COMPENSATION FOR UNREASONABLE ALTERATION IN TIME AND DATE OF HEARING

HL Deb 28 January 1999 vol 596 cc1246-78

. Where a civil court has allocated a fixed time and date for a hearing or trial, but fails in the event to honour that commitment, without giving reasonable prior notice to the parties, the Court Service shall compensate the parties for any time and costs which have been wasted.").

The noble Lord said: This amendment would require the court service to pay compensation for wasted costs to the parties in a civil action who attend for a fixed trial or hearing which is ineffective or delayed because of a failure of the court service.

The civil justice reforms masterminded by the noble and learned Lord, Lord Woolf, which will be introduced in April this year, aim to reduce the cost and complexity of most civil proceedings. One particularly welcome innovation of the reforms is the intention that the courts will fix trial dates and starting times for trials much earlier in all proceedings in order to give the parties a timetable to work to. The new court rules will only allow these fixed trial dates to be postponed in strictly limited circumstances. This praiseworthy aim is to prevent unwarranted delays and slippages in preparing trials.

In lower value claims, which will be allocated to the new fast track in the county court, trial dates are to be fixed about 30 weeks after the defence is filed. This will cut the present average time for the conclusion of county court cases by some 50 per cent.

The noble and learned Lord, Lord Woolf, also proposed that the legal costs which the winning party can recover from the losing party in these lower value claims should be fixed. This would enable a party, before beginning litigation, to have greater certainty about the costs he might have to bear if the claim does not succeed.

As the first stage of implementing the noble and learned Lord's recommendations, the fixed costs of advocacy at the trial are being introduced in April this year. This initiative is thought to be feasible because it is intended that fast-track cases will be scheduled for no more than one calendar day.

But there are serious concerns about whether or not the courts will be able to keep to definite trial dates and times. Only very limited additional resources are being allocated to the court service to implement the most significant reforms to the civil justice system for 100 years. No more full-time judges are being appointed and the technology needed to enable the courts to case manage and monitor actions will not be introduced until the year 2000 at the earliest.

Under the present system the courts tend to list several cases to be heard on the same day at the same time and before the same judge on the assumption that many of them will settle before the day arrives. In addition, the county courts in particular will list other appointments for the judge at 10 or 10.30 a.m. to sort out more urgent matters which have to be disposed of before starting to hear the day's trial. Quite frequently this means that a trial does not begin until noon or even the beginning of the afternoon, and if some of the cases listed for that day do not settle some trials have to be postponed. It is not always possible for courts to give parties notice of the likelihood of postponement but the present practice is that compensation will be paid to parties on an ex gratia basis if there have been errors in listing that amount to maladministration.

Without additional resources it will be very difficult for the court service sufficiently to change its established practices to ensure that even most of the fast track fixed date and time trials take place. But if the parties arrive at court with their full teams, which may include solicitor, counsel, witnesses of fact and sometimes expert witnesses, and the trial cannot start until later that day or at all substantial additional costs will be incurred which, under the new system, cannot be recovered even by the successful party because of the introduction of fixed trial costs. That will be unfair and will create uncertainty in a system that is designed to be streamlined, efficient and, above all, transparent.

I hope that the courts will be able to deliver fixed date and time fast track trials. If they cannot a system needs to be in place to provide proper compensation. The noble and learned Lord, Lord Woolf, recommended this in his report Access to Justice in 1996 and the Civil Procedure Rules Committee responsible for drawing up the detail of the reforms to be implemented in April has made a similar recommendation. I beg to move.

Lord Clinton-Davis

Perhaps I may put one question to the noble Lord. Does not the amendment place too draconian a burden on the courts? The amendment does not provide that if the court is unable to take account of the situation that has arisen it shall be exempt from the duty. A judge may fall ill or an accident may occur. There may be circumstances of that kind over which the court has no control.

Lord Kingsland

There may indeed be circumstances that will excuse the court service from making such a payment. I have tabled this amendment and it is for the noble and learned Lord the Lord Chancellor to react to it and say to what extent he believes it is appropriate, requires modification or is at all relevant. I believe it right to start with the principle that if the court service is at fault in circumstances where a date and time has been fixed it is proper that the parties should be compensated in view of the new cost system laid down in the fast track proposals.

Lord Falconer of Thoroton

The noble Lord puts the amendment on the basis that if the court is at fault it should pay. That is not the way the amendment is currently drafted. The amendment reads: Where a civil court has allocated a fixed time and date for a hearing or trial, but fails in the event to honour that commitment, without giving reasonable prior notice to the parties, the Court Service shall compensate the parties for any time and costs which have been wasted". The noble Lord knows all too well that one of the major reasons why dates are lost when the parties turn up at court is because the cases listed before them overrun. Cases frequently overrun because the parties give inaccurate time estimates. That is not the fault of the court. Yet, on the basis of the amendment, compensation must be paid.

That is not simply a technical point. Practitioners know only too well that cases overrun, and it happens with the best will in the world on the part of the judges, the parties and the lawyers. It inevitably dislocates following business. The effect of the amendment would be either over-cautious listing, leading to longer waiting times and poor use of judicial time, or an increase in the amount of compensation paid. Both points will lead to an increase in the cost of running the civil courts, and that, in its turn, will he reflected in the fees.

Ultimately, listing is a judicial matter. Court service staff act under guidelines agreed with the local judiciary and seek judicial advice when listing difficulties arise.

However, where there has been a clear error on the part of staff which is separate from any judicial direction, in practice the Lord Chancellor's Department pays compensation. The parties involved are compensated for any costs that they have incurred unnecessarily. That is what happens now. The total compensation paid in 1997/98 was about £500,000. Dealing with such issues is not a matter appropriate to legislation. They are administration matters.

Under the civil justice reforms, which shall be introduced in April, the courts will rely to a large extent on information given by the parties in determining how to list business. The proposed amendment will make the court service liable for inaccurate time estimates made by the parties. That cannot be right. That said, the court service has already indicated to the Law Society, the Bar Council and consumer groups that it will consider the impact of the civil justice reforms on the compensation arrangements. It met with representatives of those groups on 8th January, but, not surprisingly, the court service's consideration is not yet concluded.

In the light of my remarks, I urge the noble Lord to withdraw his amendment.

Lord Kingsland

I thank the noble and learned Lord for his reply. I accept that the terms of my amendment may be said to be a little stark. However, the noble and learned Lord, Lord Woolf, who remained stoically throughout this evening—sadly, he has just departed—recommended a system similar to the one that I am recommending. In those circumstances, I have drawn sufficient inspiration from the noble and learned Lord's reply to reconsider the matter and table it again on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [Commission areas.]:

Lord Gisborough moved Amendment No. 299:

Page 25, leave out lines 29 and 30.

The noble Lord said: In speaking to Amendment No. 299, I also speak to the Question whether Clauses 50 and 51 and Schedule 7 shall stand part of the Bill.

The basic units of the magistrates' courts service are the benches made up of local people who deal with, and are aware of, local issues. Benches vary in size, geographical location and the type of workload which is predominantly dealt with. From large city courts comprised of over 400 magistrates to small rural courts made up of less than 20 justices, all share a sense of belonging to a community organisation dealing with local issues.

If petty sessional areas are not based upon discrete localities of optimum size, magistrates will not be in a position to determine the make-up of their benches' sitting patterns, choice of chairman and standard of justice. Large benches based on commission areas would run a risk of inconsistent sentencing and be placed in a position where they might be unaware of the ability of their colleagues when deciding whom to elect as a bench chairman. Magistrates may not wish to travel and would not be aware of local practices and procedures.

Benches are not tribunals. They, and not the magistrates' courts committees, are responsible for the organisation of court business. That encourages a deep understanding and co-operation with colleagues and legal advisors. Creating large petty sessional areas based upon regions rather than towns or cities would lead to a diminution of lay magistrates belonging to the community that they serve. I cannot see any discernible advantage in the benches being formed in such large units. I beg to move.

11.15 p.m.

Lord McIntosh of Haringey

Amendment No. 299 would remove subsection (2) of the new Section 1 which Clause 49(1) is inserting in the Justices of the Peace Act 1997 in place of Sections 1 and 2. That subsection provides the ability to specify commission areas by way of statutory instrument rather than as at present by primary legislation.

Commission areas provide the basis for the appointment of magistrates and the jurisdiction of cases. Historically, commission areas have aligned with magistrates' courts committee areas, allowing for magistrates and cases to be deployed effectively across an MCC area. However, unlike both MCC and petty sessions areas, where changes to boundaries are possible through secondary legislation, commission areas may only be changed in strictly prescribed circumstances by primary legislation. To facilitate greater alignment between criminal justice agency boundaries, in particular police and Crown Prosecution Service boundaries, the number of MCCs has reduced in recent years by a series of amalgamations so that the areas are more closely aligned with these boundaries. The result is a growing discrepancy between MCC and commission area boundaries, with some MCCs covering more than one commission area. The time taken to effect change by primary legislation undoubtedly causes difficulties for MCCs. They are being prevented from redrawing their internal boundaries to reflect the local character of the service. Difficulties will ensue.

