§ 4.55 p.m.
§ Second Reading debate resumed.
§ Lord Borrie
My Lords, the remainder of the debate may take other contributors to it by surprise. However, I had intended to apologise to the noble and learned Lord the Lord Chancellor for having the feeling that the Bill is not the more exciting of the criminal justice Bills being introduced in this parliamentary Session. As seems usual, the other place gets the first crack at the more controversial and interesting Bills and, only after it has finished debating them or, as is so often the case, completed its work without adequately debating them, do the Bills come here. Well, we must today muster as much patience as we can before we tackle the highly charged subjects of double jeopardy, the admission of previous convictions and the possibility of certain trials being by judge alone without a jury.
What this Bill and the Criminal Justice Bill now before the other place have in common is that they both have a foundation in the comprehensive and weighty report from Sir Robin Auld entitled Review of the Criminal Courts in England and Wales, published in October last year. My noble and learned friend the Lord Chancellor is to be congratulated on asking Sir Robin to fulfil this mammoth task. Whatever now happens regarding the outcome of these Bills, his report will for many years stand as a major source book for the facts and issues on all these matters.
What Sir Robin said about the management of magistrates' courts was that it was highly complex, a product of history and,an increasingly tortuous legislative overlay".That same sort of point can be made about many aspects of our criminal justice system.
When I was a newly called barrister in the 1950s, I spent a lot of time in magistrates' courts, usually prosecuting, and often in central London courts manned by professional stipendiary magistrates, now called district judges. Conditions have changed so much that I would not dream of drawing on my experience of magistrates' courts of 40-plus years ago as being particularly relevant today. But I will indulge in just one recollection to make a general point about judicial appointments.
One court building I went to frequently had two stipendiary magistrates sitting in adjacent courts. In one sat a stipendiary with a well-founded reputation for toughness in his verdicts and his sentencing. The other had completely the opposite reputation—extreme leniency was his watchword. Each had sat on the Bench for some 20 years. Each day they had more or less the same kind of caseload of petty cases and, although they had completely different attitudes, they both, I thought, had been in the job rather too long and suffered from an occupational hazard that was not good for justice.
43 I believe that many improvements have been made in the system since those years. Judges at all levels are given a much more varied diet of different kinds of cases and district judges—stipendiary magistrates—now have the prospect of promotion to the circuit bench. I like the flexibility mentioned by my noble and learned friend the Lord Chancellor in Part 6 of the Bill which will enable judges to take a different range of cases in different courts.
But I would like to be reassured by my noble and learned friend that there will be a degree of monitoring of judges' performances over their years of service and that they will have training opportunities to help keep their minds fresh to new legislation and fresh to new research in criminology and the penal system.
Compared with a much more modest number in my early days at the Bar, we now have some 150 stipendiaries and there may be some advantage in mixing professional and lay magistrates in certain criminal cases. Each kind of magistrate, the professional and the lay, could well benefit from such joint sittings, in the same way as Crown Court judges and lay magistrates do when they sit together on appeals from magistrates' courts in the Crown Court. Lord Justice Auld comments that in many areas today there is an atmosphere of resentment and distrust between the lay and professional magistrates. Working together, as lawyers and others do in, for example, employment tribunals, may be part of the answer.
The proposals in the Bill to unify court administration—I noticed, as I am sure we all did, the general approval for them of the noble and learned Lord the Lord Chief Justice—are sound. Following the unifying of court administration above the level of magistrates' courts in the Courts Act 1971, there has been a measure of unfinished business. Perhaps the Bill will finish the business of unification and sensible administration.
After all, the aim of the Bill is the worthy and proper one of better service for all those who have to do with the courts. I agree with the creation of national standards and a strategic direction from the centre under the new executive agency described by my noble and learned friend the Lord Chancellor in partnership with local court administration councils. As I understand it, to use a European word as it were, subsidiarity should be an essential principle of the new dispensation, with local accountability and responsiveness to local needs and, as Lord Justice Auld said,the maximum delegation of managerial responsibility and control of resources to an accountable local manager working in close liaison with the professional and lay judiciary".But, as has been said already in the debate, short as it has been so far, the Central Council of Magistrates' Courts Committees, in a briefing on the Bill, argues that the Government have not kept to the intentions 44 stated in the White Paper of July of this year, Justice for All. The Central Council of Magistrates' Courts Committees feels that local management boards have been relegated to being merely consultative bodies. Obviously it is difficult to get the right balance, here as elsewhere, between central strategic direction and local accountability, but clearly this is a sensitive area, as the noble Baroness, Lady Seccombe, indicated earlier. Bearing in mind the fine centuries-old tradition of service to the community of lay magistrates, without which the whole British criminal justice system would either collapse or have to be very radically altered, it is most important that magistrates do not feel that the views of their representatives will count for little. Magistrates—lay magistrates in particular—should be cherished and not spurned.
I welcome with enthusiasm the part of the Bill dealing with the enforcement of fines imposed by magistrates' courts. At present, 40 per cent of fines are never paid, and we know about the haphazard nature of fine collection and the variation in collection rates from one part of the country to another. In the words of the chairman of the Public Accounts Committee in another place, this has resulted in the payment of a fine as an almost voluntary activity.
I like the combination of sticks and carrots in the introduction of discounts for prompt payment and surcharges and other penalties for delayed payment. I listened to the points made by the noble Lord, Lord Goodhart, in regard to car clamping and the difficulties involved in clamping cars and the problems that might arise in selling them. The Committee may wish to consider with considerable care the implications of Schedule 2 in regard to that.
Generally, however, I commend the Bill and I hope that the House will give it an enthusiastic Second Reading.
§ 5.6 p.m.
§ Lord Mayhew of Twysden
My Lords, I associate myself warmly with the remarks of the noble Lord, Lord Borrie, in regard to members of the lay magistracy. I agree that they should be cherished and that it is very important that they should not feel that the views they hold about the provisions of the Bill will not be taken into account by the Government. It is a pity that the Magistrates' Association has not yet, as far as I am aware, publicly commented on the parts of the Bill that bear upon its courts. No doubt it will very shortly, and we should all heed what it has to say with great care.
As the noble Lord, Lord Borrie, said, it is true that the Central Council of Magistrates' Courts Committees has expressed great anxieties about certain proposals, to which I shall return in a moment. However, by way of preface, it is perfectly obvious that a great deal of work has gone into the preparation of the policy of the Bill, no doubt beginning with the massive work of Sir Robin Auld.
It seems to me that there is plenty of scope for rationalisation. I rather liked Sir Robin's point early in the report where he stated that one can scarcely talk 45 about a criminal justice system, so great is the mish-mash of overlapping ingredients—at least I think he said that; if he did not, I do—especially at local level. He referred to,a muddle of administrative complexities and responsibilities".As to previous and current well-intended efforts to address these problems, he stated:There are pilot studies, working parties, steering groups and reviews all over the place".For my part, I counted 49 current government research projects and pilots in Appendix 3 to the White Paper. So although I am not by temperament a centraliser or an interferer with something that seems to be working fairly well, I readily concede that there is ample scope at least for rationalisation in the criminal justice field.
However, I do not at present believe that the Bill's proposals for the magistrates' courts can be justified, either in pursuit of the objective of modernisation and greater efficiency, or at all. I am sorry to have to say that they constitute a quite unjustified exercise in centralisation, one which has the potential to impinge dangerously upon the independence of the lay judiciary.
I see no justification for turning justices' clerks into civil servants and, in the process, bringing them under the control of the Lord Chancellor and his department. I agree with the comments of my noble friend Lady Seccombe and the noble Lord, Lord Goodhart, on this matter.
What is the case for the proposed change? In a nutshell, it comes down to wide variations in performance. I do not doubt that there are such wide variations. But I should want to know rather more about the reasons why 87 days is taken to bring a case to completion in Bedfordshire, as opposed to 37 or so days in Surrey. I should want to know how many lay magistrates there are. I should want to know a good deal about local circumstances before I could know what weight to attach to that fact.
