surely arrangements about discussions relating to law, practice or procedure, or otherwise, are another similar matter. Someone has to organise the discussions. Directions are required as to the content of the discussions, and so on. I use those as illustrations to show how difficult it is to proceed in the way that this clause does and on the principle that it uses.
I do not wish to weary your Lordships with more examples in detail. Paragraph (c) refers to,
"training justices of the peace and court staff'.
Unless people receive directions as to how to teach the use of the computer to court staff I find it hard to believe that that will be well done. Surely the training of court staff involves a great deal of administration.
Paragraph (d) is important. It refers to,
"preparing the rota of magistrates and court clerks".
The clause then provides:
"a justices' clerk shall not be subject to the direction of the magistrates' court committee, chief justices' clerk or any other person".
If that goes its full distance it will make the magistrates' courts service unworkable. As part of the operation of appointing magistrates, I direct that magistrates should
454
sit generally for a minimum and maximum number of sittings each year. One therefore does not have the professional lay magistrate, if that is not a contradiction in terms. I have also been in districts in which there have been complaints that, for convenience, the justices' clerk may be inclined to take the magistrates who happen to be nearer to the court, or perhaps particular magistrates whom the justices' clerk in question wishes to have sitting. Surely all your Lordships who have experience of being magistrates know that each magistrate has an important part in preparing the rota. Above all, the Bench chairman has an important part in connection with the rota. So much for the first branch of new Clause 30A.
On that type of formulation similar difficulties arise in relation to subsection (2). Paragraph (a) refers to:
"the date and time on which any criminal or civil case shall be heard".
In so far as that is an operation that will work, it is based on undertaking it in a particular case. But who will decide what time in the morning the court starts? Will it be a judicial function or discretion, not subject to the magistrates' court committee, to decide at what hour in the morning the court should start? In my submission, that would not be conducive to a well managed service.
There are other considerations such as the manner in which, in the aggregate, cases are listed. One of the common complaints that I have received is that some courts ask everyone who is to appear for the whole day to arrive at 10 o'clock in the morning. That may be convenient for the court and the magistrates, and it may be convenient for the justices' clerk, but it is certainly not convenient for many of those who attend. Surely the magistrates who constitute the magistrates' court committee should have the right to deal with that. I am certain that most of your Lordships who have been magistrates will have found yourselves in a situation in which that kind of thing has been discussed generally as part of the management arrangements for the court.
I mentioned legal aid on the previous occasion. One of the important issues about legal aid is that the late Lord Elwyn-Jones carried an amendment to put into the legal aid legislation an appeal from grant or refusal by magistrates' courts to a local committee of the legal aid authority. Therefore, there is an appeal from this decision to the legal aid authorities.
My noble and learned friend Lord Donaldson of Lymington made a particular point with regard to paragraph (e). If one is trying to list all of these it is hard to know where to stop. It is difficult to list these exhaustively and I could give a number of examples. In my submission, the approach of trying to list what is judicial and what is not is bound to lead to severe difficulty. It is complicated and long. I believe that the real principle is that in advising in a particular case, or in exercising a particular function, the justices' clerk should be free from being subject to directions.
8 p.m.
Lord Renton: My Lords, before my noble and learned friend sits down will he be so good as to deal with the anxiety expressed about legislation by

455
reference to secondary legislation under previous statutes? It arises a: the top of page 38 in the proposed subsection (2) of the new Clause 30A.
The Lord Chancellor: My Lords, I am sorry, I should have done so earlier in response to my noble friend's inquiry. The problem is that functions of a character that should be protected can be created under secondary legislation. Undoubtedly, the legal aid regulations, for example, are of that character. It is open to the Lord Chancellor to transfer the grant of criminal legal aid from the courts to the legal aid board. On the previous occasion I indicated that that is not a change I would make lightly, unless there were strong circumstances forcing me to it. Decisions which should be protected on the line of the principle that I have sought to explain in relation to my Clause 69 can arise in relation to functions granted under secondary legislation.
Perhaps I may take one example. Let us suppose that under the Police and Magistrates' Courts Act the powers of justices' clerks are extended in the future. I take the view that there may be scope for that, although the justices' clerks and the justices do not always agree on precisely where that boundary should be. I take the view that it might be good to have some extensions in the future. Unless there is a provision of this kind, those powers would not be protected because one cannot tell at this time what they are. It is a future exercise of secondary, subordinate legislative power. In my submission, where that kind of thing is possible it is necessary to have a statutory provision which is apt to include it.
Lord Ackner: My Lords, I am pleased to be able to excise the discordant note which caused my noble and learned friend Lord Donaldson a little trouble. If one reads paragraph (e) as it is drafted, rather than stopping half-way through, it reads,
"Judicial functions … shall, in relation to justices of the peace, be deemed to include—
(e) whether to accept a plea bargain whereby the prosecutor will withdraw or offer no evidence in return for a binding over".
How anyone who reads that as a single sentence can reach the conclusion that that is not a judicial function I do not know. It is, of course, perhaps more years than I since my noble friend Lord Donaldson has been to a magistrates' court. I happen to know that accepting binding over is a regular feature. It is a judicial function, it cannot be done without the magistrates agreeing to it and it is often they who initiate it.
The other part of the paragraph is even simpler. It continues:
"or a plea of guilty to a less serious offence".
One has only to recall the case of the Yorkshire Ripper, in which the Attorney-General offered to accept a plea of manslaughter by reason of diminished responsibility. The trial judge would not accept that. There was a trial and the Yorkshire Ripper was convicted of murder.
Paragraph (e) is an excellent example of the two judicial functions. I was surprised to find that my noble and learned friend the Lord Chancellor accepted the problems of my noble and learned friend Lord Donaldson without further consideration.
456
Perhaps I may now return to the main point. Of course, the magistrates' courts committee has an obligation to make provision for training. It does not dictate the content of the training. My amendment sets out that:
"a justices' clerk shall not be subject to the direction",
of anybody when—and these are the important words:
"giving advice to justices of the peace, whether in the course of training, or in discussions relating to law".
If I am wrong, I can delete the "not" and my noble and learned friend the Lord Chancellor would then have spelt out:
"a justices' clerk shall be subject to the direction of the magistrates' courts committee, the chief justices' executive or any other person when giving advice to justices of the peace, whether in the course of training, or in discussions relating to law, practice or procedure, or otherwise".
I find that startling but that is the consequence of what my noble and learned friend the Lord Chancellor suggests or—and I read on:
"advice … on the exercise of their judicial functions or discretion, either in respect of a particular case or in relation to cases generally".
Therefore, on the assumption that I am wrong, the Lord Chancellor would have, as I understand it, this proposition:
"a justices' clerk shall be subject to the direction of the magistrates' courts committee, the justices' chief executive or any other person when advising on the exercise of their judicial functions or discretion, either in respect of a particular case or in relation to cases generally".
Again, that is an astonishing proposition.
My noble and learned friend says that that will be so in a particular case. But on what basis is the justices' clerk not to be protected when advising justices on their judicial functions in relation to cases generally? On that basis, a justices' clerk could be told, "In future, you are to tell the justices that, although the law is that a case must be proved beyond reasonable doubt, do not worry too much about that. The balance of probability is good enough". That is what the justices' clerk could be told. I accept that somebody would interfere and say that that is monstrous; but what is monstrous is that he should set foot in that direction to direct the justices' clerk at all on that subject.
I believe that I have said enough to indicate that I have the greatest difficulty in following the rationality of my noble and learned friend's objection. But, with characteristic optimism, I did light upon his observation that he would consider further how Clause 69 as it now stands may be elaborated. It clearly needs elaboration.
If the Government admit that a provision is required to safeguard the independence of judges and their advisers, albeit that they are lay justices, then it is difficult to think of a stronger example where that protection should be spelt out with clarity so that one could see what the protection was, where it might be overstepped and where it ended. Therefore, at this late stage, I do not propose to press the amendment. Of course I shall consider what my noble and learned friend the Lord Chancellor said, apart from his adoption of what my noble and learned friend Lord Donaldson said with regard to paragraph (e). I hope that my noble and learned friend the Lord Chancellor will pursue his elaboration.

457
With regard to Amendment No. 190, as always, one is bowled centre stump by my noble friend Lord Renton. It was a platform of the Government's approach to this legislation that magistrates' clerks and now magistrates' chief executives should be subject to fixed term contracts and performance related pay. There was strong objection to that on the basis that it was contrary to the protection of the independence and autonomy of the magistrates' clerk.
I tabled Amendment No. 190 because Amendment No. 195 provides for the protection of the justices' clerk against directions in exercising any judicial power or discretion given to him. It occurred to me that, despite the fact that there is no longer any obligation in the legislation, the contract might specify a fixed term and performance related pay. I should have submitted that that is an indirect way, by the back door, of directing a justices' clerk in the exercise of his own judicial power or discretion—or the possibility of it. Amendment No. 190 was tabled in order to cover that rather concealed situation. However, I shall not press that amendment. In the light of all that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
Clause 69 [Independence of chief justices' clerk, justices' clerk and staff in relation to legal functions]:
[Amendment No. 191 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 192:
Page 37, leave out lines 38 to 40.
On Question, amendment agreed to.
[Amendments Nos. 193 to 195 not moved.]
Clause 71 [Organisation of justices' clerks in inner London area]:
[Amendment No. 196 not moved.]
Earl Russell Earl Russell moved Amendment No. 196A:
Leave out Clause 71 and insert the following new clause:
Appointment of justices' clerks in inner London area
"( ) (1) Section 37 of the 1979 Act (which obliges the committee of magistrates for the inner London area to appoint a principal chief clerk and chief clerks, together with such senior deputy chief clerks, deputy chief clerks and other officers as may be necessary) shall cease to have effect, save that the magistrates' courts committee for the inner London area shall appoint a chief justices' clerk and one or more justices' clerks for each petty sessional division of that area and one or more justices' clerks for the youth courts and family proceedings courts for that area and the City of London.

(2)Any person who, immediately before the commencement of subsection (1) above, holds office as principal chief clerk for the inner London area, shall be taken to have been appointed chief justices' clerk by the magistrates' courts committee for the inner London area in accordance with Section 24D of the 1979 Act.1

(3)Any person who, immediately before the commencement of subsection (1) above holds office as a chief clerk in the inner London area or for the youth courts or family proceedings courts for that area and the City of London, shall be taken to have been appointed by the magistrates' courts committee for the inner London area as a justices' clerk in that area in accordance with Section 25 of the 1979 Act.