The Government believe that constraints on the effective administration of the magistrates' courts service should be removed wherever possible. This clause would regulate the procedures for all proposed changes to magistrates' courts boundaries and remove the increasingly obsolete description of retained county and metropolitan county areas. In future, commission areas will be defined in secondary legislation, and boundaries may also be altered by secondary legislation. I assume we can all agree that unfortunately the reorganisation of local government will not come to an end with the end of this millennium. The important point is that the Delegated Powers and Deregulation Committee has seen no difficulty with this change. Changes will, of course, require consultation with the MCCs and magistrates affected. There will be parliamentary scrutiny of the orders made.

If an MCC is to operate effectively, it must be free to make decisions about its geographical structure, including the arrangements for commission areas and petty sessions areas.

These changes respond to difficulties faced by some magistrates' courts committees. Those committees want to make the best use of their magistrates and resources to improve service. Future changes in the service, continuing the modernisation of the courts, will be managed more easily and quickly. On that basis, I shall ask the noble Lord to withdraw the amendment.

The noble Lord said that he spoke also to his notice of intention to oppose Clause 50 stand part and, I believe, Clause 51 and Schedule 7, so he is asking for a rather wide-ranging reply. Perhaps I may answer on Clause 50, which has two parts.

Lord Phillips of Sudbury

Before the noble Lord turns to those clauses, will he perm it me to inquire what consultation arrangements would be available if statutory instruments are used to change these boundaries under the proposed clause?

Lord McIntosh of Haringey

I have already said that the magistrates' courts committees would be consulted in detail before any order is proposed. Indeed, it will be not just the magistrates' courts committees but the magistrates themselves on the individual benches. So there would be opportunity for full consultation.

Lord Phillips of Sudbury

Are there any statutory requirements to that effect?

Lord McIntosh of Haringey

No, but the noble Lord has my assurance, which is relevant to the interpretation of statute.

I return to the wider issue of Clause 50 to which the noble Lord, Lord Gisborough, referred. The definition of petty sessions areas, which Clause 50 covers, in terms of commission areas allows a magistrates' court committee the freedom to decide the most appropriate and efficient petty sessions structure which best suits its local circumstances, free of the changing constraints of local government boundaries. Petty sessions areas will in future be specified in an order made by the Lord Chancellor. I must emphasise that there is no change in the procedure for reorganising petty sessions areas and MCCs will continue to be free, subject to statutory consultation procedures, to redraw their internal boundaries.

A further provision in Clause 50 removes the distinction between a petty sessions area and a petty sessional division, which exists only for the purposes of geographical identification and is no longer necessary with the changes in local government boundaries.

I appreciate that the noble Lord, Lord Gisborough, has widened the scope of his introduction of Amendment No. 299, but I hope that he will accept that the argument against it would justify his withdrawing the amendment.

Lord Gisborough

I thank the noble Lord for that explanation. It sounds benign, but I wish to consider whether to come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 agreed to.

Clause 50 agreed to.

Clause 51 [Consequential amendments]:

The Lord Chancellor moved Amendment No. 299A:

Page 27, line 44, leave out ("Schedule 7 (which makes amendments") and insert—

(" .—(1) The Lord Mayor and aldermen of the City of London shall not be justices of the peace unless appointed by the Lord Chancellor in accordance with the Justices of the Peace Act 1997.

(2) Schedule 7 (which contains other provisions").

The noble and learned Lord said: This clause and Schedule 7 complete the statutory changes needed as a consequence of the new approach to commission areas and petty sessions areas which we debated in connection with Clauses 49 and 50. The new material introduced by these amendments relates to the City of London.

Clause 57 will create a Greater London Magistrates' Courts Authority (GLMCA), merging the existing 22 magistrates' courts committees (MCCS) in London. The GLMCA will be responsible for the administration of all the magistrates' courts in the capital in place of the 22 responsible for their separate geographical areas. As well as having the ability to manage its workload and magistrates' courts more efficiently and reduce delay, a further benefit will be the capability, if the GLMCA so wishes, to apply to redraw the commission area boundaries. A commission denotes the geographical area within which summary offences may be tried and for which lay magistrates are appointed. Furthermore, the GLMCA will also be about to redraw its petty sessions area, just like any other MCC.

The Government's policy is that the GLMCA should have the same freedom as other MCCs in the rest of the country to move cases and magistrates to administer justice with maximum efficiency and to reduce delays. Flexibility to change commission areas will be an integral part of the policy. This policy stems from work done in the criminal justice system cross-cutting Comprehensive Spending Review.

The Bill's provisions, if enacted, will have an impact upon the City of London MCC, its commission area, its petty session and the role of the Lord Mayor and Aldermen of the City of London as Justices of the Peace. It is certainly possible that the City will be able to persuade the GLMCA that it should remain a separate commission area for the indefinite future. What is, however, unacceptable is that the City's commission area alone among the commission areas in the country should have a statutory guarantee of preservation in perpetuity. That would be an unacceptable restriction on the power of the GLMCA when the Bill confers powers to make changes for every other part on England and Wales.

There are other areas of the country with their own separate commission areas which are a matter of county and historic pride and it would discriminate against them to provide a unique statutory guarantee for the City commission area. The Lord Mayor and the aldermen currently have special rights carried forward from a charter granted to them in 1741 by His Majesty King George II. They are the only body of persons in the country who have the right to be magistrates through election as aldermen—in other words, they become magistrates by virtue of their office and not as a result of appointment by me as Lord Chancellor (or in the case of magistrates within the Duchy of Lancaster, by the Chancellor of the Duchy).

In practice, prospective aldermanic candidates apply to the advisory committee prior to aldermanic elections for it to be determined whether they fulfil the criteria for appointment as magistrates. That is sensible and can continue as of course. In practice, prospective aldermanic candidates qualify as eligible to be appointed magistrates prior to their election. The practical position in the City commission area is that there is always a demand for the service of aldermen, when elected, as magistrates, provided they satisfy the advisory committee's criteria.

While I firmly believe they play an important role in the delivery of justice in the capital, I also believe that it cannot be right for the ancient rights and privileges of the Lord Mayor and the aldermen to be justices of the peace by virtue of their office to continue in perpetuity. Amendment No. 299A amends Clause 51 by removing this automatic right of the Lord Mayor and the aldermen of the City of London to be lay justices of the peace by virtue of their office. The effect of this amendment means that the Lord Mayor and the aldermen will become justices of the peace only after passing through the same selection procedure as applies to all other magistrates through England and Wales. The amendment also means that they can, if they so wish, and are suitably qualified, apply to become either stipendiary or acting stipendiary magistrates or district judges (magistrates' courts) as they will in future be known.

It will be my policy—and this is a policy I believe will be appropriate as long as there is a need for aldermen to be justices—to appoint those who have been elected as aldermen, as justices if the advisory committee, applying the same criteria as apply in the rest of the country, recomend their appointment to me. To give effect to that policy, I shall be requiring my advisory committee to consider aldermen candidates as and when they present themselves for selection and within the timescales needed for aldermen selection.

The current position for the residence qualification for justices of the peace is that they must reside in or within 15 miles of the commission area to which they are appointed. However, many of the aldermen live more than 15 miles from the City. Therefore, I propose that if the Lord Mayor and the aldermen are appointed justices of the peace, I shall exempt them from this requirement. Amendment No. 299C gives effect to that proposal.

Furthermore, Amendment No. 328E inserts a new paragraph in Schedule 10 which allows the existing Lord Mayor and aldermen to remain justices of the peace as if they had been appointed under the current arrangements. These amendments set out my policy in respect of the Lord Mayor and the aldermen as justices. The remaining amendments grouped with these make further statutory amendments to give effect to my policy.

I should not wish to depart from explaining these amendments to the Committee without expressing the Government's appreciation for the high quality services that the aldermanic magistrates have rendered over the years for the benefit of the public and the City and to express my expectation that they will do so in the future. I beg to move.

11.30 p.m.

Lord Kingsland

The noble and learned Lord the Lord Chancellor has anticipated a question that I was going to ask and to a large extent he has answered it. As he is well aware, the potential effects on the Corporation of this change—I am referring to the effects of Amendment No. 229A—I would go very much further than the amendment suggests if the Lord Mayor and Aldermen were not in fact appointed as magistrates. That is because, I understand, other parts of the Corporation's constitution require that they are magistrates; if they were not, other functions of the Corporation, such as the operation of the City of London Police Authority and the relationship of the Lord Mayor and the Court of Aldermen with the livery companies, would be affected.

I believe that the Lord Mayor and Aldermen would prefer statutory backing for the future of both offices as magistrates. However, the noble and learned Lord has gone a very long way to reassuring future Lord Mayors and Aldermen of his commitment to their status as magistrates. In those circumstances, I certainly would not wish to press this matter any further.

On Question, amendment agreed to.

Clause 51, as amended, agreed to.

Schedule 7 [Commission areas and petty sessions areas: amendments]:

The Lord Chancellor moved Amendments Nos. 299B to 299D:

Page 75, leave out lines 19 to 23 and insert—

(".—(1) Section 19 of the Administration of Justice Act 1964 (sheriff of Greater London and under-sheriffs for London commission areas) is amended as follows.