It seems to me inevitable that there will be wide variations. Goodness knows, there are wide variations in the Crown Courts—which are much more liable to direction from central authority than are the magistrates' courts. At present, I am far from persuaded that it is right to impinge, in the way the Bill does, on the present set-up in the magistrates' courts by turning justices' clerks into civil servants.
Under the present system, justices' clerks are appointed by the magistrates' courts committees. There is, it seems to me, ample scope for the selection of the candidates to be influenced by local considerations. I believe that to be very important—and for the following reason. The relationship between magistrates and their clerks is a very personal one. This was referred to with becoming modesty by my noble friend Lady Seccombe, who has been a magistrate for many years. One knows how intimate such a relationship needs to be if there is to be the necessary mutual trust that has been referred to.
46 The justices' clerk advises his or her Bench on technical matters in terms of law and on administrative matters. But he or she does not go into the retiring room with members of the Bench. They, and they alone, carry the burden of producing the adjudication. If members of the Bench do not have confidence in their clerk, I suggest that they must have the power to get rid of the clerk, because the system will riot work without such confidence. It is a local matter. The power that they have at present is by no means in practice a dead letter.
I am worried, but not surprised, by the opposition and the grounds for it that have been published by the central council of Her Majesty's courts' committees. The council believes that the clerk will not be able to serve two masters—it is seldom that anyone is able to do so. It is particularly important in this case, because in practice and in law the clerk will serve the Lord Chancellor alone. His career will be in the hands of the Lord Chancellor, or of his Permanent Secretary. A failure by his Bench to meet the target of the day will be his failure in professional terms, regardless of whatever local considerations have led his Bench to make the relevant decisions and set the relevant priorities.
It seems to me that there is not sufficient comfort in the substitution of courts administration councils for the magistrates' courts committees. As has been powerfully pointed out, they are no more than consultative. They will riot appoint the clerks. They will have no executive authority whatever. They will advise the new board, higher up in this administrative or bureaucratic change. So there is no answer to the point that has been made several times already—and alluded to by the noble Lord, Lord Borrie— drawing upon the statement on page 148 of the White Paper:The aim of the new agency"—the criminal justice board—will be to enable management decisions to be taken locally by community focused local management boards, but within a strong national framework"—and so on. I do not believe that that is a sufficient answer to the creation of the new board at local level; namely, the criminal justice board. It is certainly not a sufficient substitute for the power of the Bench itself to appoint its clerk.
It gets worse. The Bill empowers the Lord Chancellor, by order, to confer some judicial powers on justices' clerks—powers which could be exercised by a single justice sitting alone. It is true that they have marginal powers of that character at present. 'The Bill enables the Lord Chancellor to enlarge those powers. This has set alarm bells ringing among the lay magistracy—and I believe that they ought to ring in this House. I do not believe that it is at all safe that these extended powers should be available to servants of the executive.
As a consequence of the Bill, lay local decision-making input into the location of courts, the appointment of staff, the priorities of expenditure and accountability for performance will be removed altogether. It is pointed out in a statement placed in the 47 Library that there is to be a lay magistrate on the local criminal justice board. But, as has been stated from the Front Bench, that does not appear in the Bill. I do not know how the Lord Chancellor reckons that he will, through his staff, improve upon the present performance of the magistrates' courts' committees.
What went wrong between the point at which the part of the White Paper that I have cited was written and the formulation of the Bill? It is hard to think of a reason other than a rush of centralising blood to the head. There will be no community-focused local management board. The one that we have already will have had its throat cut. This approach to getting the criminal justice system "right at the start", to quote from the White Paper, seems to me rather erratic.
A tribute to the lay magistracy might not have come amiss in the Lord Chancellor's speech. There is time for such a tribute to come from the Front Bench opposite at the end of this debate.
It will be helpful to learn publicly what the reaction from the Magistrates' Association will be. It has a long history of constructive participation in the formulation of policies which are designed to modernise and make more efficient the administration and jurisdictions that it has historically performed. It is an historic office, but it is ever vigorous and ever important.
I noted that in the list of approving bodies read out by the Lord Chancellor, the Magistrates' Association did not feature; nor did the Justices' Clerks' Society—unless I missed any mention of them. It is true that the Association of Justices' Chief Executives featured in the list; but that is a very different kettle of fish, and not one that altogether inspires confidence in respect of the anxieties that I have expressed.
The magistrates represent a body of the judiciary which is unique to this country, or at least to a small part of the common law world. They need to be cherished. They provide a staunch check against abuse of executive power at local level. They also reinforce public confidence in the operation of the law at levels that are especially important to local communities. I put it no higher than to say that they may well need to have the continued provision of an exceptional jurisdiction and an exceptional mode of administration.
§ 5.19 p.m.
§ Lord Phillips of Sudbury
My Lords, further to a point made by the noble and learned Lord, Lord Mayhew of Twysden, one of the reasons why lay justices have a low profile in England and Wales is that we are becoming evermore metropolitanised and centralised in what we do and in how the nation is governed. Lay justices are the Cinderellas of the justice system. I applaud what the noble and learned Lord, Lord Mayhew, the noble Baroness, Lady Seccombe, and my noble friend Lord Goodhart said about the lay justices.
The noble Lord, Lord Borrie, said that he was a practitioner in stipendiary courts at the beginning of his legal career. I was a practitioner in lay justice courts 48 and sometimes sat as a temporary clerk to justices. I shall comment largely on the position of lay justices under this Bill in tribute to my late father, who died in May. He spent 50 years as an advocate in lay justice courts and more than 30 years as a part-time clerk. I was reared in the law in the shadow of that remarkable institution.
Given our deep concern about the malaise of democracy and participation in this country, with predictable results, we should recollect that lay justices are still deeply embedded in the culture and history of our country. Those 30,000 men and women, of all sorts and conditions, are at the heart of the justice system. Lay justices dispose of over 93 per cent of all criminal cases. The only direct experience that the majority of our fellow countrymen will have of the law will be a visit to a magistrates' court, whether as accused, applicant, witness, friend or professional.
Benches of magistrates were almost wholly self-governing until the Justices of the Peace Act 1949, pursuant to which they have functioned within magistrates' courts committees, which are established for each administrative county and certain non-county boroughs. In the past decade, the number of magistrates' courts committees has been reduced from more than 100 to 42. Alongside that, there has been a steady amalgamation of Benches and petty sessional divisions. Chief executives of MCCs, many without any legal experience or background, have been appointed under the 1999 Act. Meanwhile, the closure of local courts has continued apace. Last year, I instigated a debate in this House on that subject, which provoked an all-but-unanimous condemnation of the impact on local justice and local people of what is still happening. Around 400 magistrates' courts remain.
The Bill continues down the same one-eyed track that this Government and their predecessors pursued vis-a-vis court closures by enshrining the phrase "efficient and effective", as if those words comprised a clear and comprehensive statement of what is needed for local justice. That verbal formula is, no doubt, behind the Government's pretending to weigh the pros and cons of closures of tens, and indeed hundreds, of magistrates' courts without including in the costs-savings balance the expense to the public, the police, magistrates and advocates of getting to and from distant courthouses.
One of the amendments that I will table at the next stage will seek to import into Clause 1 the much broader set of yardsticks employed by the Lord Chancellor in his most recent departmental report; namely, to,enable criminal justice to be dispensed fairly, effectively and without undue delay, promoting confidence in the rule of law".I suspect that, if that is the keystone of this legislation, some of the unnecessary damage that will be done to the lay justice system and the magistrates' courts committees will be avoided.