(4)Persons holding office as senior deputy chief clerk and deputy chief clerk at the commencement of this Act shall not be dismissed by the magistrates' courts committee for the inner London area without the approval of the Lord Chancellor, and
458
before approving the dismissal of any such clerk, the Lord Chancellor shall consider any representations made to him by the clerk.

(5)Nothing in Section 26A(1) to (4) of the 1979 Act shall have effect in relation to a person to whom subsections (2) or (3) above apply.

(6)Any person to whom subsections (2) or (3) above apply shall hold and vacate office in accordance with the terms of his appointment.

(7)Any reference in any instrument or document to a chief clerk for any petty sessional division of the inner London area or for the youth courts or family proceedings courts for that area and the City of London shall have effect in relation to any time after the commencement of subsection (1) above as a reference to a justices' clerk for that petty sessional division or, as the case may be for those courts.").

The noble Earl said: My Lords, this amendment originates with the Inner London Magistrates' Clerks' Association. I owe the noble and learned Lord some apologies with regard to this amendment. First, I should have tabled it in Committee but it was not ready. Secondly, I should have written to the noble and learned Lord to explain the points a little earlier. However, the Inner London Magistrates' Clerks' Association held its annual general meeting and changed officers half way between Committee and Report stages. Therefore, the amendment reached me for the first time at four o'clock yesterday. It should have gone to someone with more experience in these matters than myself. Adding. those facts to the fact that I know that I am standing between the House and its dinner, I shall not be long. I feel as nervous as a new father, not knowing which end to hold.
Previously the inner London magistrates' courts, which between them handle 10 per cent. of the magistrates' courts business in this country, have powers resting on Section 37 of the Justices of the Peace Act 1979. The people in inner London are concerned that the replacement of that section is in some points defective because in inner London there is not a purely divisional structure; for example, the youth and family courts are separate from the divisional structure. Also, the Bill does not appear to have taken account of the fact that in some areas such as Westminster, there are two chief clerks to deal with the press of business.
It is feared in inner London that the Bill may have inadvertently made some of its courts illegal. However, I am sure that that was not the intention of the Bill. If there is any technical defect in drafting, I am sure that the noble and learned would be the first to want to look at it again. The objective is simply to continue the status quo and have the Bill so drafted that it should remain legal.
I am aware that the amendment is defective in one or two points, but it was not so when it was drafted. It is in relation to the City of London, regarding what was said on Amendment No. 154—which, incidentally I was glad to hear —and, of course, it is in relation to the justices' chief executive. All I want the noble and learned Lord to do is to take the amendment away and consider it before Third Reading. If there is any technical ground for concern, perhaps he will give it his attention and decide what ought to be done. I beg to move.
The Lord Chancellor: My Lords, I am grateful to the noble Earl, Lord Russell, for what he said. I have had an opportunity to consider the amendment to some

459
extent since he tabled it. In my view, some aspects of the amendment are unnecessary. For example, the amendment places a requirement on the inner-London magistrates' courts committee to appoint a justices' chief executive (as will be the case when we have dealt with all the amendments) but such a requirement is already in place in the new Section 24D(1) of the Justices of the Peace Act 1979 inserted by Clause 66 of the Bill. There are also some other technical points that I wish to consider further.
However, I recognise that the main element of the amendment is to preserve the right of those at present holding offices of senior deputy chief clerk, or deputy chief clerk to appeal to the Lord Chancellor in the event of their dismissal from that grade by the committee. I am entirely happy to accept that proposal. My officials have advised the chairman of the inner-London Magistrates' Clerks Association who raised the point of my views. One of the worries that was expressed to me by the inner-London service was that, if some of the suggestions being advocated against my main proposals were accepted, they would run counter to what is presently done in inner London and changes would then have to be made.
In future, I envisage that appointments as deputy justices' clerk in inner London will, as elsewhere, be a matter in which the Lord Chancellor takes no part. It is an illustration that, far from centralising, I am seeking to do the opposite. It would also be consistent for those new post holders to have the same arrangements in the event of their dismissal as deputy justices' clerks elsewhere in other parts of the country. However, I appreciate that for deputy and senior deputy chief clerks at present employed in the service, the position is different and that their rights of appeal should be preserved.
1 would be content to ensure that all those in the grade of deputy chief clerk or senior deputy chief clerk, immediately before the commencement of the relevant provisions of the Alt, would retain a right of appeal to the Lord Chancellor in the event of their dismissal from that grade. I believe that it may be possible to do that under the transitional provisions. However, I have indicated quite plainly that it is my intention that that should be preserved for existing holders. In the light of that explanation, I hope that the noble Earl will feel able to withdraw the amendment.
Earl Russell: My Lords, I am most grateful to the noble and learned Lord for those assurances. Therefore, in the light of them, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 73 [Administrative and financial arrangements for magistrates' courts]: [Amendments Nos. 197 to 200 not moved.]
Clause 76 [Inspectors of the magistrates' courts service]:
Lord Mottistone Lord Mottistone moved Amendment No. 201:
Page 43, line 17, at end insert:
460
("( ) The members of the Inspectorate referred to in subsection (1) shall include a significant number of persons with previous experience as magistrates and as justices' clerks, some of whom may be on temporary assignment.").
The noble Lord said: My Lords, I made reference to the matter in Committee when I emphasised the importance of the inspectorate having the confidence of those it inspected. I took the point that my noble and learned friend made about the value of the inspectorate being independent. However, that does not mean that it should be totally inexperienced in professional matters which it is required to inspect. Accordingly, I suggest that it is important that the Bill should clearly state that some members of the inspectorate must have some practical experience in the matters that are being inspected. My amendment suggests a way in which that could be achieved. I hope that my noble and learned friend will be able to view the amendment with a certain amount of sympathy, even if he does not like the exact wording as it stands. I beg to move.
Viscount Tenby: My Lords, I should like to speak briefly to the amendment moved by the noble Lord., Lord Mottistone. In Committee, the noble and learned Lord confirmed that the inspectorate would consist of 17 members, three of whom would be magistrates and one a deputy clerk. I believe that we may safely infer from that that the remaining 13 members would be entering, so to speak, virgin territory when they start to assess court performance.
I am not against the latter in principle. It is often the case that those free of preconceived ideas or who have not been answerable to the traditions and disciplines of a certain way of life can the more easily cut through the prejudices and any lack of imagination which they may encounter. However, it occurs to me that restricting those with hands on experience to a total of four out of 17 is carrying the theory to extremes. Accordingly, I ask the noble and learned Lord the Lord Chancellor whether there is a case for increasing the representation of court-experienced people in the inspectorate.
My other point is more administrative in nature but is, nevertheless, loosely related. Who is to instruct those newcomers to the service, presumably by means of a crash course in view of the time factor? How will the course be structured? If the imbalance is to be so pronounced as between experienced and non-experienced inspectors, I suggest that those questions are of some importance. Finally, but still on the breakdown of numbers, the imbalance already referred to must mean that some teams will have no members with court experience. Alternatively, will steps be taken to ensure that that is not the case?
The Lord Chancellor: My Lords, I sought to make clear from the early days of the inspectorate that recruitment to it should be by open competition and that successful candidates should be accepted on their merits. The inspectorate's purpose is to help ensure that the magistrates' courts provide a high standard of public service with efficient use of resources. It is vital that the inspectorate is able to recruit people of the highest calibre to fulfil that important task, and that, in fulfilling that aim, it should be able to look at candidates from as

461
wide a pool as possible. The recruitment of inspectors has been directed by the chief inspector; rigorous and well-established methods have been used to provide what I believe is a high quality, well-balanced team. As my noble friend Lord Mottistone said, I hope that the team will command the respect of the service.
I do not in any sense underestimate the potential contribution to the work of the inspectorate by those who are or have been involved in the service. As regards members of the inspectorate already recruited, I believe that I have already given the details of those who belong to the service in one way or another. In addition, as I believe I explained in Committee, the chief inspector has taken an important initiative. She has suggested to the service that the inspection team should be supplemented by serving members of the service on short-term secondment, obviously from a different part of the service. I understand that there has been a positive response from the service. That measure, added to the knowledge and variety of expertise already in the inspection teams will, I believe, provide a very satisfactory balance.
That approach has much credibility and likelihood of success. I hope that your Lordships will allow us to continue with that flexibility which has been used in connection with the way in which the inspectorate has been set up. I have every confidence in the chief inspector as one who will wish to make a real success of this, combining knowledge of the service inspected with a sense of independence of the service. If I may say so, I believe that the quality of advice that the chief inspector gave us in relation to the earlier amendment of my noble friend Lord Mottistone about the involvement in the question of amalgamation indicates the sort of level of sensitivity to the demands of her task as regards such a responsibility.
While I shall certainly do my best to ensure that the inspectorate has sufficient service knowledge and experience to be respected in the service, it must be flexible and we must from time to time proceed as the best people available come forward in answer to advertisements.
8.30 p.m.
Lord Mottistone: My Lords, I thank my noble and learned friend and I take this opportunity to thank the noble Viscount, Lord Tenby, for his great support on many amendments at both stages of the Bill. I hope that we shall have a chance to work together again. I thank my noble and learned friend the Lord Chancellor for his remarks. I appreciate that it might be asking too much to include a provision along the lines I have suggested in the Bill at this stage. I hope that what he has said materialises and furthermore that it continues to do so through the succeeding years long after my noble and learned friend has gone on to something better. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 77 [Powers of inspectors]:
Lord Ackner Lord Ackner moved Amendment No. 202:
Page 44, line 4, 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 or discretion.").
The noble and learned Lord said: My Lords, this amendment relates to Clause 77 which is sidelined "Powers of inspectors". In subsection (2) there is provision specifically made that the inspector is not entitled,

"(a) to be present when a magistrates' court is hearing proceedings in private, or

(b) to attend any private deliberations of the justices of the peace".