(2) In subsection (1) (appointment of sheriff of Greater London and under-sheriff for each London commission area), for "and for each London commission area an under-sheriff shall be so appointed" substitute "and an under-sheriff shall be so appointed for each area of Greater London (not including any part of the City) specified by the Lord Chancellor by order; and an order under this subsection shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament".

(3) In subsection (2) (application of enactments to under-sheriffs as if London commission areas were counties), for "London commission area" substitute "area specified by virtue of subsection (1) of this section".

(4) In subsection (4) (modification of Sheriffs Act 1887 in its application to Greater London)—

1. (a) for "London commission area" substitute "area specified by virtue of subsection (1) of this section",
2. (b) for "a justice of the peace for any of the London commission areas" substitute "any justice of the peace for a commission area consisting of or including the whole or part of Greater London", and
3. (c) for the words from "shall be sent" to the end substitute "shall be sent to the officer specified by the Lord Chancellor by order made by statutory instrument".").

Page 76, line 26, at end insert— ("23A. In section 6 (residence qualification for justices), after subsection (1) insert— (1A) If a person who is the Lord Mayor or an alderman of the City of London is appointed in accordance with section 5 above as a justice of the peace for a commission area including the City of London, subsection (1) above shall not apply in relation to his appointment as a justice of the peace for that area so long as he holds either of those offices."").

Page 77, line 32, at end insert— (". In section 70(1) (application of enactments to City of London), for "justices for the City" substitute "justices for a commission area consisting of or including the whole or part of the City".").

On Question, amendments agreed to.

Schedule 7, as amended, agreed to.

Clause 52 [Unification and renaming of stipendiary bench]:

Lord Gisborough moved Amendment No. 300:

Page 28, line 9, leave out ("District Judge (Magistrates' Courts)") and insert ("stipendiary magistrate").

The noble Lord said: Grouped with this amendment are Amendments Nos. 301 to 310 and 312 to 317. Although it is accepted that stipendiary magistrates are professional lawyers who support and complement the work of benches, they enjoy the same powers and the jurisdictional limitations as the lay magistrates. Their sentencing powers are identical and the maximum penalties which apply to the bench are the same. To differentiate their role from that of lay magistrates may demean the latter's role in the eyes of the courts' users and the general public.

Stipendiary magistrates will of course continue to play an important role in the magistrates' courts. A change of title may be confusing and create the appearance, however mistaken, of a two-tier system. We should take into account the views of the lay magistrates, who consider the change of name to be detrimental to the role and image of the magisterial system. Magistrates are often already suspicious that stipendiaries are liable to get the more interesting cases and the change of their name to district judges will increase their concern. I beg to move.

Viscount Tenby

I wish to speak to the amendment moved by the noble Lord, Lord Gisborough. Most clauses in most Bills have some sort of rationale behind them, but I am bound to confess that the one relating to this clause has been so skilfully camouflaged that I am unable to detect it readily. I am sure we can dismiss as mischievous the proposition that it is included to feed the vanity of stipendiary magistrates. After all, what's in a name, though I am slightly surprised that they would prefer to be called "DJs" rather than "stipes": a sign of the times, I suppose.

I also cannot quarrel with the recommendation that such magistrates should be able to be sent to any commission area in need of them. Such a provision is long overdue. But why should peripatetic magistrates receive a new name? That is the mystery before us tonight. It seems to me that there is an inherent danger in the proposal to call stipendiary magistrates district judges. After all, as we have heard, both they and the lay magistrates operate in the same lower courts, their powers of sentencing are similar, though, since they are full time and skilled professionals, their throughput, to use an awful modern phrase, is much larger. As the chairman of a Bench, I was anxious that as many of my team as possible should watch a stipendiary in action. It was invaluable training for them.

So let there be no doubt of my appreciation of stipendiaries and their work. However, if this proposal goes through, we shall surely be creating a two-tier system in the lower courts. Will defendants become confused and think they are being dealt with by a higher court? What about lay magistrates? In my experience, unpaid workers tend not to be regarded as highly as those who are paid. Perhaps we can counter that by calling JPs District Justices (Lay) in future. That is many questions for a comparatively short provision. I greatly hope that the Minister will be able to provide some of the answers.

Lord Phillips of Sudbury

One could think these many amendments superficial and unimportant, but they are not. The great British public today are astonishingly confused about the organisation of the state and the judicial system. The magistrates' courts have a great advantage in being known and familiar throughout the land. That cannot be said of any other part of the system.

I urge strongly that unless there is some reason for change of which this Committee is unaware, we let the names continue. It is an honourable name. The magistracy has 700 honourable years' service and I see absolutely no purpose in potentially confusing the role of the stipendiary magistrate with other judicial officers in the civil system through the proposed change. I do not need to repeat the potential implications of such a change vis-à-vis the standing of lay justices. I am sure that every Member of the Committee would wish to uphold to the fullest extent the standing of the lay magistracy who, I venture to suggest, are perhaps the most important single institution in the state outside these Houses of Parliament. I urge strongly therefore that the Government think hard about this apparently superficial, but far from superficial, change.

Lord Crathorne

I too support these amendments. I do so as president of the Cleveland and North Yorkshire Magistrates' Association. I want to put on record how strongly magistrates feel about the change of name. There have been eloquent speeches from all sides of the Chamber in that regard, and I hope that the matter will be carefully considered.

Lord McIntosh of Haringey

I do not want in any way to play down the importance of names. Those of us who sat through the proceedings on the Police and Magistrates' Court Bill of 1994 will remember how much emphasis there was on names. In that case, as the noble Viscount, Lord Tenby, will recall, the proposal of the then Lord Chancellor to call justices' chief executives, as they are now called, chief justices' clerks, caused fury on the Cross-Benches and indeed the Bill was changed accordingly. And why not? We have a better title as a result.

I fully agree therefore that titles are important. But the Government are here pursuing a course which is legitimate from both sides of the fence and not creating an unnecessary fence. We announced our intention to modernise justice and to make it accessible to all. One of the ways we intend to do that is by establishing a unified Bench of professional judges in the magistrates' courts with a new title reflecting their status. The new title is important in recognising the work of the district judge magistrates' court and underlines the role of the unified Bench. But the important point to note is that it will not undermine the lay Bench, nor create a two-tier system; nor will it affect the number of lay magistrates. The new title was sought by the stipendiary magistrates and they have welcomed the offer of this new title, which realistically gives effect to their status as full-time professional judges. It will also assist in launching the new unified Bench, which is provided for in this part of the Bill, by confirming to the public the judicial status that stipendiaries currently hold.

It will also aid court users in that the district judge (magistrates' court) will possess a title which more accurately reflects the work and expertise. No damage is done whatever to the lay magistrates by this proposal, but it does reflect the real work which those who are now called stipendiary magistrates do. I therefore invite the noble Lord to withdraw his amendment.

Lord Gisborough

There were three points of note in that reply, one of which related to the unified Bench. It seems to me that if there is a stipendiary magistrate and a lot of other magistrates, that is a unified Bench, but a judge and other magistrates is hardly a unified Bench. "Modernisation", which is the key word, must not be confused with change for the sake of change.

When "clients", as I think they are now called, come before the court and find that they are in front of a judge instead of a magistrate, I believe they will be much more fearful. We know that the district judge can give only the same punishment as a magistrate, but I am sure that the clients will not know that.

This amendment is obviously well supported and I may well wish to bring it back on Report. However, at this stage, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 301 to 317 not moved.]

Clause 52 agreed to.

Schedule 8 [Unification and renaming of stipendiary bench]:

The Lord Chancellor moved Amendment No. 317A:

Page 78, line 22, leave out from ("for") to end of line 28 and insert ("any one of the police magistrates at any of the Metropolitan Police Courts" substitute "two justices of the peace", and (b) omit the words from "or if the offence,", in the first place, to "the county;".").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 317B:

Page 82, line 38, leave out from ("for") to end of line 40 and insert ("chief metropolitan stipendiary magistrate or a designated metropolitan magistrate" substitute "Senior District Judge (Chief Magistrate) or another District Judge (Magistrates' Courts) designated by him".").

The noble Lord said: In moving Amendment No. 317B, I shall speak also to Amendments Nos. 317C to 317G, and 330K and 330L.

The purpose of these amendments is to give the senior district judge (magistrates' court) the authority to designate which district judge (magistrates' court) should deal with cases under the Extradition Act 1989. This will ensure that only those district judges (magistrates' courts) with the appropriate knowledge and expertise in extradition law will hear cases brought before the courts.

In moving this amendment, as I have said I am speaking also to Amendments Nos. 330K to 330L in Schedule 11 which address minor changes to the wording of the Extradition Act to reflect the limitation of jurisdiction in extradition cases to district judges (magistrates' courts) designated by the senior district judge (magistrates' court). I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendments Nos. 317C to 317G:

Page 82, leave out lines 41 to 43 and insert—

("35.—(1) Section 9 (proceedings for committal) is amended as follows.