Yet, the Access to Justice Act 1999 reforms have scarcely bedded down. As Sir Robin Auld said, they are still in transition. As is the fashion, the Bill will uproot them long before their success can be properly 49 assessed, thus throwing the system into further chaos and demoralisation. The Civil Service and politicians do not consider that factor enough.
Last week, a delegation of chairpersons of magistrates' Benches came to see me. They made it plain in the most powerful terms that they and their colleagues view the proposed changes to court organisation as likely, if not certain, to result in further resignations of some of their best JPs and the deterrence of some of their best potential recruits. They see the changes as likely to cause the further distancing of justice from those over whom it is exercised, and that they will lead to greater inefficiency and ineffectiveness of justice in their courts.
How often have we been promised radical improvements in administration and efficiency in affairs of state—health, education, transport, you name it—only to end up with increased lines of communication, loss of local input, demoralisation, additional bureaucracy and diluted citizen ownership. The last factor, to which the Lord Chief Justice referred earlier, is crucial.
As the Suffolk Magistrates' Court Committee said in its most recent report,the Committee is conscious of the effect that low esteem can have upon staff morale and, to a degree, the Auld review may also be less conducive to a "feel good" factor amongst staff. There are some signs that this is beginning to translate itself into a difficulty in retaining staff".I suggest that that is typical. In fact, over one-fifth of the committee's staff resigned last year, along with over 10 per cent of justices of the peace. Yet, I suspect, Suffolk is better than most.
Another example, only too well known by the outdoor staff of my London firm of solicitors, is the impact of the forced merger of the Westminster and Bloomsbury County Courts five years ago to form the Central London Court. That has led to a catastrophic drop in efficiency and effectiveness. As I was told, you never see the same staff twice, they all seem to be young and experienced, and, too often, the result is poor service.
My noble friend Lord Goodhart, the noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady Seccombe, spoke effectively about the impact of the proposals to abolish magistrates' courts committees and replace them by court administration councils—or "CACs", as they will undoubtedly be known, giving a new meaning to the expression "cack-handed". The problem is that Clause 4 leaves it entirely up to the Lord Chancellor to decide how many CACs there will be. One confident prediction is that there will be a mere 10, coinciding with regional administrations. What hope is there, then, for local justice?
Whereas magistrates' courts committees make decisions on where their courts will be, who shall be the chief executive, the appointment of justices' clerks and other staff, the terms of those appointments and where justices' clerks will sit, CACs will be responsible only for making recommendations in all those fields. They will have no decisive powers. I am informed that they were not called court management councils precisely because they will have no management powers.
50 Whereas magistrates' courts committees comprise 12 justices of the peace practising in the area concerned, a CAC will have only one justice of the peace. If we really want justices who know their patch, know what is needed, know what resources there are and how best to deploy them, with a sense of "owning" and running their own courts, and having responsibility for them, it will scarcely be achieved by replacing a committee comprised of 12 serving magistrates by a council comprising only one. It is not merely that the courts committees are comprised of serving magistrates; they are selected by a panel, to which representatives of every Bench in the area are elected. We have in place an extremely effective, democratic, accountable procedure to ensure that magistrates' courts committees are run effectively by those responsible for the courts. All that will go. The noble and learned Lord the Lord Chancellor said that the new proposals will keep the courts,in touch with the communities they serve".He also said that they will not be "a centralising measure", that they will be better responsive to local needs and that they represent "decentralised management". Either the noble and learned Lord is reading a different Bill or I have to say that I disagree with him totally and absolutely, and so do others of your Lordships.
Justices of the peace will in future not serve as part of distinct petty sessional divisions—which are to be abolished—and will be commissioned on a countrywide basis, but will serve in what are poetically to be known as "local justice areas", to one or more of which the Lord Chancellor will assign them. I am not sure where local Benches sit in this reorganisation. If the local Benches are to go, that will be a retrograde step of the first order, because the morale, cohesion and self-knowledge of Benches is a critical part of the effectiveness of lay justice. I am sure that I do not need to elaborate on the effects to local justice of all this. That has been made clear enough already.
Court service circular 199, emanating from the Lord Chancellor's Department, issued on 29th of last month, said:the national jurisdiction means that a summary offence can be treated in the same way as an indictable offence and will allow proceedings to be brought anywhere in England and Wales, rather than in the local justice area where the offence was committed. This will have the effect of reducing delay by allowing bulk processing of cases"—that is the key phrase—and will allow specialist courts within an area to hear certain types of cases".JPs, who are after all volunteers, will swiftly tire of a diet of, as the circular puts it, "bulk processing of cases". Many have told me so and it is pretty obvious. Unless good justices of the peace have a good cross-section of cases, including some of the most difficult in terms of law, fact and judgment, they will simply walk away, as many of them have already done because of workload, court closures and the like. Apart from t hat, centralising a certain type of case in a certain court 51 inevitably means even greater distances for all those involved to travel, with all the other consequences already touched on.
The Government were partly frustrated by this House in their comparable attempts to centralise control of county probation committees and county police authorities. This is an even more important battle to win for the sake of justice. If it is true, as I think it is, that this country is distinguished by a level of probity and respect for law and order among the vast majority of its citizens—despite the lamentable crime statistics that we hear so much of—those characteristics of Britain have a great deal to do with the role of justices of the peace at the heart of communities up and down the land since the 14th century. Although one can exaggerate and dramatise the impact of reorganisations such as that proposed, I strongly believe that for the magistrates' courts committees to be replaced by recommendatory councils would be an own goal and a self-destructive move of the first order.
§ 5.34 p.m.
§ Lord Donaldson of Lymington
My Lords, when I first received a print of the Bill, I started, as one would, with Clause 1. I was puzzled as to why it should set out this extensive duty on the Lord Chancellor. Could it be an aide memoire in case he had forgotten? Could it be a coded "Trespassers will be prosecuted" notice sent to the Home Secretary? I really did not know, but as I read further I came to the conclusion that it was an attempted justification for the enormous centralisation to which the Bill gives effect.
There is of course a widespread requirement for consultation, but if I were a Minister I do not think that a requirement to consult would blow me much off course. It would, of course, delay, but that is about all. The noble and learned Lord the Lord Chancellor may be different; he may be swayed by the results of consultation.
I looked to see whether anywhere the Bill says that anyone has to concur. In paragraph 281 of the Explanatory Notes I found a power in relation to Northern Ireland that requires the concurrence of the Lord Chief Justice of Northern Ireland. I then looked at the Bill. Unfortunately, it was a typographical error—it is, in fact, consultation again.
When I was in office, I was one of those who had to concur in the fees. Even in 1992, when I left, there were considerable anxieties among my brethren, which I shared, about the extent to which increases in fees would close access to justice. That has been highlighted recently in statements by one of my successors. I well understand the four heads of division saying that they no longer wish to accept responsibility for the fees being charged. But it would be difficult for them to oppose. The issue relates to the provision of the sinews or resources necessary to run the system.
I noticed with surprise the comment by the noble and learned Lord the Lord Chief Justice that, in working out the costs of accommodation, a notional 52 capital cost is now put on the Royal Courts of Justice in the Strand. I did not know anything about that. Of course, there are heavy maintenance costs as it is a listed building and a very extensive one. However, it seems odd to put a capital cost on it because, as many of your Lordships will know, it cost not a penny piece to build. The sensible course was taken of having a look at the enormous sums in the court funds that were never going to be claimed. It was then provided by statute that that money could be taken to build the courts, provided there was an indemnity that would provide payment for anybody who turned up to claim it. I commend to the noble and learned Lord the Lord Chancellor the thought that we might do that again. It is over 100 years since it was done. That might build a new commercial court.
Then there were the civil procedure rules. I was a member of that committee for a long time. Under the 1981 Act, the Lord Chancellor and at least four members of the committee had to concur. In other words, there was a right of veto on both sides. That was replaced under the Civil Procedure Act 1997 by a requirement for eight members of the committee to agree, giving the Lord Chancellor a veto—the right to approve or disapprove.