Amendment No. 202 suggests that two further prohibitions should be added to the subsection; namely,
"(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 or discretion".
This, again, is an attempt to ensure that the independence of the judiciary is not interfered with by the Executive. I appreciate that that is an uphill task as regards a large proportion of this legislation. This was the subject of an amendment by the noble Lord, Lord Mottistone, and an amendment by myself in Committee. I think that we have taken the best out of both amendments, which means taking most of the amendment of the noble Lord, Lord Mottistone, and less of mine, and amalgamating them together. This is the product—hence our joint names to this amendment.
In regard to the first of the additions proposed in Amendment No. 202 at paragraph (c), at Committee stage the noble and learned Lord the Lord Chancellor, while doubting that it was at all necessary said,
"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"—[Official Report, 22/2/94; col. 613.]
I hope that my noble and learned friend the Lord Chancellor will agree that what is in that paragraph is perfectly straightforward and sensible. It does not prohibit attending any meeting: it says that there is no right to attend the meeting without being invited to do so. Paragraph (d) of Amendment No. 202 states:
"to comment on or seek to influence the exercise of a judicial function or discretion".
I should have thought that that speaks for itself. My noble and learned friend has said that that provision is quite unnecessary because it goes without saying. I understand that sentiment without agreeing with it. I would still say that in this Bill this type of provision is essential.
We started the Second Reading by pointing out to what extent the independence of the judiciary, in relation to the justices themselves and in relation to their legal advisers, was open to be prejudiced. Our submissions were accepted to a fairly significant extent. That is why we believe that this is a Bill where, when it comes to independence, specific provision should be spelt out, as indeed in an opaque manner the Government have sought to do in Clause 69 which has been the subject matter of my earlier criticisms. I beg to move.
Lord Mottistone: My Lords, I of course strongly support this amendment. I am delighted that the noble and learned Lord, Lord Ackner, has tabled this amendment again, although I must admit that my noble and learned friend expressed strong preference for leaving the matter alone. Somehow I do not think that that is quite right in this circumstance. I believe we need a little more detail, along the lines that we have suggested in this clause, which indicates the restraints that are necessary for the inspectorate. It is easy at this stage of the game to say that everything will be all right because people are so splendid now, they are totally under control and they are new and trying hard. However, as time goes on, people may become a little presumptuous as to what they can do. That is borne out by the paragraphs already in the subsection, which indicate that there needs to be a bit of restraint on the inspectorate.
If the matter was as easy as all that, as my noble and learned friend the Lord Chancellor tried to indicate at col. 613 of Hansard of 22nd February 1994—the noble and learned Lord, Lord Ackner, has quoted the relevant sentence —it would not have been necessary to have included the paragraphs in the subsection that are already in the Bill. should have thought that one must remember what happens as time goes on. One wants to make the primary legislation as comprehensive as it needs to be to cover this matter. I believe we should give this matter further thought.
Lord Harris of Greenwich: My Lords, I have expressed a view on this matter before. I find myself in complete agreement with the noble and learned Lord, Lord Ackner. I can understand the reluctance of the noble and learned Lord the Lord Chancellor on this matter. but for the reasons given by the noble Lord, Lord Mottistone, it seems to me that it would be highly desirable to incorporate this amendment in the Bill. I support the amendment.
The Lord Chancellor: My Lords, as regards the first part of the amendment, in my submission it is a management committee—the magistrates' courts committee—that is in question here. I cannot see why the inspector should be debarred from magistrates' courts committees in the way proposed in the amendment unless he is "invited by the Chairman". As I have said before, I would expect that the magistrates' courts committee would think it wise to invite the inspectorate. However, the magistrates' courts committee is a management committee with responsibilities for management. We are not talking about the private deliberations of the justices in a particular case. I personally feel that it would be wrong to make it possible to hide anything in relation to the management of a magistrates' courts committee from the inspectorate. I would not for a moment think that magistrates' courts committees would want to do that, but if they did, I would suspect that the reason might not be a good one.
As regards the second part of the amendment, one has to remember that the whole function of the magistrates' courts service is to provide support for the judicial function. The better it is managed, the better the judicial function will be exercised. We all know that justice
464
delayed is justice denied. The management of the justice system is therefore extremely important as regards whether or not the system is delivering justice. My submission to your Lordships is that to include paragraph (d) in its present form might improperly limit what the inspectorate is there to do, which is of course to inspect the administration of the system which is aimed at delivering justice. Accordingly I would invite your Lordships not to agree to this amendment and to leave matters as they are in the Bill.
Lord Ackner: My Lords, as a result of this amendment not being accepted, it would appear that my noble and learned friend is saying that an inspector will be entitled to attend a magistrates' courts committee meeting when the chairman of the committee has said in terms, "I do not want you to attend". That i s the result of saying, "You are not entitled to this". It goes even further. The result of negativing paragraph (d), as I understand my noble and learned friend, is not because it goes without saying, but the reverse. An inspector is entitled to,
"comment on or seek to influence the exercise of a judicial function or discretion".
That is as astonishing as my noble and learned friend's comments on part of my amendment to Clause 69. I cannot believe for one moment that that is the thought-through attitude of the Government.
Because it is late and we have all been deprived of any protein intake for a long time, I shall not press the amendment in the hope that nourishment at a later stage will enable my noble and learned friend the Lord Chancellor to recognise the extraordinary situation which results from the observations which he has addressed to your Lordships. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 78 [Default powers]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 203:
Page 44, line 24, at end insert:
("( ) Before making an order under subsection (2) below, the Lord Chancellor shall give a written warning to the magistrates' courts committee specifying the default or defaults to which the order relates.").
The noble and learned Lord said: My Lords, this amendment has been brought forward as a result of points made by my noble and learned friend Lord Ackner when discussing an amendment tabled by my noble friend Lord Mottistone. I had intended that these procedures would be followed in any event, but it is right that they should be specified in the Bill. I beg to move.
Lord Mottistone: My Lords, I thank my noble and learned friend.
On Question, amendment agreed to.
Schedule 7 [Magistrates' courts: minor and consequential amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 204:
Page 69, leave out lines 42 to 45 and insert:
("1.—(1) Section 12 of the 1979 Act (travelling, subsistence and financial loss allowances) shall be amended as follows.
(2) In subsection (5) for paragraph (b) there shall be substituted—

465
"(b) in relation to the inner London area—

(i)the council of the inner London borough which is or includes the petty sessions area for which the justice acts, or

(ii)where the justice acts for a petty sessions area which is partly included in two or more inner London boroughs, the councils of those boroughs;".

(3) After that subsection there shall be inserted—
"(5A) Where by virtue of subsection (5) (b) (ii) above an allowance under this section is payable jointly by two or more inner London boroughs, the manner in which it is to be borne by each of them shall be determined by agreement between them or, in default of agreement, by the Lord Chancellor." ").
The noble and learned Lord said: My Lords, Amendment No. 204 is a technical amendment consequential on provisions in Part IV of the Bill. The arrangements in the inner London service are such that some petty sessional divisions cross borough boundaries. Amendment No. 204 will enable the payment of justices' clerks' allowances under Section 12 of the Justices of the Peace Act 1979 to be apportioned between two or more inner London boroughs.
Amendments Nos. 205 and 206 replace the amendments to Sections 23 and 24 of the 1979 Act which make provision for the review by the relevant magistrates' courts committee of the division of a non-metropolitan county, metropolitan district, the inner London area or any of the outer London boroughs into petty sessional divisions. The amendments substitute for references to county, district, inner London area or outer London borough references to a magistrates' courts committee area. This is in order to make provision for the eventuality that, following amalgamation of committee areas under Clause 60 of the Bill, the altered committee area may no longer relate to a single county, district or London borough.
Amendment No. 207 makes absolutely clear that the preceding amendments to Sections 23 and 24 of the 1979 Act do not affect the existing provision that the City shall not be divided into petty sessional divisions.
Amendment No. 211 adds the new post of justices' chief clerk to the list in Schedule 1, paragraph 1, group B of the Juries Act 1974 of those ineligible for jury service.
Amendment No. 212 relates to the Road Traffic Offenders' Act 1988. Section 82 of that Act provides that each local authority is responsible for funding the activities of the justices' clerks for a petty sessions area. Amendment No. 212 has the effect of ensuring that the section will work where (under the 1979 Act, as amended by the Bill) the salary of a justices' clerk for a petty sessions area is an expense of the magistrates' courts committee for that area and there may be more than one local authority contributing to the expenses of each committee.
Amendment No. 221 adds two further items to the list of statutes repealed. Amendments Nos. 222, 223 and 224 relate to appeals consequential on earlier government amendments. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 205 to 207:
466
Page 70, leave out lines 31 to 41 and insert:
("(a) the words from "acting" to "boroughs" shall cease to have effect, and
(b) for the words "the county, district or borough" there shall be substituted the words "their area".
(3) In subsection (2) for the words "the county, district or borough, as the case may be" there shall be substituted the words "their area".
(4) In subsection (4) for the words "a non-metropolitan county or metropolitan district or any of the outer London boroughs", in both places where they occur, there shall be substituted the words "an area".").
Page 70, leave out lines 44 to 49 and insert:
("(2) In subsection (1) (a)—

(a) for the words "council of the" there shall be substituted the words "council of every",

(b) the word "outer" shall be omitted, and

(c) for the word "concerned" there shall be substituted the words "which includes all or part of the area".

(3) In subsection (2)—

(a) for the words "council of the" there shall be substituted the words "council of every",

(b) the word "outer" shall be omitted, and

(c) for the word "concerned" there shall be substituted the words "which includes all or part of the area".").

Page 71, line 42, at end insert:
("In section 42 (no petty sessional divisions in the City) for the words "section 41 above" there shall be substituted the words "this Act".").
The noble and learned Lord said: My Lords, I have already spoken to Amendments Nos. 205, 206 and 207. With your Lordships' approval, I beg to move the amendments en bloc.
On Question, amendments agreed to.
8.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 208:
Page 72, line 21, leave out ("in").
The noble and learned Lord said: My Lords, Amendments Nos. 208 and 209 deal with the arrangements for compensation for loss of office. The noble Lord, Lord McIntosh of Haringey, tabled an amendment at Committee stage on this issue and I undertook then to bring forward my own amendment. I agree with the noble Lord that authorities responsible for compensation payments which apply to the magistrates' courts service should be eligible for grant in all cases.
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 applying more generally across the public sector under the Local Government (Compensation for Premature Retirement) Regulations 1982.
At present, compensation paid under the 1982 regulations ranks for grant, but compensation payments made under the 1978 regulations do not. The amendment provides that compensation payments under the 1978 regulations are to rank for grant. I beg to move.
Lord McIntosh of Haringey: My Lords, I should like to express my appreciation. This was an anomaly which was clearly not intended. I am grateful to the noble and learned Lord for putting it right, as indeed for so much in the consideration of the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 209:
Page 72, line 21, after ("authorities)") insert ("shall be amended as follows.