(2) In subsection (1) (person arrested in pursuance of a warrant under section 8 to be brought before a court consisting of a metropolitan magistrate or a sheriff), omit the words from "consisting" to the end.

(3) In subsection (2) (court of committal in England and Wales), after "Wales" insert "shall consist of the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates' Courts) designated by him and".

(4) In subsection (3) (court of committal in Scotland), after "Scotland" insert "shall consist of the sheriff of Lothian and Borders and".").

Page 83, leave out line 3 and insert ("In paragraphs 1(2)(b), 6(2), 7(1) and (2), 8(1) and 11, for "metropolitan magistrate").

Page 83, line 4, at end insert—

("( ) In paragraph 4(2) (order of Secretary of State for issue of warrant), for "a metropolitan magistrate" substitute "the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates' Courts) designated by him".

( ) In paragraph 5 (issue of warrant for apprehension on receipt of order by metropolitan magistrate)—

1. (a) in sub-paragraphs (1)(a) and (3), for "a metropolitan magistrate" substitute "the Senior District Judge (Chief Magistrate), or another District Judge (Magistrates' Courts) designated by him,", and
2. (b) in sub-paragraph (4), for "metropolitan magistrate, unless the metropolitan magistrate" substitute "District Judge (Magistrates' Courts) unless he".

( ) In paragraph 6(1) (hearing of case), for "metropolitan magistrate, the metropolitan magistrate" substitute "District Judge (Magistrates' Courts) he".").

Page 83, line 6, at end insert ("references to the Senior District Judge (Chief Magistrate) or another District Judge (Magistrates' Courts) designated by him were to any District Judge (Magistrates' Courts) and those references and the").

Page 83, line 9, leave out from ("Ireland;",") to end of line 11 and insert—

1. ("(b) in sub-paragraph (1)(c), for "the stipendiary magistrate," substitute "any District Judge (Magistrates' Courts), or the", and
2. (c) omit sub-paragraph (2).").

On Question, amendments agreed to.

Schedule 8, as amended, agreed to.

Clauses 53 and 54 agreed to.

11. 45 p.m.

Clause 55 [Areas outside Greater London]:

Lord Gisborough moved Amendment No. 318:

Page 30, line 44, at end insert ("; and

(c) such functions relating to matters of an administrative character or a non-judicial character as they may be authorised to undertake.").

The noble Lord said: Clause 55 changes significantly the role of the magistrates' courts committees. Hitherto, committees have been responsible for the efficient and effective administration of magistrates' courts.

That remit does not extend to the organisation of the local Benches. Advisory committees recommend the appointment of justices, and the local Benches elect their chairmen and deputy chairmen, and constitute panels and committees. The Benches are responsible for all judicial actions which include the listing of cases. The distinction between the role of the Bench and that of the committee is important. It establishes the divide between the judiciary and the administration. The courts exercise a judicial discretion in respect of individual cases and the committees do so in respect of the management of resources. To maintain that delicate balance, Clause 55 should make it abundantly clear that any functions which are conferred or imposed on the committees should be of an administrative or non-judicial character.

The fact that non-magistrate members of the committees may become a majority, some of whom could be local politicians, may compromise the magistrates and the Benches if the organisation of Benches becomes a responsibility of the magistrates' courts committees. It is therefore important that the committees' remit is clearly defined within acceptable limits. I beg to move.

Lord McIntosh of Haringey

I fully recognise the seriousness of the issue to which the noble Lord refers in this amendment and I do not want to do anything other than take the amendment seriously, but it is unnecessary.

The definitions of the functions of MCCs outside Greater London, as set out in Section 27(1) of the Justices of the Peace Act 1997, are unchanged by Clause 55. That reflects the position since the Police and Magistrates' Courts Act 1994. The 1997 Act was the consolidation Act. The position is working well.

Clause 55 merely splits the old Section 27(1) into new Sections 27A and 27B. The substantive changes to Section 27 are to replace the provisions of Section 27(2) onwards with new Sections 27A and 27B. There are two reasons for that. I am going outside the literal terms of the noble Lord's amendment because the issue is important. First, that is consequential with the establishment under the Bill of a Greater London magistrates' court authority. Secondly, MCCs are currently defined in terms of local government areas such as counties and metropolitan districts. Continuing amalgamations mean that the definition of the committee area in primary legislation is no longer reflected by the reality on the ground. Committees now increasingly comprise more than one defined area and the area definition in Section 27 of the Justices of the Peace Act 1997 is becoming obsolete.

I understand the concern behind the proposed amendments: that MCCs should not encroach upon judicial functions. The independence of legal advice provided by justices' clerks, and the duties and responsibilities of magistrates, are protected by Section 48 of the Justices of the Peace Act. The MCC has no locus in the judicial process. This clause does not change that.

The primary purpose of this clause is to ensure the easy identification of MCCs in England and Wales. The clause removes the definition of MCCs in terms of local government areas and replaces it with one where MCCs are defined by order. It does not amend the procedure for reorganising an MCC or the definition of its function as established under the 1994 Act. There will continue to be statutory consultation on proposed local changes. On that basis, I invite the noble Lord to withdraw his amendment.

Lord Gisborough

I thank the noble Lord for that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clauses 56 and 57 agreed to.

Clause 58 [Standard goods and services]:

Lord McIntosh of Haringey moved Amendment No. 318A:

Page 35, line 14, leave out from ("requiring") to end of line 16 and insert ("every magistrates' courts committee, or every specified magistrates' courts committee, to obtain for the performance of any function referred to in section 55(1) above").

The noble Lord said: In moving the above amendment I shall speak also to Amendment No. 318B. The amendment has the effect of applying a technical clarification to Clause 58, making it clear that the reason why the MCC is being required to obtain particular goods or services is for the proper performance of its functions in the context of Section 55(1) of the Justices of the Peace Act 1997. The amendment also makes explicit that any regulations made may set a specific time by or at which the goods or services should be obtained.

Clause 58 allows the Lord Chancellor, if he considers that it would be in the interests of the efficiency and effectiveness of the magistrates' courts generally, to make regulations to require all MCCs, or specified MCCs, to use specified goods or services, or goods or services of a specified description. For example, the Lord Chancellor may require MCCs to purchase goods or services from a particular supplier where the department has negotiated a national contract on beneficial terms. Alternatively, he may require MCCs to purchase goods or services of a specified description so that they are compatible with those used by other MCCs (or other agencies), but leave it up to the MCC (or the paying authority) from whom the items are to be obtained. It is particularly in relation to new technology that it is considered that the proposed power will be most useful, but it could also be used in respect of other items, such as court forms.

I well remember my noble friend Lady Hilton of Eggardon recalling from her days in the Metropolitan Police that there were five police forces operating in the area around the M.25. Three different telecommunications systems applied to those forces, but they could not communicate with each other. I hope that these two amendments go some way towards ensuring that that does not happen in the magistrates' court service. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 318B:

Page 35, leave out lines 22 to 25 and insert—

("(2) Regulations made by virtue of subsection (1) above may include provision requiring magistrates' courts committees to obtain the specified goods or services, or goods or services of the specified description—

1. (a) from a specified person or person of a specified description;
2. (b) at or by a specified time; or
3. (c) both from such a person and at or by such a time.").

On Question, amendment agreed to.

Clause 58, as amended, agreed to.

Clause 59 [Qualification for appointment]:

On Question, Whether Clause 59 shall stand part of the Bill?

Lord Kingsland

If Clause 59 is to stand part of the Bill, then, in my submission, certain changes will have to be made to Clauses 60 and 61. The provisions in all three clauses allow further encroachment by the courts' committee, and its chief executive, on the independence of the judiciary. The magistrates are supported by their professional advisers—that is to say, the justices' clerks. Section 45(4) of the Justices of the Peace Act 1997 provides that, the functions of a Justices' Clerk include giving advice to the justices to whom he is clerk at their request about law, practice or procedure on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them". Section 45(5) goes on to state that, the powers of a Justices' Clerk include, at any time when he thinks he should do so, bringing to the attention of those justices any point of law, practice or procedure that is or may be involved in any question so arising". Through those provisions, the justices' clerk has, traditionally, brought to the attention of his justices changes to the law. The lay justice cannot, for example, be expected to pick up a new piece of legislation or read all the cases relevant to his or her area of work. Justices rely on their justices' clerks to bring relevant law to their attention, and then to advise on its interpretation. Under Clause 60, the Government propose that justices' clerks must now carry out this responsibility under the direction of the chief executive; and Clause 59 provides that this person need no longer be qualified in the law.

In practice this may mean that, at bench meetings and at magistrates' training sessions, the justices' clerk can be directed to give the interpretation of new legislation that is most favoured by the executive. It is not good enough for the Government to suggest that the independence of the judiciary is preserved by the fact that the justices' chief executive cannot direct the justices' clerk when advising a justice, or justices, in an individual case. If the chief executive has given a direction on the advice to be given through correspondence, at bench meetings or in training sessions, what credibility has the justices' clerk who, in the privacy of the retiring room, then advises justices in an individual case and says, "Ignore what I told you at the bench meeting, in my circular and in the training—what I say to you now is contrary, yet correct, advice"?