Clause 80 of this Bill allows the Lord Chancellor to "allow, disallow or alter" the rules. Paragraph 195 of the Explanatory Notes accurately comments on that, but it requires careful reading before anybody realises what the facts are. It says this is not a new power and goes on to talk about the county court rules. It is not a new power in relation to county court rules, but it certainly is a new power in relation to supreme court rules. So much for that.
I turn to appointments of staff. Justices' clerks are to be appointed under the provisions of subsection (1) of Clause 2. They are defined under Clause 22. As was pointed out, they are to be civil servants. They are to have powers to do anything that a single justice of the peace can do. Under Clause 24 they are to be independent in the sense that the Lord Chancellor's Department cannot require them to do anything in particular. I am reminded forcibly of the apocryphal story of the managing director who summoned the office boy and said, "Well, Brian, you really must comb your hair properly and have clean fingernails. I am not, of course, giving you an order, I am just making a suggestion. But I do hope that you will remember who is making the suggestion". I cannot help thinking that such a relationship might exist between some justices' clerks and the department.
Clause 30 gives justices' clerks an indemnity if they are sued. That is quite right, but subsection (5) of Clause 30 leaves it to the noble and learned Lord the Lord Chancellor to decide whether they should have an indemnity. I accept that there are rules and approaches which no doubt would fetter his discretion but I consider that provision rather unfortunate.
The provision of fines officers is a welcome development. Any system of fines where recovery is problematical is bound to lack all credibility. It is the experience of all citizens advice bureaux that large 53 sections of the population are quite incapable of managing their financial affairs. That can lead to those who are fined getting into genuine difficulties. They need help to get them out of those difficulties rather than a penal sanction. There are, of course, a few who just will not pay. I accept that sanctions must be imposed on those people, but I have slight doubts about paragraph 9 of the second schedule which provides that there shall be an uplift. The noble and learned Lord the Lord Chancellor says that it would be imposed by the court. That may be the case, but paragraph 9 reads differently. Paragraph 9(2) states:An increase is imposed on the fine which is the subject of the order".Paragraph 9(3) states:The amount of the increase is to be determined in accordance with fines collection regulations but must not be greater than 50%of the fine".Paragraph 9(4)—the key provision—states:The increase is given effect by treating it as part of the fine imposed on P on his conviction".So it is a deeming clause. Is that really a provision that either represents what the noble and learned Lord the Lord Chancellor said or that would pass scrutiny under the Human Rights Act? For my part I have doubts.
I wish to say a few words about administrative councils. I can quite understand why they are being introduced, albeit I do not altogether approve of the form in which they are being introduced. But they involve the abolition of the magistrates' courts committees. I agree with the noble Lord, Lord Phillips, that the magistrates' courts committees serve a very important localising function. But if they are to go, instead of having just one lay justice on the new body, could we not have several? Even more importantly, ought they not to be nominated or elected by the magistrates and not appointed from on high? I also note—I am not sure how this works—that under Clause 5 the councils' recommendations are limited to matters specifically relevant to their own area. But there may be matters which relate across the board and which affect them. I certainly hope that they will be able to make recommendations on those matters.
The supplementary list should never be abolished. Many people up and down the country have given years of voluntary service. It is right that that should be recognised by their being allowed to put the letters "JP" after their name even if they have passed the point at which they are able actively to adjudicate. That may be due to age or merely due to the fact that they have adjudicated for a quarter of a century and they consider enough is enough.
I turn to damages. I wholeheartedly welcome the provision with regard to structured settlements. My only qualification is that it would be a good idea if the media were taught that a structured settlement does not necessarily involve the millions of pounds that they usually attribute to such settlements. In most cases the amount involved is much less. Only in a worst case scenario, as it were, would the costs run to the sort of figures that the media mention. That causes litigants to think in terms of unrealistic figures for settlements.
54 I return for a moment to fines officers. The noble and learned Lord the Lord Chancellor mentioned clamping and appeared to regard the registration of a keeper as having something to do with ownership. It has nothing whatever to do with ownership. I am bound to say that if I was threatened with a fine, or even if I received a summons from a magistrates' court, I would give careful consideration to who ought to be the keeper of my motor vehicle. I am reminded again of an apocryphal story concerning King George V who asked one of his Ministers what was the state of the economy, to which the answer was, "Well, your Majesty, if I were you, I would put the colonies in the wife's name". I should have thought that that would certainly be the reaction of anyone whose vehicle was threatened with being clamped.
Subsection (1) of Clause 58 concerns nomenclature in the Court of Appeal. The justification for the proposed changes is said to be that the term "Lord Justice" is gender indicative. I do not agree for one moment. A large number of offices contain the word "Lord" none of which, so far as I know, has ever been treated as gender indicative. There is, for starters, the First Lord of the Treasury. The noble Baroness, Lady Thatcher, occupied that office for a long time. I do not believe that she ever considered that her femininity was called into question. There is—this is perhaps closer to home—the Lord President of the Council. There are perhaps—if not, there will be—female Lords Lieutenant. There are Lord Mayors, for example, the Lord Mayor of Westminster and the Lord Mayer of the City of London. Both those offices have been occupied by women who have been called Lord Mayor. There must be many other examples.
I was so puzzled by that provision that I had a look at my own patent. I did not want to bring it to the House as it has a heavy seal, I took a photocopy. Apart from referring to me as,Our trusty and well belovedwhich I appreciate, it continues,Sir John Francis Donaldson Knight, one of the justices of our High Court of Justice".The style relates to the office. The document continues, having said "do give and grant",the Office of one of our Lords Justices of Appeal".It is an office. It has nothing to do with what one calls oneself. Section 4 of the 1991 Act says that the puisne judges of the High Court should be styled "justices of the High Court".
We all know that, long even before there were women judges of the High Court, judges were universally called Mr Justice so-and-so. It was quite logical that when women High Court justices were appointed they should call themselves Mrs Justice. I say "logical", but of course none of the Mr Justices was a Mister, because they were all Knights, and none of the Mrs Justices was a Mrs because they were all Dames. Subject to that, however, it was perfectly logical and it did not require any statutory approval.
If there is a sensitivity, as there is, although I believe it to be misguided, among the lady members of the Court of Appeal about the title of "Lord Justice". the 55 obvious answer is to modify the Bill to provide that the word "Lord" shall be removed from the style or description of the office. If the office were known as "Justice of Appeal", the present incumbents would be free to do what their puisne brethren and sisterhood have done, which is to put some indication on the front of their title as to which gender they subscribe. In that way, life will be able to go on as it is at the moment.
My Lords, I am interested in the remarks of the noble and learned Lord, Lord Donaldson. However, I do not believe that he can do anything to prevent the Bar from referring to High Court judges, Lords of Appeal and others in those high judicial positions as "my Lord".
§ Lord Donaldson of Lymington
My Lords, there is no reason why the Bar should do that. In this House, when I rise to my feet I say "my Lords", and I hope that none of the lady Members present is in any way offended. It is an accepted collective term. I criticise my erstwhile brethren for having got their underwear in a twist on this question, so much so that, as one legal periodical reports, one member of the court volunteered to be a male judge for a day to make matters easier. The answer is that the court as a whole should be addressed as "my Lords", and individual members as "my Lady" or "my Lord" as the case may be. That would not be a problem.
I have even greater difficulties with Clause 59, which allows the noble and learned Lord the Lord Chancellor to run through the whole gamut of judicial offices to give effect to a policy of political correctness. I was delighted to see that he did not contemplate turning the office of Master of the Rolls into Mistress of the Rolls. I hope that he would not even consider making that an alternative, so that it could be Master or Mistress as the case might be. I remind him that, although his office is slightly older than my erstwhile office, the first Master of the Rolls saw the light of day in 1297. The title should not be altered today.