467
(2)In subsection(1)—

(a)in paragraph (b) after the word "7" there shall be inserted the words "or 24", and

(b)for the word "and" immediately following that paragraph there shall be substituted

"(bb) of their functions under any regulations having effect by virtue of paragraph 13(1) of Schedule 1 to this Act; and"
(3)").
The noble and learned Lord said: My Lords, I spoke to the amendment with Amendment No. 208. I beg to move.
On Question, amendment agreed to.
[Amendment No. 210 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 211 and 212:
Page 73, line 4, at end insert:
("Juries Act 1974
In Schedule I to the Juries Act 1974, in Group B of Part I (persons ineligible) for the entry beginning "Justices' clerks" there shall be substitu: ed—
"Justices' chief clerks, justices' clerks and justices' clerks' assistants." ").
Page 73, line 18, at end insert:
("Road Traffic Offenders Act 1988
In section 82 of the Road Traffic Offenders Act 1988 (accounting for fixed penalties in England and Wales), for subsection (2) there stall be substituted—
"(2) Where, in England and Wales, a justices' clerk for a petty session:; area comprised in the area of one magistrates' coins committee ("the first committee") discharges functions in connection with a fixed penalty for an offence alleged to have been committed in a petty sessions area comprised in the area of another magistrates' courts committee ("the second committee")—

(a) the paying authority or authorities in relation to the second committee must make to the paying authority or authorities in relation to the first committee such payment in connection with the discharge of those functions as may be agreed between all the paying authorities concerned or, in default of such agreement, as may be determined by the Lord Chancellor, and

(b) any such payment between paying authorities shall be taken into account in determining for the purposes of section 59 of the Justices of the Peace Act 1979 the net cost to the responsible authorities of the functions referred to in subsection (I) of that section.

(2A) In subsection (2) above "paying authority" and "responsible authority" have the same meaning as in section 55 of the Justices of the Peace Act 1979." ").
The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 211 and 212 en bloc. I have already spoken to the amendments.
On Question, amendments agreed to.
[Amendment No. 213 not moved.]
Clause 84 [Commencement and transitional provisions]:
Baroness Trumpington Baroness Trumpington moved Amendments Nos. 214 and 215:
Page 46, line 10, leave out ("subsection (2)") and insert ("subsections (2) and (2A)").
Page 46, line 18, at end insert:
("(2A) So far as they relate to the power to make orders under the section inserted by section (Membership of police authorities etc.) above, the provisions of

(a)section (Membership of police authorities etc.), and

(b)Schedule 2,

shall come into force 0:1 the passing of this Act.").
The noble Baroness said: My Lords, these amendments have already been spoken to. With the leave of the House, I beg to move them en bloc.
On Question, amendments agreed to.
Clause 86 [Extent]:
Baroness Trumpington Baroness Trumpington moved Amendment No. 216:
Page 47, line 28, leave out (", 39 and 40") and insert ("and 39").
The noble Baroness said: My Lords, I beg to move.
On Question, amendment agreed to.
Schedule 8 [Repeals]:
[Amendments Nos. 217 to 219 not moved.]
Baroness Trumpington Baroness Trumpington moved Amendment No. 220:
Page 75, column 3, leave out line 9.
The noble Baroness said: My Lords, I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 221 to 224:
Page 80, line 8, at end insert:
("60 & 61 Viot. c. 26. The Metropolitan Police Courts Act 1897. Sections 3 and 4. 14 & 15 Geo. 6 c. 65. The Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951. In section 48 the words "or justices' clerk".").
Page 80, line 23, column 3, leave out from (-section") to ("the") in line 25 and insert ("12(7)").
Page 80, line 34, column 3, at end insert:
("In section 23, in subsection (1) the words from "acting ' to "boroughs".").
Page 80, line 35, column 3, after ("24") insert ("in subsections (1) (a) and (2), the word "outer" and").
The noble and learned Lord said: My Lords, Amendments Nos. 221 to 224 were spoken to with Amendment No. 204. I beg to move the amendments en bloc.
On Question, amendments agreed to.

Consolidated Fund (No. 2) Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Morley Bill, and read a first time.

Prevention of Terrorism (TemporaryProvisions) Act 1989 (Continuance)Order 1994
8.50 p.m.
The Lord Advocate (Lord Rodger of Earlsferry)The Lord Advocate (Lord Rodger of Earlsferry) rose to move, That the draft order laid before the House on 14th February be approved [8th Report from the Joint Committee].
The noble and learned Lord said: My Lords, it is now 20 years since the first prevention of terrorism legislation was considered by this House. It was introduced as a temporary measure and, in he Government's view, should still be regarded as such, for

469
we continue to cherish the hope that the day will dawn when the exceptional powers which it contains will no longer be necessary.
The Joint Declaration which was made by the Prime Minister and the Taioseach on 15th December offered new hope for peace in Northern Ireland. For that reason it was very widely welcomed in this country and in those many other parts of the world that take a close interest in Northern Ireland. It is therefore a cause of great disappointment that far from declaring a halt to their campaign of violence, the terrorists have continued to inflict suffering and misery on the people of Northern Ireland and Great Britain. In the period since the Joint Declaration was made on 15th December, nine people have died and 55 have been injured at the hands of terrorists. It is clear, therefore, that we need to maintain our defences against the terrorist threat. The Prevention of Terrorism Act forms an essential part of those defences throughout the United Kingdom.
Coming first to Northern Ireland, terrorism continues to cast a dark shadow over daily life. Eighty-four people were killed there in some 730 incidents last year, and 834 were injured. The high levels of sectarian violence which led to the frightful attack in the Shankhill Road in October, and the appalling massacre in Greysteel which was carried out in reprisal, are particularly worrying. In Great Britain we recall the terrorist outrage in Warrington last March which took the lives of two young children and caused terrible injuries to a number of other people simply going about their ordinary daily lives. Not long afterwards the bombing in the City of London claimed another life and yet more injuries and caused massive damage to property. Last year in Great Britain there were 49 terrorist incidents in total, in which three people died and 124 were injured. More recently, of course, there was the series of attacks on Heathrow Airport. This was a truly contemptible piece of work which simply served to show that the Provisional IRA are perfectly willing to carry out crimes which endanger the lives of ordinary people of all nationalities.
The police and the security forces in Great Britain and Northern Ireland have, however, achieved a considerable measure of success against the terrorists. In Northern Ireland this year alone, 70 people have been charged with serious terrorist offences, 18 of those with murder or attempted murder. During the course of last year nearly 400 people were charged with terrorist offences in the Province. The security forces also recovered more than 250 weapons and four tonnes of explosives. If that sounds a very large quantity of explosives, it is a sobering fact that more than six-and-a-half tonnes of explosive were made safe by bomb disposal officers.
In Great Britain, 22 people were charged with serious terrorist offences last year. Thirteen people were convicted of such offences and sentenced to very long terms of imprisonment. Several arrests during the year undoubtedly helped to disrupt terrorist activity on the mainland, and large quantities of weapons and explosives were discovered here too. Such achievements do not come easily. They are hard won by the
470
courage, determination, skill and vigilance of the police and others upon whom we rely to protect us from the menace of terrorist crime. Fourteen members of the security forces lost their lives in the fight against terrorism last year. Many more were injured, some very seriously. We owe them all an immense debt of gratitude. We also owe it to them to ensure that they have at their disposal all the powers and resources which they need to carry out their difficult, and often dangerous work.
The powers which are available under the Prevention of Terrorism Act have continued to play a major part in the fight against terrorism. Without those powers the police would find it much more difficult to prevent attacks and to investigate terrorist crime. The provisions of the Act are, however—and I emphasise this—exceptional in nature. They give to the police and to the Secretary of State powers beyond those which could ever be justified in the absence of the exceptional threat from terrorism. For that reason it is particularly important that the operation of the Act is reviewed each year by a distinguished and independent person. His report greatly assists Parliament in its consideration of the continuance order. The House will know that this year the report by Mr. John Rowe, Queen's Counsel, was placed in the Library on 11th February. He was the distinguished chairman of the Bar Council and he follows in the footsteps of the noble Viscount, Lord Colville of Culross, to whom we continue to be indebted for discharging this responsibility in the previous seven years.
Mr. Rowe concluded, as did his predecessor, that the powers in the Act continue to be needed. Following a careful scrutiny, during which he had full access to all the records, including the intelligence material on which many decisions are based, he was satisfied that the powers had been exercised with great care and discretion. This will not come as any surprise to those of your Lordships who have followed these matters over the years. Only the highest standards are acceptable in the exercise of the exceptional powers contained in the Act. Two of those powers, however, have been criticised from time to time by those who maintain that they are not justified even as a response to the grave threat from terrorism. I refer to the powers of arrest and detention and the power of exclusion. I shall deal with them in turn.
The Act gives the police the power to arrest a person on reasonable suspicion that he or she is involved in terrorism. This power is not available, of course, in the Police and Criminal Evidence Act and the equivalent Acts in Scotland and Northern Ireland. Those Acts provide the power of arrest only when a specific, identifiable offence has been, is being or is about to be, committed. The Prevention of Terrorism Act, on the other hand, gives the police a pre-emptive power to arrest at the preparatory stage of the commission of terrorist crimes. This point is crucial to the understanding of the purpose of the Act. It is essentially a preventive measure. If the police had to wait until they had evidence that a specific, identifiable terrorist offence was planned, they would, in many cases, be too late and lives would be lost as a result.