The provisions of Clause 61(5) are also of concern to both the Magistrates' Association and the Justices' Clerks' Society. The Lord Chancellor will know that a working group on the judicial and administrative boundary in magistrates' courts was set up by his officials and yet, after 12 months of work, failed to come up with a clear definition of what work could be described as truly judicial and what work could be defined as administrative. The noble and learned Lord's officials were unsuccessful in drawing this distinction; it now appears that the noble and learned Lord is going to draw the distinction through statute.

He does so by defining all of the justices' clerks' functions as administrative—apart from giving advice to justices of the peace in an individual case and functions conferred on them when they act as a single justice. What then of the listing of cases? This is a function carried out by justices' clerks on behalf of their justices. In his speech on judicial independence, the noble and learned Lord the Lord Chief Justice quoted the then Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, from a lecture he gave on 6th March 1991. My noble and learned friend Lord Mackay of Clashfern said in relation to judges: Their function is to decide cases and in so doing they must be given full independence of action, free from any influence. But in order to preserve their independence, the judges must have some control or influence over the administrative penumbra immediately surrounding the judicial process. If judges were not, for example, in control of the listing of cases to be heard in the courts it might be open to an unscrupulous Executive to seek to influence the outcome of cases … by ensuring that they were listed before judges thought to be sympathetic to a point of view or simply by delaying the hearing of a case if that seemed to advantage the public authority concerned". If Clause 61(5) is enacted, as presently drafted, in my submission listing becomes defined as an administrative function in magistrates' courts.

Viscount Tenby

I wish to make a brief observation about this matter. Of course many of my birds will already have been shot by the time I move my amendments because these matters are inextricably mixed. In fact I do not know why some of them were not grouped together. I have no intrinsic objection to a lack of a legal qualification for a justices' chief executive because it seems to me that you have to get talent wherever you can get it, but all other things must be equal. That point has been ably made by the noble Lord, Lord Kingsland, in opposing this clause.

I mention briefly in passing that the proposition in Clause 56—the Committee need not worry, I am not going back to it—that the number of co-opted members on an MCC might be increased from the present ceiling of two also looks attractive were it not for the fact that so far only about two MCCs out of 84 have even got as far as two.

Midnight

Lord Gisborough

Perhaps I may speak to my Amendments Nos. 319 to 322.

Lord McIntosh of Haringey

The noble Lord can do that; however, the grouping was agreed, not by the Government, but by noble Lords who are taking part. I was proposing to say that I should treasure the lapidary words of the noble Lord, Lord Kingsland, in my heart, but that they had nothing whatever to do with Clause 59 stand part. I should much prefer to debate the issues of detail in relation to Clauses 60 and 61 on the specific amendments tabled by the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby. In that way, we have something that we can get our teeth into.

I hope that the noble Lord, Lord Kingsland, without repeating himself afterwards, will accept that it would be better to let Clause 59 stand part and then debate specific amendments.

Lord Kingsland

With great respect to the noble Lord, as I said at the outset, my attitude to the wording of Clause 59 will depend very much on what the noble Lord's reaction is to the amendments to Clauses 60 and 61. If the noble Lord does not intend to accept those amendments, I shall oppose the Question that the clause stand part of the Bill. So, with respect, in dealing with my submissions on Clause 59, the noble Lord has to deal with questions relating to Clauses 60 and 61.

Lord McIntosh of Haringey

Amendments are proposed to Clauses 60 and 61. I want to do the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby, the courtesy of hearing their arguments on those amendments, and then I propose to respond to them. It would be discourteous of me to do otherwise.

Clause 59 removes the requirement that a person may not be appointed as a justices' chief executive without specified legal requirements. I commend the clause to the Committee.

Clause 59 agreed to.

Clause 60 [Role]:

Lord Gisborough moved Amendment No. 319:

Page 36, leave out lines 7 to 10.

The noble Lord said: In speaking to Amendments Nos. 319 to 322 I hope that I shall not repeat too much of what the noble Lord, Lord Kingsland, has said.

Recently, the previous Lord Chancellor stated that MCCs are important protectors of judicial independence. They must maintain the boundary between administration and judicial decision-making.

During the passage of the Police and Magistrates' Courts Act 1994, the then Lord Chancellor laid great stress on the importance of the judicial independence of the courts. The Act defined clear responsibilities for magistrates' courts committees and provided for the appointment of justices' chief executives, whose duties were also outlined.

To reflect the concerns acknowledged by the then Lord Chancellor, Section 48 of the Act recognised the risk of magistrates' courts committees and justices' chief executives interfering with the independence of a justices' clerk and legal staff in relation to legal functions and therefore provides that such officers shall not be subject to the direction of the committee or the justices' chief executive when performing legal functions. Only the justices' clerk, and through him his staff, has the statutory responsibility of giving advice to magistrates.

The 1994 Act, now incorporated in the Justices of the Peace Act 1997, makes a clear and crucial distinction between the justices' clerk as a legal adviser and the justices' chief executive as the executive officer and resource manager of the magistrates' court committee and defines their separate responsibilities.

In the White Paper, Modernising Justice, the Government's stated intention is to improve the management of magistrates' courts and the legal support given to lay magistrates by making a clear distinction between the two functions. Those advising magistrates need to be able to concentrate upon that important function.

I support the Government's contention that dedicated and skilled administrators who are fully engaged on that task are required to manage a modern magistrates' courts service. Justices' chief executives support committees in planning and managing the efficient and effective administration of the courts in the area.

At present, justices' clerks continue to be responsible in primary legislation for many administrative matters, often delegated to administrators. It is these powers and duties which can be transferred to the justices' chief executive under Clause 61. However, duties of a legal and judicial nature which are not protected by the provisions of Section 48 and the Justices of the Peace Act 1997 must never be subject to the direction of a justices' chief executive.

The temptation for justices' chief executives to meet government targets in the guise of co-ordinated and planned strategies, based upon performance indicators and unit costs with the prosecuting authorities at the expense of dispensing justice impartially, fairly and effectively, will be called into question.

The basis of the proposed new Section 41(6) of the Justices of the Peace Act 1997 in Clause 60 is fundamentally and constitutionally flawed. If a person has a statutory duty to perform, he must do it in an unfettered way. If the Government do not wish a person to possess such powers, then remove him and place him in some other office. Do not compromise this situation by the directions of another, as it could compromise the very foundations of judicial independence and public confidence in it. If such a transfer is to take place, then surely Parliament must scrutinise those powers. It is not right that they should merely be defined by the Lord Chancellor in some statutory instrument.

Even the magistrates' courts committee cannot direct the justices' clerk under the clause. We should ensure that in judicial and legal matters the justices' chief executive should not do so.

I beg to move the amendment to protect the judicial independence of the justices' clerks and that of the magistrates.

Lord Phillips of Sudbury

At this time of night, I intend to make only one point in support of the underlying purpose of the two amendments which are grouped together. I am aware that the noble Lord, Lord Kingsland, and the noble Viscount, Lord Tenby, have already referred to the underlying principle, which I am sure no one in the Committee would seek to subvert. It is to retain to the justices their full judicial powers, untrammelled by the intervention of a clerk or a justices' chief executive.

I wish to ask the Lord Chancellor to consider the impact of Clause 60(1) in so far as it would introduce into the Justices of the Peace Act 1997 a new Section 41. I believe that it is not currently clear. If one reads new Clause 41(1) together with new Clause 41(5) and then tracks over to Clause 61(5) of the Bill, it is not clear—and obviously the matter needs to be examined—that the concerns raised by the two amendments are met.

As I read it, under new Clause 41(5), everything that a justices' chief executive may do shall be subject to directions given him by the magistrates' committee. If that is correct, if every function that the justices' chief executive has under the Bill is subject to the directions of the magistrates' court committee, I believe that the anxieties of those proposing the two amendments are met. But I am not sure that that is the case when I read the three clauses. It is not clear and it would be helpful to have a response.

Lord McIntosh of Haringey

The effect of Amendment No. 319 would be to remove the subsection which provides that it is the duty of the justices' chief executive to make arrangements for the effective and efficient administration of the magistrates' courts within the area of the magistrates' courts committee which employs him as chief executive.

The post of justices' chief executive, as it is now properly called, we agree, was created in 1994 to carry on the day-to-day administration of the courts. Every magistrates' courts committee has long since appointed a justices' chief executive to manage the administration. The time is now ripe to look again, in the light of this experience, at how the relationship between the committee and the chief officer works.

Many reports by the Magistrates' Courts Service Inspectorate highlight the need for committees, while keeping a close watch on performance, to step back from operational management. The committee is there to decide strategy and set standards and to monitor and be accountable for implementation and achievement.

Clause 60 removes the committee's responsibility for allocating tasks among staff and determining administrative procedures. The day-to-day running of the courts' committees' area is the responsibility of the justices' chief executive.