Finally, I very much regret that the Bill will be in Committee when I am briefly out of the country and trying to warm up. I shall not be able to take part in it, but I hope that one or two of my remarks will ring a bell with some of your Lordships. I shall certainly be back for the Report stage.
§ 5.54 p.m.
§ The Lord Bishop of Guildford
My Lords, the Bill is about justice, and the judgment to be made upon it will be whether it strengthens the confidence of our people in the delivery of justice in our country.
As noble Lords have said, there are serious inconsistencies. It cannot be right that a person living in Cambridgeshire is more than twice as likely to avoid paying a fine as someone from West Yorkshire. Surely, if the courts in Yorkshire can get the money in, it must be possible to get it in anywhere in our country.
In the early 1990s, I served as a member of the South Yorkshire Probation Committee. I remember our discussion of and response to the Criminal Justice Act 56 1991. Do noble Lords remember those heady days when there were only 45,000 people in our prisons? The noble and learned Lord the Lord Chancellor has reminded us today that the crime figures are down, but the prison population has risen to 72,000. That ought to be the headline.
The 1991 Act made us think about the philosophy and practice of justice with a view to reducing our prison populations. There are four prisons in the diocese of Guildford, two of which have recently been converted into women's prisons. Many lay people go into those prisons to work with families and children, in parenting courses and other educational activities. They come out feeling bewildered as to why so many people are in those institutions. We must tackle that matter.
The 1991 Act was part of a coherent strategy to reduce the prison population. It caught our imagination at the time, although there were serious problems about the way in which it applied fines. It is good to see this Bill addressing the vacuum that followed its demise.
For there to be justice, two things have to happen. First, sentences must be enforced. The public needs to be able to feel confident that, when a court imposes a fine, it will be collected. Justice collapses if the message gets round that people can joyride in a car, destroy it, appear in court and be sentenced to a fine but never pay a penny of it. The outcome is that some of the most disadvantaged communities in our country suffer a loss of justice; the poor and vulnerable communities suffer as a consequence of our failure to administer justice. The provisions of the Bill offer some remedy to those experiences.
I am interested by the Bill's proposal to pilot some ways in which to collect fines. Speaking from these Benches, I have to say that money can corrupt even systems for collection of fines. I shall be interested to hear how we will set up simple, transparent and fair systems after the experience of the Child Support Agency, which was excellent in principle, wonderfully founded in aim and absolutely fell apart in the forest of bureaucratic practice.
The overriding experience that fines will be collected will increase confidence in fines and reduce pressures in our prisons. There must be a multitude of ways in which that can be enforced, and no doubt we shall assist the Lord Chancellor in working on the detail of the Bill as it goes through its stages.
The second principle is to have consistency in practice. The noble and learned Lord, Lord Mayhew, has pointed out that the God-fearing and law-abiding citizens of Surrey wait only seven days to appear in court while the wicked of Bedfordshire have to wait 86 days. That is not good news for the administration of justice. Although it is not easy, we must balance the desire for local diversity with a need for consistency in the administration of justice. Those who appear in our courts have an overriding right to justice to the highest levels applicable.
57 'The proposals encourage us to think towards greater coherence and flexibility. Other parts of the world, such as New Zealand and Australia, have succeeded in many measures and kept their prison populations down to a minimum.
The shadow of Dickens' father being flung into Marshalsea prison for non-payment of debt and fines has haunted English justice for far too long. It is time to rehabilitate fines so that fewer people are sent to prison; that is what the 1991 Act tried to do. I welcome the Bill and hope that the House will give it the support that it deserves.
§ 6 p.m.
§ Lord Lea of Crondall
My Lords, this is a first-class Bill and I very much welcome its broad thrust. It is, dare I say, a Bill for modernisation; that word has a certain ring about it these days. However, I want to touch on a few aspects that bear on the effective management of the new system. Obviously, effective management is vital for the new system because it is stated to be one of the major parts of its rationale.
As the Lord Chief Justice pointed out in his role as shop steward for the judiciary, issues are raised about co-ordination in the system and the lack of resources and satisfactory financial arrangements in relation to, for example, accommodation. I trust that they will be referred to more authoritatively later.
The Bill represents a major change, although that may not appear on the face of it to be the case. One advantage is that it will avoid the amount of poaching that currently occurs between one or other of the 42 magistrates' courts committee areas. Someone in one of those areas, not having a framework system, may think that they would like to have a clerk from another area in their system. That is one of the downsides of the much-vaunted principle of decentralisation.
It would be counter-productive if both opposition parties, as they have hinted, sought the rather paradoxical result of duplicating the new structure and the new agency by arguing that local management committees should also have responsibilities which, if it means anything, means in relation to the employment of staff. That would surely increase confusion rather than provide the clarity which is the main thrust of the Bill. However, there is local accountability where it matters to the citizen. That distinction has not been brought out; quite the opposite. I shall be corrected if I am wrong but there is currently no real system of accountability for MCCs, certainly not in an explicit sense, as is proposed—this is the new proposal—in relation to CACs.
The question of the collection of fines has been touched on by almost every noble Lord. That may have been highlighted as a problem by discussion in the press. The conclusion that one should reach is perhaps the opposite to that reached by many noble Lords. In effect, noble Lords have been saying—I do not know whether they were clear that this is what they were saying—that the more we "contract out" the collection of fines, by some miraculous wave of a magic wand a greater proportion of fines will be 58 collected. There has been a trend towards w hat I should call more contracting out of the collection of fines. But it has not had that result. Bailiffs often go in for cherry-picking and establish which fine is the most economical to collect. I may be echoing the point made by the right reverend Prelate the Bishop of Guildford. I put it in my own terms: that adds up to the least cost to, or profit maximisation for, those who do the collecting. I do not believe that we are going down that road. I do no more than mention the important point about citizens advice bureaux made by the noble and learned Lord, Lord Donaldson.
It is hard for most of us to follow the Bill on the question of contracting out. I point out where the Bill alludes to it. I am told that the coded language in Clause 2(4) allows for more contracting out. If I have got that right, staff will ask whether that repeals the provisions of the Act—I believe, the 1971 Act—that explicitly provides that any proposal to contract out (I stress that we are talking about the justice system, which is, all people agree, innately a public good and a public service) must first be examined by the four senior judges and both Houses of Parliament. Are we repealing those provisions? Perhaps I can seek an assurance from my noble friend that that is not the case. I hope that I am wrong in this regard.
Finally, I turn to the protection of employees' rights in the transfer of employment. As I understand it, the 10,000 employees of magistrates' courts will in effect be merged with the 11,000 relevant employees of the Lord Chancellor's Department in the new structure or agency—whatever we call it. On the face of it, the Transfer of Undertakings (Protection of Employment) Regulations 1981 apply and, for the purpose of Schedule 1, the employing magistrates' court committee or local authority will be treated as a transferor and the Lord Chancellor will then he treated as the transferee. That is my understanding. I should be grateful if my noble friend will con firm whether that is correct.
Paragraph 9(1) in Schedule 1 states:The Lord Chancellor may make a scheme".I am rather puzzled by that language because it suggests that the Lord Chancellor may not make a scheme. Does that leave open the interpretation that TUPE need not apply? I cannot understand how legally that could be the case. If that is not the intention, perhaps that ambiguity needs to be removed at a later stage.
§ 6.8 p.m.
§ Lord Dixon-Smith
My Lords, I had not expected to have to speak in this debate because, in the summer, my contacts on the Central Council of Magistrates' Courts Committees were satisfied with the phrase that appeared in the White Paper in July and which has already been quoted. The phrase is:The aim of the new agency will be to enable management decisions to be taken locally by community focused local management boards".It would be interesting to know what happened between the printing and publication of that statement and the printing and publication of the Bill
59 I listened with great interest to the speech of the noble and learned Lord the Lord Chancellor. I hope that he will forgive me, and be unsurprised, if I do not view the Bill through quite the same utopian spectacles.