471
A person who his been detained under the Act may be held for questioning by police for a maximum of 48 hours. If the police require more time to complete their investigation, they may apply to the Secretary of State who may authorise continued detention of up to a maximum of seven days in all. That is designed to allow the police enough time to determine whether sufficient admissible evidence can be assembled to convert the reasonable suspicion on which the arrest was based into a charge for a specific terrorist offence. Terrorist investigations are among the most complex which the police conduct. In his 1987 review, the noble Viscount, Lord Colville, published a list of grounds upon which extensions of detention may be justified. Forensic tests, for example, are particularly important in terrorist investigations. But they take some time to complete.
Your Lordships will be aware that the power to extend detention on the authority of the Secretary of State required the United Kingdom to derogate from Article 5(3) of the European Convention on Human Rights, following a ruling on the Brogan case that the convention would normally require a suspect to be brought before a judicial authority within four days. The Government took the step of derogation with very great reluctance and, having taken it, immediately proceeded to undertake a careful study of whether it would be possible to introduce a judicial element into the procedure for authorising extensions of detention. The object was to try to find a procedure which would be compatible with the provisions of the convention but which would not weaken the effectiveness of the response to terrorism.
Unfortunately, the Government were unable to identify a satisfactory procedure of that kind. We came up against the same problems which led each of the noble Lords who have in the past carried out major reviews of the Act—Lord Shackleton in 1978; Lord Jellicoe in 1983; and Lord Colville in 1987—to conclude that the issues involved are simply not justiciable. As my noble friend Lord Ferrers reported to this House in November 1989:
"Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect."
The Government concluded at that time that the present arrangements were the best that could be devised. Again, this reflected the conclusions which had already been reached separately by the noble Lords who, as I have already mentioned, carried out their own comprehensive reviews of the Act. In May last year, in the case of Brannigan v. McBride, the European Court of Human Rights upheld the right of the United Kingdom to derogate from Article 5(3) of the Convention in respect of Northern Irish terrorism.
The second of the Act's major powers which some
472
would like to see ended, is the power of exclusion. At the end of 1993, 71 people were subject to an exclusion order made by the Home Secretary, a reduction of eight since 31st December 1992, and indeed the lowest figure at the end of any year since 1975. A further nine orders made by the Secretary of State for Northern Ireland were in force. In his report, Mr. Rowe rightly acknowledges that opinion as to the value of exclusion orders is not unanimous, but he also notes that there are strong arguments in favour of their retention. In the Government's view these are decisive.
The police regard exclusion as a useful preventive measure. It disrupts the movement of terrorists in both directions across the Irish Sea and it reduces the pool of personnel on whom the terrorists can safely draw. 'The police do not believe that the alternative measures that have been suggested—such as mounting surveillance operations on all those who would at present be excluded—are realistic.
In conclusion, I say to your Lordships that the Government will not shirk their responsibility to deal with terrorism. We simply must not give any ground for belief that we are weakening in our determination and resolve to stamp out terrorism. We are determined to ensure that the police and others engaged An the fight against terrorism have the powers that they need to do the work which we entrust to them. Those powers are contained in the Act which your Lordships are invited now to continue in force. I beg to move.
Moved, That the draft order laid before the House on 14th February be approved [8th Report from the Joint Committee].—(Lord Rodger of Earlsferry.)
9.4 p.m.
Lord Mason of Barnsley: My Lords, I support the continuation of the Prevention of Terrorism Act. Since our last debate on these orders there have been 730 terrorist incidents in Northern Ireland and 84 people have been killed and 826 injured; arid in over 55 incidents in Great Britain, three people have been killed and 124 injured.
I believe that the Prevention of Terrorism Act is totally necessary. Without it, terrorism by the Provisional IRA would run rife throughout the Province. More than likely the Protestant paramilitaries, under the umbrella of the Ulster Volunteer Force, would react. We have had a taste of that in recent times in Northern Ireland. The Prevention of Terrorism Act at least helps to keep a lid on that. Over 350 persons have been charged with terrorist related offences over the past 12 months; over 250 guns and rocket launchers have been recovered; and over 12,000 kilograms of explosives have been found and neutralised. thanks to the diligence of the security forces in the Province, backed by the provisions of the Act. One can just imagine what an escalation of terrorism there could be with those men, guns and explosives back on the streets. Even in Great Britain, 22 people have been charged with serious terrorist offences in the past year and large quantities of terrorist equipment have been discovered. In that regard perhaps the Minister will report upon the increasing liaison between MI5 and the Scotland Yard

473
anti-terrorist squads in these operations and what one hopes is the creation of a network of intelligence gathering and joint operations.
I know that there is concern about the extension of time that a suspect can be held under these orders. But the results show that of those held for up to five or seven days, 25 per cent. in Northern Ireland were charged. Even in Great Britain, of those held 17 were charged with serious terrorist offences. Without the extension more terrorists would now be active. As one who has given consent to extensions—the Secretary of State is involved in each case—I am fully aware of the particular requirement of holding suspects for more than three days after interrogation to check forensic evidence. Time is needed to ascertain fingerprint evidence on arms and explosives used in terrorist activity to enable the charge to be laid. Even the exclusion orders enable the RUC to keep a watch on, and some control over, suspects, some of whom have been involved in terrorist related activity.
Some people complain about the orders. The libertarians complain that we have to seek derogation from the European convention on these matters. No doubt Spain, with the Basque terrorists, and Germany, with the Bader-Meinhof gang, would not have had any difficulty with the convention either. The libertarians must understand that we forfeit a little liberty to save and secure a lot of freedom. That is the crux of anti-terrorist legislation.
Even since the Downing Street declaration there have been over 140 terrorist incidents in Northern Ireland and Great Britain. There have been nine deaths and 55 people have been injured. It would have been hundreds more if the mortar bombs had exploded at Heathrow. The Provisional IRA no longer singles out members of the security forces and Government Crown buildings alone for death and destruction. The Heathrow attacks could have killed and maimed hundreds of innocent civilians. There have been attacks on places where hundreds of civilians congregate, any one of which could have involved mass murder: Victoria Station, the City and major airports. With such examples, how can we not support the PTA? Indeed, has not the time arrived to look afresh at what more can be done to deal more effectively with these crazed criminals? They have no political support. They have no backing from the public in Great Britain, Northern Ireland or the Republic. Politically, the Government have nothing to fear in taking a tougher line against terrorism.
Since the Joint Declaration, the Government may well have given the impression of adopting a laid back policy. The Provisional IRA has ignored their call to renounce violence and indeed has stepped up its activity. People believe that it has cocked a snook at both governments. Should it not now be shunned and progress be made on constitutional change? Should not we move ahead and totally ignore the Provisional Sinn Fein?
One course would be to announce that Dublin, Great Britain and Northern Ireland talks will re-commence —although I recognise the problems with the pending elections. There is a need for the smack of firm
474
government in isolating the Provisional Sinn Fein now. To make political progress we cannot allow that insignificant political minority to hold to ransom the two governments. We do not have to abandon the Joint Declaration but we cannot have the continuation of a political vacuum.
Another course could be taken; namely, to give a clear indication to all the party leaders in the Province that there is no united Ireland in the offing and none in the foreseeable future. The Taoiseach knows that only too well. Her Majesty's Government could go ahead with talks on constitutional change involving more devolved democratic powers to local government within the Province. After all, it is part of the United Kingdom. The majority will decree that for years to come. So let us put it on the same democratic plane as Scotland and Wales. Indeed, the Northern Ireland Select Committee is a useful first step.
Meantime, why do we not step up anti-terrorist activity? I have always believed that the harassment of suspected terrorists pays. There should be frequent swoops on men and women known in the terrorist groups. We should use the extension powers to the full. Let their friends flee across the border. We can await their return and swoop again. If Dublin wants to help, let the Garda and Irish army co-operate with our security forces in each operation on the border. Meantime, internment is on the shelf, ready to be used. But selective detention is lawful within the PTA for three, five or seven days, and it should be extensively used.
I refer once again to an issue I have raised many times in this House. Let the Government consider introducing a national identity card scheme. Put a face to a name and a name to a face. The country is now prepared for it more than ever. In tackling terrorism, we should be using all the modern devices of our age. The police and the security forces would welcome its introduction. The innocent will not mind. Only the guilty will walk in fear. There is too much hesitation on these matters, considering how much more we could do to tackle terrorism seriously.
Finally, I should like to place on record my appreciation of the unstinting efforts of the Royal Ulster Constabulary—a dedicated team of officers and men without parallel in the police services of the world. For 25 years they have been combating terrorists within their own land. They are constantly under threat, suffering death and injuries year after year. Their morale and dedication to law and order have to be admired by all. We owe them a great debt.
The professionalism of our Armed Forces and all services has been superb. They have shown skill, fortitude and patience, constantly returning for tour after tour in the Province. I am pleased that their efforts are now being recognised with the minting of a new medal, the accumulated service medal, for which I have campaigned over many years. If the Minister can help, I should like to be brought up to date as to the position of the new medal and how many of our servicemen are likely to benefit. In that regard especially, I hope that the Royal Ulster Constabulary will be considered for some similar recognition for their years of service.

475
Mr. J. J. Rowe QC was the independent person called upon to examine the operations of the Act. He said that the Act should continue in force and added, "I have no doubt about that." That goes for me too.
9.15 p.m.
Viscount Colville of Culross: My Lords, I should like to mention how much I welcome the report by Mr. John Rowe. It has fulfilled all my expectations that a fresh pair of eyes would light upon new aspects of this subject; indeed there are matters contained in the report which I wish his predecessor had thought fit to explore. Now, noble Lords have the benefit of what he has done.
I wish to confine myself to one aspect, the first of the two major issues which the noble and learned Lord, Lord Rodger of Earlsferry, touched upon in his speech. I do not look upon this matter as one that should be brought into party politics: it is far too important. As far as I am concerned it is entirely coincidental that it was raised in a debate in another place on 9th March by the honourable gentleman the Member for Sedgefield. He wanted to involve the judiciary in the system of extensions of detention under the legislation. He stated that the purpose of an element of judicial control was not just to provide a process of legal reasoning or logic but that the judicial element would be independent of the executive and that the liberty of the subject should not be taken away by a politician but by the court. That was a point that was made very forcefully to me in 1987 when I carried out the major review of the Act. I found that view to be extraordinarily attractive. I therefore went back to first principles and, in the report that I wrote Command 264, I developed my own views on that matter in Chapter 12. I am afraid that I came to the same conclusion that has been reached by others, that it was not possible to do it. Then came the Brogan case and the Government also thought the matter through, from first principles. The noble and learned Lord, Lord Rodger, has quoted from the Written Answer in another place by the noble Lord, Lord Waddington (as he now is), about the position that the Government took after their re-examination.
I was disappointed that the Written Answer did not go into a little more detail. Therefore, in the report that I wrote on the Act in 1990, I looked at the United Kingdom legal systems because after a little research it seemed a very strange thing that we in this country should be rapped over the knuckles by the court in Strasbourg for keeping people in detention for up to seven days, when in France—and I have seen a number of different periods quoted—it is at least four months. As far as I know, the crew of the ship "Eksund", which brought from Libya most of the semtex which is still being used to blow us all up, and most of the ammunition, guns and other weapons which are being used to kill our security forces and our civilians, were held for the best part of two years before they were brought before the courts. Strasbourg has never said a word about that situation and I wondered what was different about the United Kingdom system.
I looked at the Scottish and the Channel Island systems of criminal justice, both of which have a strong civil law tradition. It appeared to me that, with a little
476
adaptation, it would be possible to accommodate the system to what, in the eyes of Strasbourg, constitutes a court for the purposes of extensions of detention. However, I am bound to say that, when one came to the common law system in England, Wales and Northern Ireland, the exercise appeared to be quite hopeless. That, of course, is the situation as it is today, and it is the one with which we are still confronted.
I therefore wish to say a little more about the way in which the judges might be involved in this process and the reasons why I believe it would be wrong to do so. We are talking of the liberty of the subject, the point made in another place. We are talking about files which are brought forward by the police asking for extensions of detention. I am, I think, in the unique position of having for seven years seen all the files in England, in Scotland and in Northern Ireland by which these applications were made. That is not only the ones that succeeded, because they were not all followed through by extensions of detention. I do not think anyone else has seen all of the files. I shall certainly not say what is in them but I can tell your Lordships this much: they contain information about sources; about the progress of an investigation; about the leads which the police wish to follow up, all of which Mr. Rowe deals with on pages 10 and 11 of his report. Leaks or disclosure of this information could cause almost irrevocable damage to the police investigation and, further than that. real peril to people's lives.
If we are talking about putting that kind of material before the judiciary, we are talking about what is called an ex parte application, an application to the judge by one side which the other side does not know about. That is not an unknown matter in the English criminal justice system but it means that there can be no disclosure to the detainee's representative or, of course, to the detainee himself. It also means that there is no possibility of a judge giving a reasoned decision as to why he has granted an extension, if that is the power he is given. If he does not give a reasoned decision, no appeal is possible. One cannot get an appeal on its feet if one does not know upon what grounds the decision has been taken in the first place.
Secondly, that also means that one could not take a decision of this kind to judicial review because one would never be able to produce enough material to get leave from the single judge in the first instance on the ground that the person who took the decision was not being reasonable. People have tried judicial review on extensions of detention in the hands of the Home Secretary. They have not succeeded. Nor would they succeed if it was done by a judge.
In any event, if one looks at the context of a decision to extend detention, it seems highly undesirable that appeal procedures should intervene after the first 48 hours. What is supposed to happen? Are the police supposed to stop their investigation while the appeal is heard? Is the detainee supposed to be released so that he will have to be caught again, if necessary, if the appeal is finally rejected? The whole point is about liberty of the subject and it is about urgent investigations into what can turn into extremely serious criminal charges.