This clause achieves that arrangement. It clarifies the responsibilities of justices' chief executives as line managers for all staff of the committee. It places the responsibility for allocating tasks and determining procedures with the chief executive. Clause 60 clarifies the relationships between and the functions of the committee and its officers. That clarity is important to achieve better management and improved accountability in the administration of magistrates' courts. It is appropriate for the modern management of today and in the future.

New Section 41, subsection (5), confirms that a justices' chief executive shall perform his duties in accordance with any directions given to him by the committee. The justices' chief executive is ultimately accountable to the committee for the efficient and effective administration of the magistrates' courts in the area. If Amendment No. 319 were accepted it would remove the basis on which the day-to-day duties of running magistrates' courts are allocated. No one would have responsibility; the noble Lord's amendment would leave a lacuna.

The effect of Amendments Nos. 320 to 322 would be to extend the provisions which protect the independence of justices' clerks in the exercise of their duties, as set out in Section 48 of the Justices of the Peace Act 1997, the consolidation Act. The new Section 41 introduced in Clause 60 makes it clear that the justices' chief executive is responsible for making arrangements for the efficient and effective administration of the magistrates' courts in his area. The justices' chief executive may give directions to any of the staff of the committee, including justices' clerks, in respect of those administrative responsibilities and any other functions conferred on them by or under any enactment. It is clearly appropriate for him to do so.

There is one important exception to these powers of direction in Clause 60, and that is to protect the independence of the judicial process contained in Section 48 of the Justices of the Peace Act. Noble Lords may recall that the separation of judicial and administrative functions was debated in 1994. I do not conceal that those were difficult debates; I took part in them from the Benches opposite. As the then Lord Chancellor observed during the course of Third Reading, the essential function of the justices' clerk is to advise his Bench in an individual case. Parliament accepted that it is possible to differentiate between judicial and administrative functions.

The integrity of the judicial process in deciding individual cases must be entirely free from direction. When justices' clerks or their deputies are advising magistrates in individual cases, or when they are exercising their own judicial powers, Section 48 of the Justices of the Peace Act provides that independence. The new Section 41, which is inserted by Clause 60 of the Bill, makes it quite plain that justices' chief executives may not give directions to justices' clerks in relation to matters set out in Section 48. Moreover, it is quite clear from the new Section 41 that the responsibilities of the chief executive relate to the efficient and effective administration of the magistrates' courts for the area and not to the decision-making process in individual cases.

We have heard of instances where justices' chief executives have purported to issue directions that would have the effect of interfering in individual cases; for example, in the area of fine enforcement a direction that fines must be set at a particular level, or remitted, or not imposed in some circumstances. If that has happened, it is entirely wrong. In those examples, Section 48 is not being applied as it should.

There is no reason why there should not be general policies, which have a part to play in promoting consistency of treatment. There may be several justices' clerks within the area of a magistrates' courts committee; the obvious person to promulgate information across the whole area, often through the justices' clerk, is the chief executive. For example, I would expect justices' clerks to be informed about the minimum amount that may be collected by credit card payment before the administrative charge exceeded the amount of the payment. Directions may go as far as saying that this information must be passed to magistrates, but it must always be made clear that such information is, in every individual case, subject to the absolute discretion of the person holding the judicial discretion.

There are other examples: the committee's general policy on fine enforcement, including such matters as which types of enforcement officers are generally to be used, with which bailiff companies the committee holds a contract, and the types of payment method available; good practice or procedure the Government wish to promote as helping to reduce delays; and standard operating procedures on such matters as the offices at which certain documents are to be lodged, and which courthouses have suitable facilities for disabled people.

I have not heard any convincing arguments as to why a justices' clerk should not be subject to direction by his line manager, the justices' chief executive, for all functions other than those protected by Section 48 of the Justices of the Peace Act. On that basis I invite the noble Lord to withdraw the amendment.

Lord Gisborough

I am grateful to the noble Lord for his long explanation which will be read with very great interest by the justices' clerks who are very concerned about this matter. The noble Lord has also answered a good number of the points arising on Amendments Nos. 323 to 326. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 320 to 322 not moved.]

12.15 a.m.

Viscount Tenby moved Amendment No. 322A:

Page 37, line 4, at end insert—

("( ) after "functions" insert "and powers";").

The noble Viscount said: In moving Amendment No. 322A I should like to speak at the same time to Amendment No. 322B. Since the shades of night are falling fast and it has been a long day perhaps the Committee will allow me to encompass Amendment No. 326ZA since all of these amendments are based on the same concern; namely, the independence of the justices' clerk in giving legal advice to his justices, which can be described only as the nitty-gritty of this clause. We have skirted round this for quite a time with various amendments that have come and gone. I am sorry to retrace my steps a little but I shall be as quick as possible.

I believe that the provisions concerned with the future relationship between the justices' chief executive and the Bench's justices' clerk entirely justify the concern which is evident within the magistracy and has been expressed in the Committee tonight. What it comes down to is that in future the justices' clerk will be unfettered in giving advice to his justices only on legal matters in individual cases and at all other times he may be subject to the directions of the justices' chief executive who may not be qualified in legal matters.

One of the provisions of the Bill is that a legal qualification need not be a requirement for appointment as a justices' chief executive. I have no quarrel with that proposal. To ensure that the best business and managerial talent is available to MCCs must make sense. I have been long associated with an MCC which I believe is the only one in England and Wales so favoured. I use the word "favoured" quite deliberately. But the corollary of this is that legal matters must be left in the domain of the justices' clerk.

I quote one example. Since criminal justice Bills have been annual events for the past 10 years, training takes on even greater importance in all magistrates' courts. The only people who are qualified to give such instruction are justices' clerks. I would be grateful to receive the assurance of the Minister that the role of the justices' clerk in that area of training is absolutely guaranteed. Were the task to be undertaken by anyone else there would not be the necessary guarantee of impartiality. For example, who is to say that a spin in favour of a government's desired option may not be imparted to some new legal provision?

There are other duties that should be undertaken by justices' clerks. Can anyone honestly contend that listing is not one of them? So that I should not be thought to be one of the unhelpful diehards, in principle, I do not see why the collection of fines, other than judicial decisions relating to enforcement, cannot come within the compass of a justices' chief executive. I believe that that is an administrative function.

I return however to the overriding concern created in these clauses which is the threat to the independence of legal advisers. Unless one clearly delineates—the Minister has been kind and wise enough to refer to the difficulty over nomenclature that arose when we discussed the Police and Magistrates' Courts Act—one has a grey area. If I understand it correctly, the magistracy says that there should not be any grey areas but only black and white areas so that everyone knows where they stand. Let the justices' chief executives and justices' clerks know what they can and cannot do. The purpose of my amendment is to refer to the correct description of the duties of the justices' clerk in the Justices of the Peace Act 1997. I beg to move.

Lord McIntosh of Haringey

I am grateful to the noble Viscount for proposing his four amendments together. It is more sensible. Amendments Nos. 322A and 322B propose changes to Clause 60, which addresses the role of the justices' chief executive. The effect of the amendments—although they are technically defective—is to extend the protection from direction provided in Section 48 of the Justices of the Peace Act 1997. I believe that the amendments are unnecessary. They seek to extend Section 48 when, as I said in response to the earlier amendment, what is needed is the correct application of Section 48.

The new Section 41 of the Justices of the Peace Act that Clause 60 introduces makes it plain that justices' chief executives may not give directions to justices' clerks in matters set out in Section 48.

I now turn to the two amendments to Clause 61. Clause 61 enables the magistrates' courts committee to separate the legal and administrative functions undertaken in the committee's area. Subsection (1) brings into effect Schedule 9 which makes amendments to existing legislation, transferring certain administrative functions of justices' clerks to justices' chief executives. Transferring the responsibility for those tasks will enable the chief executive to delegate to any appropriate member of staff which may, of course, include the justices' clerk. That is a decision that can be made locally.

I turn to Amendment No. 326YA, the effect of which would be to further qualify the description of administrative functions. As I said, I do not intend to transfer the responsibility from the justices' clerk to the justices' chief executive for the provision of legal advice generally; nor do we wish to interfere in the relationship between the justices' clerk and the Bench of magistrates.

The noble Lord, Lord Phillips of Sudbury, referred to the wording of subsection (5). The purpose of that subsection is to give reassurance. However, we are willing to look again at the drafting of subsection (5) in the light of what has been said. In turn, that could have an effect on the wording of Clause 60 that we have debated already. To that extent, there is an opening.

Finally, I turn to Amendment No. 326ZA, the effect of which would insert two new subsections in Clause 61. I said earlier that it is not the role of the chief executive to interfere in individual cases. The chief executive cannot and must not interfere in the judicial process which is fully protected within the existing provisions of Clause 48 of the Justices of the Peace Act 1997. The further definition that subsection (7) would introduce specifies a description of judicial function for justices' clerks which is simply not acceptable. It would bring about exactly the position I mentioned earlier where the chief executive was prevented from giving directions to justices' clerks on matters of information such as good practice. I recognise that that is a sensitive area. It is appropriate to discuss the matter now and the department is in consultation and correspondence with a number of interested parties on these matters. It is vital to preserve the integrity of proceedings in the magistrates' courts and we believe that the provisions in Clauses 60 and 61, subject to what I said about subsection (5), will serve to achieve the delivery of better quality legal advice to lay justices while simultaneously ensuring that the responsibility for the efficient administration is appropriately placed with the chief executive.