The Lord Chancellor said, among other things, that the new structure facilitates rather than hinders progress; but I find it inconceivable that he should bring forward a Bill that would do anything else. I interpreted his comment as meaning not only that the Bill is good—one would expect the Government to produce something better; I should expect him to make that argument—but that the existing structure hinders progress. If that is so, the comment seems at the very least to demean the immense work done by many voluntary magistrates across the country who do not have the opportunity to bring before Parliament a Bill to get things done. They have to work with restrictive budgets and difficult local authorities and proceed by agreement. They are in a much more difficult situation.
The Lord Chancellor says that the new executive agency will not be a "take-over" but build on strength and decentralised management. That is all very fine. However, what was the original concept of executive agencies? In his 1988 report, Sir Robin Ibbs suggested that the agencies' focus could be "downward and outwards". The report said that,an agency was defined as a discrete area of work with a single named individual—a chief executive—in charge, with personal responsibility to the Minister for the day to day management",and that the,principle was to he that agencies must be left as free as possible to manage within this framework".The team responsible for the July 2002 review entitled Better Government Services found that,some agencies have become disconnected from their departments",which brought us back to centralised working.
The noble and learned Lord the Lord Chancellor said that the new proposals would widen the input from the local community. Indeed, the noble Lord, Lord Lea of Crondall, said that magistrates' courts committees are not accountable to anyone. However, for the 14 or 15 years in which I served on Essex County Council, the magistrates' courts had to report their budget to me. I had to take that budget to pieces and put it together again. If I had not done so, I would have had subsequently to take it before a county council of 98 members who owned and accounted for every penny of that budget. The county council's budget was made up of so many boxes of matches, so that the public ownership by the community was direct and immediate.
§ Lord Lea of Crondall
My Lords, I thank the noble Lord for giving way. The new body's committee dealing with accountability will have two representatives of the local community and an additional representative and so on. I am sure that the noble Lord has read the passage dealing with those 60 arrangements; I can cite it if necessary. Does he agree that there is no parallel for that representative structure in the current arrangements in councils?
§ Lord Dixon-Smith
My Lords, the noble Lord is perfectly correct. To me, however, accountability has always gone with the control of money. The control of money in the local administrative boards will be non-existent; at best, they are consultative and can make recommendations. The control of money will come from the centre. However devolved downwards the administration may be, those who know the source of funding will look to the hand that feeds them for direction on what they should do. That is one of the great realities of life.
One thing I have learned in long experience as a farmer is that there is not much point in tilling the same soil too many times as the soil will only become unproductive. The "soil" in relation to magistrates has already been well tilled today by many noble Lords, including my noble friend Lady Seccombe, my noble and learned friend Lord Mayhew of Twysden, the noble Lord Phillips of Sudbury, and others. I shall therefore not continue except to make one observation. We are perhaps fortunate that 1984 is behind us. Nevertheless, the juggernaut postulated for 1984 seems to be growing ever closer.
§ 6.16 p.m.
§ Lord Hooson
My Lords, I entirely agree that the courts' administrative provision and arrangements—from the High Court to the magistrates' courts—should come under one umbrella, but only if adequate provision is made for the extremely important local dimension in relation to magistrates' courts. Crown Courts, county courts and so on. In all the briefing papers I received on this matter, the one point that really registered was in a parliamentary briefing paper from the Central Council of Magistrates' Courts Committees. One of its five criticisms of the Bill was that the proposal would make it easier for the Lord Chancellor to close courts irrespective of the needs of local justice and the concerns of the local community. That is the issue that I shall address.
I live in a very sparsely populated part of the country, in mid-Wales, where we are in the process of having to close almost all the courts regardless of whether they provide for the High Court, the Crown Court or the magistrates' court. Frequently, all courts share the same facilities because there has been no investment in them for many years. Although the Lord Chancellor is in the Chamber, the shadow of another Chancellor—the Chancellor of the Exchequer—hangs over this debate.
The Lord Chancellor is taking great powers in the Bill. I should like briefly to explore how those powers will be exercised and interpreted in relation to my own area. The precursor of an executive agency already exists in the Lord Chancellor's Department, and that agency has already intervened quite considerably in my own area. I seek the Lord Chancellor's guidance and explanation of how the powers will be interpreted and how they are intended to be used.
61 I am holding a document entitled Gwent and Dyfed Powys Courts Scheme, published in October 2002. It is subtitled, "Executive Summary Outline Business Case for a Public Private Partnership", and covers courts in Gwent, in south-east Wales; in Powys, my own area in central Wales, and in Dyfed in south-west Wales. The scheme was undoubtedly put together under pressure from the Lord Chancellor's Department. I have been consulting on it. Under the heading "The Outline Business Case—Key Facts", the scheme states:There is no capital money available within the required time frame. The funding route that has been identified for this project is PPP. The PPP Outline Business Case demonstrates real Value for Money based on a 25 year contract".It continues:The PPP solution can be delivered by 2006. For the first time in England and Wales there will be a purpose built single Courts estate".I quote that because in the scheme's financial provisions—for which the Lord Chancellor's Department has been pressing—there is mention of a contribution from the Welsh Assembly government funding, through the Revenue Support Grant, of £6.3 million. That is not part of the devolution arrangements. Has the Lord Chancellor had discussions with the Welsh Assembly on that matter? Is it being asked to contribute money to a scheme for providing courts?
Later on, under the heading "The Regional Dimension", the paper states:The exact method of funding from LCD still has to be finalised including the arrangements and involvement of the Welsh Assembly Government. The Assembly need to be part of the decision making process".I know that the Lord Chancellor has not had notice that I was going to raise this point, but that illustrates the fact that in my area—I just deal with Powys—all the courts will have to be closed. They do not satisfy modern requirements. Therefore, new provision must he made. We are a rural, but not rich, area. How will that be funded? We are pressed by the Lord Chancellor's Department to go down the PPP course. That is how this document has come into being. What happened is that Gwent—which is a very different and much more populous area—had already, again in consultation with the Lord Chancellor's Department, instructed project managers, legal, financial and technical advisers to provide such a scheme. Then Powys and Dyfed, which are linked for magisterial purposes, piggy-backed on to the Gwent scheme at the suggest ion of the Lord Chancellor's Department.
Therefore, we have this courts scheme document. It gives an indication of how the Lord Chancellor's Department is likely to act if the general thrust of the Bill is passed. I said that the Chancellor of the Exchequer's shadow is over the Bill. Is he insisting that there should be private partnership arrangements? The failure of the Lord Chancellor's Department in that event is the failure of the Lord Chancellor to persuade his colleague, the Chancellor of the Exchequer, to provide the money that is so badly needed to provide us with decent courts in country areas such as my own.
62 My fear is—and it is a fear expressed by many people in my part of the world—that we shall have to close the courts and that no proper provision will be made, because I cannot see that a private partnership will be enticed into this scheme. This paper is the preparation for it, but the money has not been provided. Is this scheme an indication of the kind of situation that will arise unless suitable safeguards are made during the passage of the Bill through the House? I am really asking the Lord Chancellor to explain his view and his interpretation of the Bill. Was there discussion with the Welsh Assembly—and with the Secretary of State for Wales, for example—before the Bill was introduced? How does he intend to interpret his powers under the Bill?
§ 6.25 p.m.
§ Lord Ackner
My Lords, I appreciate that flattery will get me nowhere, in particular with this Lord Chancellor. But I should like to express my gratitude for the great deal of preparatory work done in providing the explanatory material, which I found very time-consuming, but, on the other hand, very helpful.
At the outset perhaps I may indicate my support for the reform of the courts system with the goal of creating a more unified structure able to serve court users and the public. That is also the view of the Bar Council, to which I am indebted for some of the material that I shall place before your Lordships.