477
I can think of no other exercise of judicial discretion which is both heard in secret and is not at any suitable stage able to be looked at by way of an appeal. There are other examples in the criminal justice system whereby matters are dealt with on an ex parte application. For instance, the police may wish to use their powers to obtain financial information under the Drug Trafficking Offences Act or under this Act itself, the Prevention of Terrorism Act, or under other legislation which has just come into effect—the Criminal Justice Act 1993. Incidentally, some of the applications for financial information under this Act are of such a sensitive nature that under paragraph 8 of the seventh schedule they are not dealt with in front of the courts in Northern Ireland but by the executive there. There has never been any complaint about that.
But perhaps the most striking example where ex parte applications do come at the present moment before the judges is where public interest immunity is being claimed. I am not talking about the Matrix Churchill trial, although that is an extremely good example of what can happen. I am talking about the disclosure of material in quite humdrum cases in some instances which is in the prosecution's hands but which derives from surveillance—it gives details of how that was carried out or comes from informers. These matters can be so sensitive that the defence is not even informed in advance that the judge is being invited to rule that they shall not be disclosed by the prosecution to the defence.
On Tuesday of this week in the Court of Appeal there was a judgment given by the noble and learned Lord the Lord Chief Justice in the case of Keane. In that case, which is reported in The Times, he stressed that ex parte applications are,
"contrary to the general principle of open justice",
in criminal trials. I commend that judgment to any of your Lordships who are interested in this subject.
In public interest immunity cases non-disclosure is open to review because it is only a provisional decision by the trial judge. He can change his mind at any stage of the trial, particularly if the defence discloses what is the line of defence that is being taken so that at last it is possible to see what is and what is not relevant to it in the material in the possession of the prosecution. Of course, the whole matter can be reviewed again at the stage when a conviction or sentence (particularly a conviction) is being considered on appeal by the Court of Appeal as in the Keane case.
Documents, television film of some incident and bank accounts are only evidence; they do not begin to go to the question of the liberty of the subject and neither do public interest immunity certificates or issues of that sort. Nobody loses their liberty, but in this case we are talking about somebody who will remain in detention if an extension of detention is granted.
This is a very uncomfortable job for a judge. He must act urgently, secretly and without consultation with anybody else. There is no expectation that he will ever get guidance from appeals in other cases. He is of course susceptible to criticism for decisions, as are all judges in all cases, but, unlike a Minister, he cannot answer it. He is not answerable anywhere at all for the decisions
478
which he takes. That may not be a wholly satisfactory situation when one is dealing with the liberty of the subject.
I do not know which judges are going to be thought suitable for this work, but there are serious practical difficulties in involving the judiciary. It may not be particularly difficult in Scotland because these issues do not very often arise there. But, just as a matter of interest, let us suppose that this should occur in the island of North Unionist, which is not all that far from Ireland. The sheriff goes there only two days a week, weather permitting.
In Northern Ireland the entire judiciary—the High Court judges and the county court judges together—could not possibly be expected to cope with the volume of these applications. I was used to looking at between 500 and 600 files every year. I noticed that Mr. Rowe said that it was 455 applications actually granted in 1993 which he had seen. The police do not arrange their terrorist investigations so as conveniently to reach the end of the 48 hours at about 9.30 on a weekday morning; nor do they make their applications any earlier than they have to because they would be criticised if they did that. It might not turn out that they would be successful if they made them too early.
So what happens is that applications are made at all times of the day and night, on all days of the week and throughout the year. They have to be dealt with urgently —about 1.5 times a day or something of that order. I do not believe that the Northern Irish judiciary would be able to take on that extra burden. We should be aware that that is the sort of thing that we are talking about.
In England and Wales, the number of applications last year was smaller, at 39, but an application has to go before whichever judge is available. These things do not all happen in London. What would happen if, as has certainly been the case in the past, an extension of detention was required in relation to somebody in custody in Haverfordwest? Who would deal with that? It would have to be whichever judge was available. Hundreds of members of the judiciary might in general be candidates for the task. There is no reason to suppose that any of them would be at all familiar with the subject matter and, as I have already said, they would not be able to discuss it with anybody else.
There would then be at the very least major problems of consistency—and consistency is extremely important. At the present moment, there is consistency for this reason: submissions come from the police. They are filtered by the police. The police do not put forward every case that comes from the lower ranks. The submissions are then looked at by a small team of experienced officials in the three departments concerned. With the experience that they have obtained, those officials are able to question the police about the applications and to take note of points which I do not believe a judge would know about or be able to pick up.
There are occasions—this happens particularly in Northern Ireland—when the same person is detained under the Prevention of Terrorism Act three times in a year. Separate files are involved on each occasion. The Northern Ireland Office and the reviewer knows that the person concerned has been dealt with in that way on

479
three separate occasions, but each involves a separate application. I see no reason to suppose that a judge would know that that person had been dealt with twice previously during the year. There would be no function for the expert team of civil servants who at present handle such matters with considerable skill.
There is also the whole question of whether the reviewer would be able to look at these matters. Judges would probably resent being overseen in that way. In addition, I am not in the least clear about the logistics of obtaining the files and the details of the judge's decision. A review is of some use. As Mr. Rowe mentioned in his report, it shows up patterns and the whole picture. I shall give two brief examples. The noble and learned Lord, Lord Rodger, has already referred to the catalogue that I made in 1987 of what was not: supposed to be an exhaustive list of the reasons on which could properly be founded an application for an extension of detention. There were certainly others, but those reasons have been used ever since. They were compiled from individual searches of the files. Each carne out of a real case which I thought properly exemplified the use of the power.
It was discovered that in Northern Ireland a number of people were being held at a stage when it seemed perfectly obvious that it would have been possible to charge them with a serious offence but when the police still wanted to question them about something else. It took me about three years to discover why that was happening. It transpired in the end that it was impossible for a Resident Magistrate in Northern Ireland to remand a person into police custody after that person had been charged with an offence—not even to enable the police to continue to question him or her about another totally unconnected affair. The reason was perfectly simple: the power in England and Wales, which is familiar to everyone, started under an Act of 1848 which, as it so happened, did not extend to Ireland. The power simply did not exist in Northern Ireland, which is the rump of all that is left of the island and is still within our jurisdiction. In 199 that was changed by the Criminal Justice (Northern Ireland) Order of that year, and the police now do take people before the courts, and then take them back for further investigations.
Finally, perhaps, there is this about overall patterns which involve the liberty of the subject and the way in which extensions of detention are handled; that is, that the reviewer is always invited to talk to officials and to Ministers. That is a less public arena in which to express views than the report itself, and I believe that it is valuable.
If, for the reasons that I have given—if they are at all convincing—it is not feasible to give the power to the ordinary judiciary, and yet one still wants to have a court for the purposes of Strasbourg, it will be necessary to invent some new judicial tribunal. It will have to sit in three divisions (Edinburgh, Belfast and London) for the reasons of urgency that I have given.
When that happens, no doubt those in the civil liberties lobbies will clap their hands with glee at the final conviction of the Government—that they have been wrong in the past—and the Government will make a pretty job with their cosmetics box and will put
480
forward a tribunal which is, in the eyes of Strasbourg, a court. Yet another quango will have been set up with its attendant costs and all the manning that will be involved; and with the involvement of a quango or tribunal of that sort, or indeed of a judge, it would then become legitimate in the eyes of Strasbourg, and wholly respectable, to detain people for much longer than they can be detained under the Act as it now stands. We should not be arguing about the difference between four and five days and seven days; we should be arguing about the difference between, shall I say, two days and four months. That would be wholly within the European convention. So where will all that get the detainee whose liberty is at the basis of all this argument? How much good will it all do him or her?
I believe that a judge, if confronted with one of these applications, would find it very difficult indeed to refuse. Of course there is always the danger of aberration, but at present, as I have said, it goes through three tiers of checks—in the police, in the Civil Service, and by the Secretaries of State themselves, who do not always do what their civil servants advise. If this were handed to the judiciary, there would be only the police and whichever judge was brought in on that particular occasion, and with probably no review.
In practice, I believe that these applications are almost always unanswerable, although one must always be vigilant to see that they remain unanswerable. I suggest that the present system is more efficient in ensuring that they are validly founded and properly are the reason for the deprivation of liberty than anything that could be introduced by some judicial element in the process.
What I suggest is that, instead of attacking the matter in the way proposed, we should look at the liberty of the subject in terms of what happens to him 'when he is under detention. I have just been reading Sir Louis Blom-Cooper's first report on the holding centres in Northern Ireland and the way in which confessions may be obtained—audio and visual tapes being introduced with certain severe restrictions—and matters of that sort. The liberty of the subject ultimately is riot a matter of two or three days in the police cell, it is 25 years after conviction. Those are the points that need to be guarded against. If we stop applying our minds exclusively to what happens over a matter of a few days at the beginning of the process, and apply them instead to the way in which we ensure not just that someone is not forced into a confession by unfair means but that the police are protected against false accusations that they have done that—because both those are important aspects—we should do more for the liberty of the subject than we can do by pursuing this matter.
9.40 p.m.
Lord Cooke of Islandreagh: My Lords, I am at a considerable disadvantage in following the noble Lord, Lord Mason, who served as a Secretary of State in Northern Ireland and therefore has intimate knowledge of this Act and all matters of terrorism. I am also disadvantaged in following the noble Viscount, Lord Colville, who has performed a signal service in reviewing the provisions over seven years. I listened