As I said, I shall consider any further representations, and if necessary bring forward further amendments. I hope the noble Viscount is reassured and that he will therefore withdraw his amendment.

Viscount Tenby

I am grateful to the noble Lord the Minister for his courtesy in dealing so fully with this important matter - and it is important. I may be suffering from late night languor, but I hope I have detected a chink of light and sweet reasonableness in what he said. I shall wait until the cold light of morning to study it more closely. In the meantime, I beg leave to withdraw the amendments.

Amendment, by leave, withdrawn.

[Amendment No. 322B not moved.]

Clause 60 agreed to.

Clause 61 [Transfer of administrative functions of justices' clerks]:

Lord Gisborough moved Amendment No. 323:

Page 37, line 16, leave out subsections (2) to (4).

The noble Lord said: Most of the points I would have made have been covered. However, I wish to raise two matters.

First, the noble and learned Lord the Lord Chancellor should not by statutory instrument be allowed to amend what is and what is not administrative. It must be a matter which Parliament alone should determine because of the consequences of judicial independence.

Secondly, I am not entirely sure that the noble and learned Lord has considered all the ramifications which transferring control functions to the justices' chief executive will cause in relation to the European Convention on Human Rights. Will the justices' chief executive appear in person when prosecuting fine or maintenance defaulters as the justices' clerk will no longer be able to act in the same capacity of collecting officer because of the danger of partiality? I beg to move.

Lord McIntosh of Haringey

I am grateful to the noble Lord for not repeating the arguments which we have adequately rehearsed, so I shall respond only to his specific points.

The noble Lord complains that subsection (2) provides for the Lord Chancellor to make an order by statutory instrument to transfer administrative functions and says that this should be a matter of primary legislation. I cannot accept that, and neither did the Delegated Powers and Deregulation Committee. These are matters which may change from time to time and it would be clumsy for it to wait for a suitable opportunity to come back to Parliament.

The noble Lord's second point is more technical. If I may, I shall write to him on that. On that basis, I hope that he will withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 324 to 326YA not moved.]

Lord Kingsland had given notice of his intention to move Amendment No. 326ZA:

Page 37, line 31, at end insert—

("(6) In performing a duty or function imposed or conferred on him by section 41 of the Justices of the Peace Act 1997 or by or under any other enactment, a justices' chief executive must not do anything which—

1. (a) amounts to performance of a judicial function, or
2. (b) might influence anything done by a justice of the peace or justices' clerk in the performance of a judicial function.

(7) For the purposes of subsection (6), a judicial function is—

1. (a) any function of a justice of the peace, and
2. (b) any function of a justices' clerk which is not an administrative function.").

The noble Lord said: I spoke to the amendment when addressing Clause 59. The noble Lord has effectively replied to it in the course of his various replies to the noble Viscount, Lord Tenby, and my noble friend Lord Gisborough. I shall therefore not move the amendment.

[Amendment No. 326ZA not moved.]

Clause 61 agreed to.

Schedule 9 agreed to.

Clauses 62 to 65 agreed to.

Clause 66 [Execution by person not in possession of warrant]:

Lord McIntosh of Haringey moved Amendment No. 326A:

Page 41, line 42, after ("order);") insert—

• ("( ) a warrant under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 (unwilling witnesses);
• ( ) a warrant under paragraph 3(2) of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 (offenders referred to court by youth offender panel);").

The noble Lord said: In moving Amendment No. 326A, I speak also to Amendments Nos. 326B and 331. These amendments make minor technical changes to Clause 66 and Schedule 11 to ensure consistency with certain provisions in the Youth Justice and Criminal Evidence Bill and the Crime and Disorder Act 1998.

Clause 66 of the Access to Justice Bill inserts a new Section 125 into the Magistrates' Courts Act 1980. Among other things this draws a distinction between those warrants which only a police officer may execute without the warrant being in his possession, and the warrants that may also be executed by civilians in similar circumstances. The list of warrants that may be executed by the police alone is identical to that which currently appears in Section 125 of the Magistrates' Courts Act.

However, provisions in the two other statutes, both of which affect the list in the current Section 125, are due to be introduced before Clause 66 is implemented. Paragraph 44 of Schedule 8 to the Crime and Disorder Act 1998 adds to the list warrants for the arrest of a reluctant witness. Paragraph 7 of Schedule 3 to the Youth Justice and Criminal Evidence Bill will also, if enacted, add to the list warrants for the arrest of an offender referred to the court by a youth offender panel. The amendment to Schedule 11 therefore provides for their appeal once Section 66 comes into force. The amendments to Clause 66 itself ensure that these provisions are added to new Section 125C which will re-enact the existing list of warrants which a constable may execute without the warrant being in his possession. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 326B:

Page 41, line 43, leave out ("or 97") and insert (", 97 or 97A").

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

Clause 67 agreed to.

Clause 68 [Justices and clerks: immunity from costs]:

Lord Falconer of Thoroton moved Amendment No. 326C:

Page 43, line 3, leave out from beginning to ("House") in line 6 and insert ("No regulations may be made under subsection (4) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each").

The noble and learned Lord said: The government amendments to Clauses 68 and 72 provide that regulations under these clauses should be made by affirmative procedure.

The government amendments do not, however, cover the provisions in Clause 68 relating to Northern Ireland. The position in relation to Northern Ireland is different, for reasons I will explain. I therefore ask your Lordships to reject Amendment No. 327, the purpose of which is to provide that Northern Ireland regulations should also be subject to the affirmative procedure.

Clause 68 inserts a new section into the Justices of the Peace Act 1997 to give justices of the peace and others immunity against costs orders. It makes similar provisions in respect of resident magistrates, justices of the peace and clerks of petty sessions in Northern Ireland.

Clause 72 inserts a new Section 2A into the Taxes Management Act 1970 to provide general commissioners of income tax with immunity from costs, or in Scotland expenses, arising from the execution of their duties.

To protect the interests of other parties to any proceedings, each of the new provisions also gives a court the power to order payment by the Lord Chancellor of costs which would, but for the new provisions, have been ordered to be paid by the judicial officer who was party to the proceedings. In respect of general commissioners of income tax in Scotland, expenses may be ordered to be paid by the Secretary of State.

The clauses provide for the Lord Chancellor, or in Scotland the Secretary of State, to make regulations specifying the circumstances in which a court may exercise its power to order payment of costs and how the amount of any costs award is to be determined. Under the clauses as they are drafted those regulations would be made under negative resolution procedure.

The Delegated Powers and Deregulation Committee concluded that the regulations should be subject to additional parliamentary scrutiny provided by the affirmative resolution procedure.

The Government recognise that the regulations will deal with the exercise of the discretion of the courts. My noble and learned friend the Lord Chancellor has accepted the conclusion of the Delegated Powers and Deregulation Committee on this point and brings forward these amendments accordingly. However, as I have said, an exception needs to be made in respect of the procedure for Northern Ireland regulations.

The effect of Section 2 of Clause 68 is to amend the Magistrates' Courts (Northern Ireland) Order 1981. The practice is that subordinate legislation under an Order in Council under the Northern Ireland Act 1974 is made under negative procedure. The fundamental reason for this is wholly practical. Parliament simply could not give enough time to deal with Northern Ireland subordinate legislation if it were dealt with on an equivalent basis to subordinate legislation for England and Wales. This is a problem which I hope political progress in Northern Ireland will eventually resolve. In the meantime, I believe it right to maintain the principle that has been followed since 1974 in respect of Northern Ireland legislation and therefore to provide for Northern Ireland regulations to be made under negative procedure.

My noble and learned friend the Lord Chancellor realises that he is not fulfilling the letter of the commitment given earlier, in the light of the Select Committee report, to make Clause 68 subject to affirmative resolution. I am sure that the Committee will understand why, on reflection, he felt that Northern Ireland practice should be maintained. He is happy to provide the affirmative resolution for the powers in Clause 68 which cover England and Wales and the powers in Clause 72 which are UK-wide.

On Question, amendment agreed to.

[Amendment No. 327 not moved.]

Clause 68, as amended, agreed to.

Clauses 69 to 71 agreed to.

Clause 72 [General Commissioners: immunity from costs and expenses]:

The Deputy Chairman of Committees (Lord Lyell)

I must advise the Committee that if Amendment No. 327A is accepted, I shall not be able to call Amendment No. 328.

Lord Falconer of Thoroton moved Amendment No. 327A:

Page 45, line 10, leave out from beginning to ("House") in line 12 and insert ("No regulations may be made under subsection (4) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each").

On Question, amendment agreed to.

[Amendment No. 328 not moved.]

Clause 72, as amended, agreed to.

Clause 73 agreed to.

Clause 74 [Indemnity]:

Lord Falconer of Thoroton moved Amendment No. 328A:

Page 46, line 22, leave out ("against him").