I have heard in the past that the Lord Chancellor's Department manages to maintain its stranglehold on the administration of justice by providing the Lord Chancellor with such an excess of work that it can tie him down on matters that may be of some importance while it gets on, behind his back, with achieving whatever it has in mind. That was perhaps particularly indicated by the position of the noble and learned Lord, Lord Hailsham, who was totally unaware that behind his back an enormous amount of work was going on preparatory to the product ion of the Green Papers of the noble and learned Lord, Lord Mackay of Clashfern.
The noble and learned Lord the Lord Chancellor is of course a workaholic. It would be difficult to tie him down in particular. The same no doubt applies to his shadow, for whom I have particular affection. But, on the other hand, neither is immortal and politics being what it is they will have successors in the near future, or further in the future. Therefore, I am concerned at the extent to which matters are left entirely to the discretion of the Lord Chancellor, which in many ways means the Lord Chancellor's Department, for which I do not have quite the respect that perhaps I should have.
I shall refer to one or two clauses, but will try to avoid repetition. As to Clauses 4 and 5, we believe that it is a good idea to have area court administration councils, providing they have power to act. They should be required to publish annual reports, or the Lord Chancellor should publish them along with his own, as provided for in Clause 1(4).
63 Clause 4(5) speaks of guidance to the councils from the Lord Chancellor about the way the councils "discharge their functions". Where are those functions defined? Clause 4(5) would suggest that that is all to be set out in a statutory instrument. That is objectionable. Why not define those functions on the face of the Bill? They are certainly germane to the Bill.
With regard to justices of the peace, a great deal has been said in critical observations. I shall not repeat them, but I substantially agree with them. In relation to Clause 8, which concerns local justice areas, I suggest that the areas under Clause 8(2) be defined now. Clause 8(4) allows the Lord Chancellor to do as he pleases at a later stage.
Clause 23, which deals with functions, is objectionable in one respect. Why cannot the Lord Chancellor define on the face of the Bill what functions currently done by JPs he wants to be done by clerks in the future? This provision, as it now stands, would allow for civil-servant-driven justice and is undesirable.
Clause 25 deals with places, dates and times of sittings. I wish to ensure that under Clause 25(1) the courts are locally accessible by all communities in England and Wales. The Bill should provide for that as a statutory objective.
Clause 29 concerns costs in legal proceedings. I would query whether it is right that a person who brings successful proceedings against a JP for acting outside his jurisdiction cannot recover his costs. Clause 29(4) allows the court to order the Lord Chancellor to pay. That is appropriate, but Clause 29(5) allows the Lord Chancellor to define when he will or will not pay costs. That suggests that he is acting as a judge in his own cause. That measure should be removed from the Bill and substituted by something more equitable.
Clause 31 deals with fines officers. It gives the Lord Chancellor the power to activate Schedule 2 and, indeed, to modify it. In Schedule 2 a civil servant—that is, the fines officer—may increase or decrease the fine. In paragraph 17 there is a power but not a duty to refer collection orders to the magistrates' court. Is the Lord Chancellor prepared to give an assurance that the "magistrates' court" referred to in paragraph 16(2) will not be only a magistrate's clerk? In paragraph 23, which does not properly define a "magistrates' court" as one presided over by JPs or a district judge, it could mean a justice's clerk. Clause 32(2) bears that out.
The next matter to which I want to refer is Clause 69, which provides for the Lord Chancellor, a government Minister, to involve himself in substantive law where the state will always be a party. Does that not run the risk of coming into conflict with the European Convention on Human Rights?
Clause 73 deals with family procedure rules and practice directions. It gives the Lord Chancellor power to rewrite Clause 72(2), which concerns who sits on the family procedure rule committee, and, indeed, the rest 64 of Clause 72, without coming back to Parliament. It provides the Lord Chancellor with a blank cheque and is clearly undesirable.
In Clause 79, which concerns the civil procedure rules, the same change is proposed as in Clause 73, and that should be opposed. The Lord Chancellor cannot be given the power to act as he pleases. The rules have a major impact upon the practice and cost of litigation. It is thought that those who decide what the rules are should be defined in primary legislation.
I turn to Clause 87, which deals with the subject of fees. This is what we have often referred to as making provision for the cream for the office cat to be paid for by the unfortunate litigant. It is obviously having a thoroughly undesirable effect on litigation. The amount of litigation in county courts is decreasing and that is due not only to the very wise provisions made by my noble and learned friend Lord Woolf but also to the prohibitive cost of proceedings. There is an absence of proper financing by the Government, and the result is a degree of incompetence that, in some quarters, is quite frightening.
Reference has been made to the Central London County Court. One cannot make contact with that court by telephone—it is impossible, and I speak with first-hand knowledge. I found myself a defendant in that court. I counter-claimed, which I am happy to tell your Lordships had a satisfactory conclusion. But I had to go physically to the central court to get the case transferred to Wandsworth in order to make contact with a court in circumstances that enabled the litigation to go forward.
The quality of clerks is going down because the job is not satisfying. That quality is being maintained in the country because of country connections and because many clerks in the country enjoy that job in their area. But the same is not happening in London. In many ways, the county court system there is grinding to a very unattractive conclusion. I ask your Lordships to join in emphasising that it is vitally important that any new legislation is properly funded. If it is not, then we are better off without the law being changed.
§ 6.38 p.m.
§ Viscount Tenby
My Lords, I begin by broadly welcoming the reformist zeal of this Government in seeking to implement Sir Robin Auld's invaluable report. Of course, one would not wish to imply blanket support for all the proposals. I believe that some of the more controversial ones now beginning their journey through the less perilous waters of the other place are guaranteed a rougher ride here. But the Government's desire to think the unthinkable, open the windows of the legal establishment and let in a little fresh air are to be welcomed.
In broad terms, this Bill deserves the House's support. I suspect that some of the anxieties which have been, and will be, aired today can be ironed out during its passage. I detect—I hope not too naively—a genuine desire on the part of the Government to get it right in their restructuring of the lower courts and in bringing together the court system under one roof.
65 I propose to talk about only three areas this evening: one of major importance; one in the middle order of concern; and one peripheral. Perhaps I may be permitted, in the time-honoured practice pioneered by the Miss World competition, to deal with the last item first; namely, the proposal to do away with the Supplemental List. Though not earth-shattering in its implication, like the noble Baroness, Lady Seccombe, and my noble and learned friend Lord Donaldson, I am sad about this, and declare an interest as a current member of the said list.
The attraction, as it were, of having to provide one's vicar with a moral reference, to sign, say, the application of a General for a shotgun certificate or to authorise the issuing of a passport to one of the better known peripatetic foreign correspondents seems to me to he a relatively harmless diversion within the scheme of things, though no doubt anathema to the tidy minds of Whitehall, despite the fact that it costs nothing. Those of us with little to do except make nuisances of ourselves one way or another in this place will mourn the passing of one of life's little pleasures.
Next, I turn to the proposals relating to the measures aimed at improving the present abysmal rate of fines collection. The recent report of the Public Accounts Committee in another places makes sombre reading: upwards of 40 per cent of fines not collected; recipients of those awarded compensation still not in receipt of the money years after the offence; and a lack of joined-up co-operation between the various agencies years after this particular problem had been identified. Only time prevents me from carrying on this shameful list.
I therefore wholeheartedly welcome the establishment of fines officers, but I should like to tease out from the Minister, if she is able at this stage, the answer to some questions. What will be the status of such officers, and from whose ranks are they likely to be drawn? After all, despite the welcome assurance from t he noble and learned Lord the Lord Chancellor today, they will be exercising quasi-judicial powers in that they will be able to vary fine orders up or down, presumably issue an attachment of earnings order or, indeed, even a clamping order, as we have heard, in respect of an offender's vehicle. I add at this juncture how pleased I am to note that the full range of penalties will now be used against the recalcitrant offenders.