481
with great interest to his explanation of the problems relating to detention. I was glad to be able to do so because I had been unable to understand the problems.
I was pleased to hear his advice that the present arrangements should continue in the interests of the detainees as well as in the interests of justice. I hope that that can be the case because, as regards the outsider, the present arrangements are necessary and appear to work.
I am pleased that the renewal order is receiving support from all sides. Clearly, the Act is necessary so that the Government and the police have the powers to deal with terrorists. However, one or two issues need to be considered. For many years we have suffered terrorism in Great Britain and in Northern Ireland. Why is one Act needed for Great Britain and another for Northern Ireland? The problems are the same throughout the United Kingdom and I should have thought that they could have been dealt with in a single Act.
As regards exclusion orders, I am sure that they are necessary but the consequences of exclusion cause offence in Northern Ireland. If a terrorist is not acceptable in Great Britain why should Northern Ireland have to put up with him? I know that in the Northern Ireland order there is a reciprocal arrangement whereby terrorists can be excluded from Northern Ireland and sent to Great Britain. However, in the way of things, there is little reverse traffic. It is absurd that there appears to be satisfaction when a terrorist is excluded from Great Britain and sent back to Northern Ireland, where he is free to continue to do whatever he wishes.
One must ask whether the provisions in the order are adequate and sufficient to counter the schemes and devices that terrorists have developed over the years to defeat existing legislation. For instance, it seems a little odd that a terrorist suspect under interrogation can throughout remain silent, can look at the ceiling, can turn round and face the opposite wall, can sing or shout blasphemies. The fact that he does not answer a single question may not be taken into account in any way in subsequent court proceedings. On the other hand, a business person questioned by departmental officials on matters relating to VAT must give full and frank answers. Any person who refuses to do so may be sent to goal. The contrast is quite extraordinary.
That and other matters of a similar nature were raised by the chief constable of the Royal Ulster Constabulary when he introduced his annual report in May last year. He called for certain changes in the law on this and similar matters in order to reduce the handicap under which the police at present work. His comments are equally valid in Great Britain but to the best of my knowledge there has been no response to his remarks.
The whole question of terrorism in the United Kingdom is now at a critical stage. There is universal demand, or insistence, that it shall stop or be stopped. The Downing Street Declaration raised hopes of an early end to terrorism. I have not met anyone in Northern Ireland who thought that it would persuade the IRA to stop bombing and murdering but it was hoped that the Government knew more than the man in the street. That has not proved to be the case and I must
482
advise your Lordships that there is widespread anxiety in Northern Ireland that the affair is being allowed to drag on, giving Sinn Fein, in the person of Mr. Adams, endless opportunity to confuse the public at large by claiming that the IRA is devoted to peace but is being obstructed by the negative attitude in Downing Street. In the meantime, the IRA continues to bomb and kill.
The time has come when governments, both here and in the Republic of Ireland, must face up to taking effective action. The Government may have to lean on the Government in Dublin to obtain their agreement and commitment to such action but they must not shy away from that. To us in Northern Ireland it has been clear since the start of talks about talks—that is now four years ago—that the efforts to deal with the IRA have been less than wholehearted. We can see that—or the lack of it—with our own eyes. When it was revealed that meetings and exchanges took place early last year between the IRA and the representatives of government, we were not amused.
The principal reason why the IRA and Sinn Fein have not given up is because they think they are winning. If I was in their shoes, I should think that I was winning. They have been given more than an inch or two by the two governments and Her Majesty's Government should know by now that, if terrorists are given anything, they will demand and expect more and more concessions. That must stop. In the coming months it must be made quite clear to Sinn Fein and the IRA that they are not winning and are not going to win. It is the responsibility of government to deal with terrorism—IRA, Loyalist or whatever—and all terrorism and violence must be firmly put down.
I listened carefully to the noble Lord, Lord Mason, and I thoroughly commend and approve most of what he said. He suggested that political talks should now get moving—because they have been stagnant. He asked why Northern Ireland cannot be ruled as another part of the United Kingdom, as is Scotland or Wales. If that were done, it would please the vast majority of people there and stop the indecision and vacillation.
The noble Lord, Lord Mason, paid a very well deserved tribute to the security forces. I wish to support that. Their bravery and perseverance in the face of danger has been quite remarkable. It cannot be fully appreciated by those who have not seen them in action. Members of the police reserve and part-time members of the Royal Irish Regiment deserve particular credit. They live at home and are constantly at risk. They accept great personal inconvenience in order to serve their country.
It is difficult for people in this country to understand what they have to do. Often they are not able to tell their employer that they are part of the special reserve for fear that somebody will finger them. They have to pretend that they are going on holiday when they are going on camp. They have to tell their children to be careful what they say to other children at sc. col when they ask where their parents are at night and why they are always out. They have to be careful which clothes they hang on the line outside; they have to dry their uniforms inside the house. When they come back from camp, a badge on the cap or beret which they wear may leave a mark on their

483
forehead. They have to go to the chemist's shop to buy something to cover up that mark. Such matters, and all that flow from them, are difficult to understand. It is remarkable that those men and women continue to give such signal service.
I must also not forget the courage and determination of civilians, both Protestant and Catholic, who know that they are at particular risk. The community in Northern Ireland has suffered for far too long. I hope that the passing of the order and subsequent action by government will lift the threat of the bomb and bullet from us all in these islands.
9.50 p.m.
Lord Harris of Greenwich: My Lords, we were most fortunate to hear the speech of the noble Viscount, Lord Colville of Culross. I found his analysis of the problem of judicial intervention very powerful. I have certainly never considered the matter in as much detail as the noble Viscount clearly has. As I said, I found his argument most persuasive.
Before I come to the substance of what I have to say this evening, I should like to comment briefly on the remarks made by the noble Lord, Lord Mason, about identity cards. I certainly would have no objection to such cards if I believed—which I do not—that they would play a significant part in improving our arrangements for protecting members of the public in this country from terrorist violence.
The problem about identity cards can be stated very briefly. it would be immensely expensive; indeed, it would be a huge administrative problem if it was taken seriously and we had to establish procedures which made it virtually impossible for anyone to have a card which was not in reality properly his own. Of course, we know that it is almost inconceivable that we could make such arrangements. The fact is that the terrorists would have the most excellent identity cards, just as they have the most excellent fraudulent passports which are extremely difficult to detect. However, I do not dismiss the argument because I know that many people of good will hold it very strongly. But I am deeply sceptical and I would be very hesitant before I shared the noble Lord's enthusiasm for such cards.
I turn now to the order. My right honourable and honourable friends voted for the order in the other place. Of course, we have the same view on these Benches. As I explained in previous years, I believe that the array of powers contained within the legislation is essential in view of the terrorist threat to which our country is exposed. It is only right that we should review such powers annually because the provisions are exceptional. In circumstances where the powers are as substantial as they are, I do not believe that we can afford to be complacent, so long as they are needed on the statute book.
I introduced the original legislation in this House nearly 20 years ago. I believed then, as I believe now, that it is essential so long as we are confronted with extreme terrorist violence. I can certainly assure the House that, from my own direct knowledge, many of those who have been removed from the country as a result of exclusion orders would, if they had been
484
permitted to remain within Great Britain., have been involved either in acts of terrorism or in close support for the terrorists. As a result, I believe that some of our fellow citizens are alive today who would not be if exclusion orders had not been introduced.
For that reason, I find it hard to believe that it would be acceptable to drop such powers at present. Quite apart from any other consideration, I believe that the general public would be quite astonished in the immediate aftermath of the IRA attack on Heathrow if the Government suddenly decided that it was a good idea to drop the prevention of terrorism order. The existence of such powers has led to a lessening of the extent of terrorist violence. We have certainly been exposed to a great deal of it. Nevertheless, without those powers, I am quite clear that the situation could have been infinitely worse.
Having said that, I should like to make one further comment. When the Leader of the Opposition in the other place asked to see the Prime Minister to discuss such matters, I find it deeply disturbing that full reports of those discussions subsequently appeared in the Sunday Express. I do not think there is doubt in many people's minds as to where these reports came from. I do not happen to share the views of the Labour Party on the prevention of terrorism order but I deplore the fact that confidential discussions between the Prime Minister and the Leader of the Opposition were leaked for reasons of party political advantage. As I have indicated, human lives are involved in this matter. It is wholly irresponsible for those who were involved in leaking this to the Sunday Express to have done so. I have worked for two leaders of the Opposition who had conversations with two Prime Ministers and I can recall no incident during that period when the conversations between them were leaked to newspapers. I very much hope that we will have no more of this in the future.
9.55 p.m.
Lord Williams of Mostyn: My Lords, I wish to take up that final point made by the noble Lord, Lord Harris of Greenwich. If ever I were to deal with the noble and learned Lord the Lord Advocate in a robing room in his jurisdiction, or he with me in mine, we would be able to deal with each other in complete confidence and confidentiality as members of the Bar. Whenever I have had conversations with the noble Earl, Lord Arran., or presently with the noble Baroness, Lady Denton of Wakefield, we all know that what we say in confidence will go no further.
One of the most dreary commentaries on modern standards in government seems to me to be that a private conversation between the Leader of the Opposition and the present Prime Minister was promptly leaked. I could not be stronger in my endorsement of the approach of the noble Viscount, Lord Colville of Culross. These matters are far too important for partisan advantage. This was a time of importance and delicacy. There was a genuine approach by the Leader of the Opposition looking for a consensus that was spurned, not, in my belief, by the Prime Minister but by others. It was spurned in the most discourteous and, even worse, the most irresponsible of ways.