The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 328B to 328D. Clause 74 amends the Coroners Act 1988 to make provision for coroners to be indemnified by their councils where they are respondents in legal proceedings brought against them in the course of their coroner duties. The purpose of this amendment is to extend the scope of that indemnity so that coroners may also be reimbursed in cases where they have initiated legal proceedings in their capacity as coroners.

Coroners will rarely need to take such action. However, after an inquest has been completed and the verdict given, it sometimes emerges that a mistake or error has been made which cannot be corrected other than by re-opening the inquest; or else new evidence comes to light which casts doubt on the verdict and which might justify a new inquest. In these circumstances, a coroner has no power to overturn the original inquest but may apply to the High Court for an appropriate order for a fresh inquest.

If a coroner decides to pursue such a course, his paying authority—the local council—is not at present required to reimburse him either his costs in bringing the proceedings, nor any costs which might be awarded against him as a result of the proceedings. Nor does the present clause offer the coroner protection since it limits indemnification to costs arising from proceedings brought against him.

The amendment is designed to rectify this anomaly. However, while we believe it is proper to require councils to reimburse coroners their costs where proceedings have been brought against them, we consider that, if the proceedings are to be brought by the coroner, it would be right to provide the council with an opportunity, in advance, to consider whether or not to indemnify the coroner in the light of the circumstances of the particular case. This would enable the council to consider, for example, whether it was reasonable to incur the costs which were likely to arise. In the event that a council refused consent, the coroner should have the opportunity to appeal, and the amendment provides for such an appeal to be made to the Secretary of State or to someone appointed by him for that purpose.

The amendment is concerned with providing proper protection both for coroners and their councils in circumstances where a financial liability may arise. It does not alter or limit the opportunities for applications to be made to the High Court for fresh inquests. I beg to move.

Lord Phillips of Sudbury

The proposed subsection (1A) refers to agreement "in advance". It seems to me that those words "in advance" may cause problems.

Lord Falconer of Thoroton

Perhaps I may write to the noble Lord on that matter.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 328B to 328D:

Page 46, line 32, at end insert—

("(1A) Subsection (1) above applies in relation to proceedings by a coroner only if and to the extent that the relevant council agrees in advance to indemnify him.

(1B) A coroner may appeal to the Secretary of State, or to any person appointed by the Secretary of State for the purpose, from any decision of the relevant council under subsection (1A) above.").

Page 47, line 17, leave out ("against him").

Page 47, line 27, at end insert—

("(2) Subsection (1) applies in relation to proceedings by a coroner only if and to the extent that the Lord Chancellor agrees in advance to indemnify him.").

On Question, amendments agreed to.

Clause 74, as amended, agreed to.

Clause 75 agreed to.

Schedule 10 [Transitional provisions and savings]:

Lord Falconer of Thoroton moved Amendment No. 328E:

Page 100, line 14, at end insert—

("Lord Mayor and aldermen of City of London

. The person who is the Lord Mayor of London, and the persons who are aldermen of the City of London, at the end of the period of two months beginning with the day on which this Act is passed shall be treated as having at that time been appointed in accordance with section 5 of the Justices of the Peace Act 1997 as justices of the peace for the commission area which includes the City of London; and, accordingly, subsection (1A) of section 6 of that Act (inserted by paragraph 23A of Schedule 7 to this Act) has effect in relation to them.").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 328F:

Page 100, line 20, at end insert—

(" . Any person who, immediately before the time when section 52 of this Act comes into force, is authorised under section 13(1)(a) or 19 of the Justices of the Peace Act 1997 to act as a stipendiary magistrate or metropolitan stipendiary magistrate shall be treated as having been appointed to be a Deputy District Judge (Magistrates' Courts) at that time for the remainder of the period for which he is so authorised.").

The noble and learned Lord said: With Amendment No. 328F I propose to make an amendment to Schedule 10, Part V, paragraph 20, in order to ensure that transitional arrangements are in place for the continued administration of justice by those acting stipendiaries who, when Clause 52 of the Access to Justice Bill becomes law, will be known as deputy district judges (magistrates' courts).

This amendment will allow for any person acting as a stipendiary magistrate or a metropolitan stipendiary magistrate immediately before Clause 52 comes into force to be taken as having been appointed to be a deputy district judge (magistrates' courts) at that time and his appointment to act will be treated as being for such period as represents the remaining duration of his authorisation to act as a stipendiary had Clause 52 not come into force.

Amendment No. 328G is proposed to deal with the changes of date of commencement of Clause 52 and the effect that that will have on paragraph 38 of Schedule 8 which makes transitional provisions in respect of the Legal Aid Act 1988. The three minor amendments, Amendments Nos. 332, 333 and 334, which I propose to Clause 78 will have the effect of altering the commencement of the provisions of Clause 52 of the Access to Justice Bill from two months after the Bill receives Royal Assent to such day as the Lord Chancellor may, by order made by statutory instrument, appoint.

The reason for this is that there are a number of existing statutory instruments which refer to stipendiary magistrates, metropolitan stipendiary magistrates or the chief metropolitan stipendiary magistrate which will need to be amended to substitute the title district judge (magistrates' courts) or senior district judge (magistrates' courts) and we wish to ensure that all those changes are made at the same time. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 328G:

Page 101, line 2, leave out from beginning to ("District") in line 6 and insert ("If paragraph 38 of Schedule 8 to this Act comes into force before the repeal by this Act of section 19(5) of the Legal Aid Act 1988, that provision shall have effect as if, in the definition of "proceedings for dealing with an offender as a fugitive offender" the reference to a metropolitan stipendiary magistrate were to a").

On Question, amendment agreed to.

Schedule 10, as amended, agreed to.

Clause 76 agreed to.

Schedule 11 [Repeals and revocations]:

[Amendments Nos. 329 and 330 not moved.]

Lord Falconer of Thoroton moved Amendment No. 330A:

Page 106, line 14, at end insert—

("6 & 7 Vict. c. 86.	The London Hackney Carriages Act 1843.	In section 24, the words from ", or, if he shall dwell" to "the said city,", the words "or justice" and the words ", or to some justice as aforesaid,".
16 & 17 Vict. c. 33.	The London Hackney Carriage Act 1853.	In section 18, the words from "or if the offence,", in the second place, to the end.")

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 330B to 330L:

Page 106, line 28, column 3, at beginning insert—

("In section 38(1), the definition beginning "London commission areas".")

Page 106, line 31, at end insert—

("1974 c. 47.

The Solicitors Act 1974.

Section 38(4).")

Page 106, line 38, column 3, leave out ("67(4), the second sentence") and insert ("67, in subsection (4), the second sentence and subsection (8)").

Page 107, line 10, column 3, at end insert—

("In Schedule 11, in paragraph 8(d), the words "and (8)".")

Page 107, line 28, column 3, at beginning insert—

	("Section 5(2)(b) and the preceding "and". In section 7(3), the words from "(whether" to "acting Chief Magistrate)". Section 21 (and the preceding heading). Section 23.
	In section 25, in subsection (1), the words ", other than the City of London," and subsection (3).")

Page 107, line 34, column 3, leave out from ("section") to end of line 35 and insert ("70, in subsection (1), the words from the beginning to "above," and, in subsection (2), the words "or to justices or magistrates for a county or non-metropolitan county" and the words "or to justices or magistrates for the City".").

Page 107, line 50, column 3, after ("14,") insert ("16(b) and the preceding "and",").

Page 108, line 4, at end insert—

("16 & 17 Vict. c. 33.

The London Hackney Carriage Act 1853.

In section 18, the words from "or if the offence,", in the second place, to "for the county;".")

Page 108, line 33, column 3, at end insert—

("In section 9(1), the words from "consisting" to the end.")

Page 108, column 3, leave out lines 40 and 41 and insert ("5(1)(b), the words "a metropolitan magistrate or" and paragraph 13(2).").

The noble and learned Lord said: With the leave of the Committee I shall move Amendments Nos. 330B to 330L en bloc. I beg to move.

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No. 331:

Page 111, line 18, at end insert—

("1998 c. 37.	The Crime and Disorder Act 1998.	In Schedule 8, paragraph 44.
1999 c. 00.	The Youth Justice and Criminal Evidence Act 1999.	In Schedule 3, paragraph 7.")

On Question, amendment agreed to.

Schedule 11, as amended, agreed to.

Clause 77 agreed to.

Clause 78 [Commencement]:

Lord Falconer of Thoroton moved Amendment No. 332:

Page 48, line 2, leave out (" 52") and insert (" 51").

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 333 to 335:

Page 48, line 2, leave out ("Schedules 7 and 8") and insert ("Schedule 7").

Page 48, line 4, leave out (", (2)").

Page 48, line 4, at end insert (", apart from the provisions specified in subsection (3).

(3) The provisions excepted from subsection (2)(e) are the repeal of section 67(8) of the Magistrates' Courts Act 1980 (and that in Schedule 11 to the Children Act 1989) contained in Part IV(1) of Schedule 11.").

The noble and learned Lord said: With the leave of the Committee I shall move Amendments Nos. 333 to 335 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 78, as amended, agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.

House adjourned at a quarter before one o'clock.