485
I turn to our approach. Our general approach is that there is a point of high principle involved here. Civil rights should never be curtailed except in the most pressing emergency. But, if they are so curtailed, the limitation should be subject to judicial scrutiny and any invasion of civil rights ought to be kept to the minimum. If we do not attend to that principle, we give terrorists a victory and we should not overlook that.
As my noble and learned friend the Lord Advocate rightly assumed, I wish to deal with Part II and Part IV of the Act this evening. But before doing so, I wish to endorse the disappointment that has been mentioned as regards the response, or lack of it, of IRA and Sinn Fein to the Downing Street Declaration. As I have said in your Lordships' House before, that was a declaration of political courage on the part of our Prime Minister and the Taoiseach. I myself find it difficult, not to say deeply offensive, to hear Mr. Adams speaking for those he represents, and those he pretends he does not represent, and asking for clarification. If Mr. Adams and his colleagues, in the open or in secret, want clarification, might they not condescend to say what they want clarified? I, for one, have never heard that. Not long after the declaration, there was the recent mortar bombing of Heathrow and the particular consequent obscenity of Mr. Adams promising further spectaculars. That word "spectacular" will be a chicken that comes home to roost as far as Mr. Adams is concerned.
Of course we support—as noble Lords have already said—the security forces and their dedication and courage. They need our full support. I very much hope that they will not feel that in Northern Ireland the financial protection afforded to people in the security forces, in the RUC and to civilians by the Criminal Injuries Compensation Board will be taken away from them. I very much hope that we shall not hear in the next few months that that protection against injury and its consequences will be taken away from them. However, when I asked the noble Baroness, Lady Denton, about that recently, she said that it was under consideration. From all the discussions that I have had with those concerned in Northern Ireland, such a consequence would be met with bitterness.
As has been said, Part II of the Act allows, at the disposition of the Executive, what is in effect internal exile. I concede that that may be necessary in certain grave cases. But we ought to bear in mind the objection articulated this evening by the noble Lord, Lord Cooke of Islandreagh, which has also been expressed by others, such as Mr. Trimble and Mr. Taylor, neither of whom could be described as soft on terrorism. In fact, Mr. Taylor has been the object of a determined effort to murder him. They object to this concept of internal exile for precisely the reason specified by the noble Lord, Lord Cooke of Islandreagh. Too often it appears to people in Northern Ireland—it seems to me, with some justification—that Northern Ireland is regarded as a dustbin for those not wanted in Great Britain, because that exclusion or internal exile is substantially a one-way traffic.
It is our view that there should be a judicial component. Having listened with care and interest to the
486
observations of the noble Viscount, it seems to me that it is possible to have one or two nominated High Court judges to deal with exclusion orders and arrest and detention orders. In England and Wales the numbers of cases are not enormous. Judges are regularly available at home at any time of the day or night, as anyone who practises at the Bar here knows. They are able to come to decisions very quickly. There would be infinitely more public confidence if a judge's fiat was required rather than an executive decision. Not only would there be a benefit to the system itself, but there would be the added benefit of a firming up of public support and confidence. After all, if people are wrongly treated with exclusion orders it may encourage them to bitterness and to extremism when that might otherwise not have been the case.
Part IV provides for arrest and detention up to seven days. Of course it is recognised that, for specific reasons which have already been mentioned—I shall not trouble your Lordships with the tedium of repeating them—there may be circumstances where extension is required. We are adamant that that should be on the basis of a judicial decision. Of course I endorse entirely what the noble Viscount said. Reasoned decision will not be available. Appeal will not be available, nor judicial review.
I simply pose this question. If any of us had a 20 year-old son or daughter who was likely to be detained for seven days —which is a very long time—and likely to be excluded, would we want that exclusion order or seven-day detention order brought about by the likes of that independent judge, Judge Smedley, or would we prefer it to be brought about by a member of the Executive, many of whom recently have been rather too free with public interest immunity certificates? If one puts the question in that way it will be seen that the involvement of the judiciary is essential, although that would be in difficult circumstances without the full apparatus of the law.
I agree entirely with the analysis of the noble Viscount. There would be constraints and difficulties. But, as he rightly said, there would be ex parte applications, which are well known in this class of criminal prosecution. I have dealt with them myself. As the noble Viscount said, they have recently been reviewed in the Court of Appeal.
Without detaining your Lordships too long, perhaps I may deal with one specific area—namely, the question of tape and/or video recording of interviews. That was dealt with as recently as 31st January this year at page 109 of Sir Louis Blom-Cooper's report. It was raised at page 14 of Mr. Rowe's report on 3rd February 1994 and it was extensively discussed in the noble Viscount's report of 20th May 1993. All those reporters—if I may put them in that general category—had serious questions about whether tape or video recordings should be carried out. Of course, it is quite impossible to deliver a tape or video recording to the suspect or his lawyer. Nevertheless, not least for the protection of the interviewing officers, as was mentioned earlier, the decision about taping or video recording needs to be reached as quickly as possible.

487
I suggest that there is reasonable ground for having a general judicial inquiry into the whole scheme and structure of the Act
I shall conclude with a personal word. I myself have prosecuted at the Bar as well as defending in terrorist cases. I have had personal experience of working with police forces, Special Branch and related authorities. From my experience, no one would sensibly object to reasonable powers which are required in terrorist cases. Those powers and any extension of them should be based on the principle which I sought to define earlier.
I cannot leave the subject without saying that I personally resent, and I know that my colleagues in the other place do so, the fact that a reasoned approach to the matter on the basis of a desire for consensus is turned somehow into an allegation that one political party or another is soft on terrorism. I know that that will not happen in your Lordships' House. That is a demeaning approach for a Secretary of State to adopt. I do not think that 1 should demean this House with any further consideration of that approach.
The matter was fully discussed in another place. As noble Lords know, there was a substantial majority in favour of the continuation of the Act and its provisions. Fundamentally, the provisions must continue. The approach that we adopt is that there should be a judicial involvement; it would be difficult, but it would be better.
10.7 p.m.
Lord Rodger of Earlsferry: My Lords, in the course of this debate, your Lordships have been privileged to hear contributions from speakers who have an enormous wealth of experience relevant to the subject.
In a powerful and authoritative speech, the noble Lord, Lord Mason, made several general political points. In particular, he urged the Government not to allow Sinn Fein to have a veto over political progress in Northern Ireland. I can give him an assurance that no such veto exists. The Prime Minister and the Taoiseach made it clear on 19th February that they intended to push forward with the political talks. Those who continue to advocate or support the use of violence for political ends can have no part in constitutional discussions within a democratic society.
I can say to the noble Lord, Lord Cooke, that there can be no question of concessions being made to violence. He also asked why, when we were dealing with Acts and orders, we had to have two rather than one. The Prevention of Terrorism (Temporary Provisions) Act which we are considering tonight applies throughout the United Kingdom, so the order which we are considering will secure the continuation of the necessary powers in Northern Ireland as well as Great Britain. I believe that the noble Lord referred to the additional powers which are contained in the Emergency Provisions (Northern Ireland) Act which will in due course be subject to a separate order which the House will debate in May or June. The reason for that separate legislation is that there are additional provisions—for example in relation to such matters as road closures—which have been thought to be
488
particularly appropriate to the situation in Northern Ireland and which have therefore been made subject to that particular form of legislation.
The noble Lords, Lord Harris and Lord Williams of Mostyn, referred to the leaking of the confidential discussions between the Prime Minister and the Leader of the Opposition. Noble Lords would not expect me to do other than to deplore that leaking of discussions which took place plainly on Privy Council terms. But if I deplore that, it is only what my right honourable friends the Prime Minister and the Home Secretary have also said. They have deplored the fact that discussions became publicly known. Inquiries have been made, as noble Lords know, but they have not ascertained how the Sunday Express was able to print its story. For my part, I would reject the innuendos which were cast, as it seemed, upon particular Ministers.
The noble Lord, Lord Mason, raised three particular matters. He referred to the involvement of MI5 and the Security Service. As noble Lords know, since October 1992 the security services have had lead responsibility in Great Britain for the intelligence effort against Irish Republican terrorism.
I cannot comment on the operational matters involved. However, I can assure the noble Lord that the police and security services work very closely together at all levels to ensure that their combined resources are brought effectively to bear against the terrorists. It is a fact that a number of the recent successes have resulted from the combined work of the intelligence services and the Royal Ulster Constabulary in Northern Ireland and of the police here in Great Britain.
The noble Lord also raised the question of identity cards; and the noble Lord, Lord Harris of Greenwich, touched briefly on that matter. The Government share the view of the noble Lord, Lord Harris. Although there are indeed developments in technology, the Government are not convinced that such a scheme would of itself make a significant contribution to the fight against terrorism. As the noble Lord, Lord Harris, suggested, we believe that determined terrorists would not find it difficult to circumvent the system, either by fraudulently acquiring identity cards or by, for example, obtaining travel documents issued to citizens of other European Community countries, whose nationals have the right to travel freely to and within the United Kingdom.
Of course, police require proof of identity for routine counter-terrorist checks at ports. They already have the power under Schedule 5 to the Act to require travellers at ports to produce documentary evidence of their identity and nationality.
The other point which the noble Lord, Lord Mason, touched on was the question of recognition of the role of the services, and indeed of the Royal Ulster Constabulary. The accumulated campaign service medal will be issued in recognition of service in a number of theatres—including, but not solely, Northern Ireland. At first, most of the service personnel who will receive the medal when it is issued towards the end of the year, will be those who served in Northern Ireland. That is the theatre in which they will have had the opportunity to accumulate the length of service which

489
the award requires. I cannot yet give the noble Lord the numbers of those who receive that medal. The medal is to be awarded to members of the armed services only and officers of the Royal Ulster Constabulary will not be eligible. In fact, the particular circumstances of the Royal Ulster Constabulary are recognised by the issue of special payments. However, I have noted what the noble Lord said.
In the end, among the noble Lords who spoke there was no difference about the regrettable necessity for the powers in this Act. But the noble Lord, Lord Williams of Mostyn, took the view that he would like a judicial element involved both in the matter of exclusion orders and in the matter of detention. In many ways the Government would also like such an element in an ideal world. But the fact of the matter is that this has been very carefully considered. I would certainly not presume to better the quite outstandingly authoritative account given to your Lordships this evening by the noble Viscount, Lord Colville of Culross, of the arguments that present themselves in this connection.
One must have regard to the fact that, as was said, so many of these situations would arise in Northern Ireland. One would therefore risk drawing the Royal
490
Ulster Constabulary, which already has a hugely difficult task to perform, into what inevitably would be an area of great controversy. Because of the nature of the decisions involved, in many ways they are executive actions and should be taken by a member of the executive. The Government feel very strongly that it would be damaging to the status of the judiciary—that very important bulwark of independence—to ask it to take on this role which, as I said, would inevitably lead it into that area of controversy.
So, although it is with regret that we reached that conclusion, nonetheless we reached the view that that is the position. For those reasons we do not believe that there is some magic solution or indeed any solution which some kind of further inquiry in this matter would discover.
Having regard to all the circumstances, the Government believe that the legislation continues to be a most important element of our defence against terrorism. For that reason, I commend the order to the House.
On Question, Motion agreed to.
House adjourned at eighteen minutes past ten o'clock.