I remember when I was on the Bench that there was extreme reluctance to use the range of sequestration options on the perfectly understandable view, which has been echoed today from the Liberal Democrat Benches, that innocent parties—namely, members of the family—might suffer thereby. However, noble Lords might feel that it is about time that persistent offenders were forced to come face to face with the consequences of their actions even if they affect their nearest and dearest.
It is absolutely essential that we get right the collection of fines as the overwhelming number of disposals are by that method. As we have heard, some 75 per cent has been estimated. If non-compliance persists on a large scale two factors will result: first, the 66 law will be brought into disrepute and more and more offenders will accordingly try to evade payment; secondly—this is perhaps even more important—magistrates will inevitably be tempted to impose less appropriate sentences. I am not talking of community penalties, which we all support, but which are inevitably governed by the resources available at any given time, but the awarding of custodial sentences by magistrates when they are entitled to do so.
My second question is in general terms. How many fines officers is it envisaged will be appointed: one to each court, or will they he allotted to areas? Where will the extra resources come from to fund them?
Thirdly, although there is provision for a Bench to "take back" from a fines officer a case for re-sentencing, how would that work in practice? Is it realistic to think of it as anything other than a highly unusual exception to what is the norm?
Lastly, I come to the more sensitive but critical areas of local justice and the relationship between local justice areas and the to-be-appointed courts administration councils. As the noble Lord, Lord Phillips, has shot my bird, I shall not use the acronym. If I were to make a plea for maintaining the status quo in one respect, I think it would be with regard to the 42 geographical areas currently served by magistrates' courts committees. Those have been recast comparatively recently and there is evidence to show that the various agencies within them—the CPS, probation, police, local authorities and so on—are working together effectively. So, please, no change just for change's sake.
Pursuing that theme, what will happen, as a result of the Bill, to the justices' chief executives? The current system has been up and running for only a few years, and another upheaval among experienced staff may have really serious consequences from both an administrative and morale point of view. I know that there is much disquiet at the abolition of magistrates' courts committees and whether local input will be diminished as a result, but we shall just have to see how effective the consultation process, and particularly the so-called "red card" system, will be between the new councils and the local chief officers, particularly in relation to court closures, on the subject of which so many noble Lords—one particularly thinks of the noble Lord, Lord Phillips of Sudbury, in that context—are rightly concerned.
It is fatal to say this, but it may be that I am the only Member of this House who, as chairman, has presided over the amalgamation of two old and well-established courts: not a bundle of laughs, to put it mildly, but I think it is fair to say—subsequent experience bears this out—that the world did not come to an abrupt stop because of it.
We are all conscious of the fundamental importance of local justice, but I have to say that to take a stand now on court closures, however reprehensible some may be, brings to mind a stable door and a bolting horse, especially when one recalls that some 90 courts—I think it is 90—have closed in the past three 67 years. Indeed, in my own county of Hampshire, the number of courts have been reduced in the past 12 years by two-thirds.
What one can surely legitimately call for is an investigation into the hardship involved in defendants getting to court, where the distances involved are high and the public transport system inadequate. In that context one invariably thinks of Suffolk and even more so of Powys. I would beg that suitable resources be allocated to alleviate the worst examples.
Surely, the whole point about bringing all courts under one roof nationally would be to improve interagency co-operation dramatically and to use the estate—no one has mentioned this today—as fully as possible. Indeed, in one small area I would be tempted to go further. At present, only each way and indictable offences can be moved to a more appropriate court; one, perhaps, with better video links or facilities for the disabled. Why should not that elasticity and freedom be accorded to summary cases as well? I should be grateful if the Minister could indicate whether that would be sympathetically considered.
It seems to me that one of the fundamental weaknesses of the law at present—this is true of the lower courts as much as the others—is the confusion which has been allowed to build up in the minds of the public about who does what. I think that the Bill, with its unified national structure, will help to put that right. It is simply not good enough blindly hanging on to the past. Indeed, the noble and learned Lord the Lord Chancellor might even consider calling them justice boards instead of local justice boards, but perhaps that is a step too far. I do not think I shall try my luck on that.
There are those who see in all these and other proposals the demise of the lay magistracy. I do not agree. To begin with, in a way Auld has provided a firm framework for the continuation of the lay magistracy and a magistracy with an even bigger role to play. Successive Lord Chancellors have endorsed that view, none more so than the present noble and learned Lord the Lord Chancellor, who, if I may say so, is not given to going back on undertakings freely given on a number of occasions.
It is up to all of us to ensure that we have as efficient a system of justice as possible, and one that enjoys the confidence and understanding of the people it seeks to serve. I believe that the Bill, appropriately amended, will provide a suitable launching pad for this essential objective.
§ 6.49 p.m.
§ Lord Beaumont of Whitley
My Lords, I shall not detain your Lordships for long. I hope to better even my usual minimal standard of length of Second Reading speech. I do not intend, nor am I qualified, to make a Second Reading speech as such. I shall try to put down a marker of some areas where the Green Party is unhappy with the Bill and wants to try to amend it in Committee. Judging by the speeches we have heard, there will be plenty of opportunity for that.
68 We have two areas of particular concern. The first is the whole business of centralisation, to which we are opposed in general principle unless a real case can be made for it. The noble and learned Lord the Lord Chancellor told us that it is not a centralising Bill. But nothing that I have heard since has supported that. The speech made by the noble Lord, Lord Phillips of Sudbury, was an important piece of evidence in arguing the case that we should be careful before over-centralising.
The second area that I, and, I think, your Lordships House, will want to consider is Schedule 2 and the powers given to the enforcement officer. It is obvious from what has been said that the non-payment of fines and various other moneys decided on by the courts is a real and utter scandal that should not be tolerated in a civilised country. Some of the Bill's provisions will help. I was interested in the remarks made about the increasing use of distraint of property. However, we must be careful about the powers we give to enforcement officers to make judgments that are almost semi-judicial. There is much detailed work to be done on Schedule 2.
Meanwhile, I congratulate the Government on trying to pull together a disparate system into something that makes rather more sense, but that must not be done at the expense of either individual liberty or local responsibility. It is in local responsibility that the help or otherwise of the judicial system will best be seen.
§ 6.52 p.m.
§ Baroness Anelay of St Johns
My Lords, like my noble friend Lady Seccombe I begin by declaring my interests as a layman. I sat as a magistrate for 13 years before entering your Lordships' House. Indeed, I was grateful to receive from the noble and learned Lord the Lord Chancellor a polite letter explaining why, because I had not sat for 15 years, I therefore could not join the Supplemental List, to which my noble friend Lady Seccombe referred.
I have been married to a practising barrister for 30 years and I have been both the victim of crime and a witness in court. On other occasions I am also spokesman for these Benches on home affairs. All those experiences have taught me that the Bill is certainly necessary and important, and I welcome it. But it must not only improve the efficiency by which the courts work but do so in such a way that we do not lose the system's fairness to all involved.
I welcome the Bill, but I have concerns about its detail. That is where the real problems begin. As noble Lords have asked: where do we find the Bill's detail? So often it is missing. The measure relies heavily on order-making powers. Some important matters are simply not written into the Bill at all.
I find it intriguing that a government who so often wax lyrical about the importance of devolving government to the regions have introduced a Bill that so comprehensively centralises power in the hands of the noble and learned Lord the Lord Chancellor. We are told that a new courts agency will replace 69 magistrates' courts committees and the Court Service. Last week, as the noble and learned Lord said in his opening remarks, the Government published a statement about the principles that will form the basis of the agency's framework document. In that document they gave a commitment to publish both the framework document and the guidance to be issued to the court administration councils about how they should perform their role. That is just as it should be. But the question is: when will they be published? It is important that they are published in time to be fully considered by the House in Committee and beyond. The noble Baroness, Lady Scotland, nods her head. I hope t hat she can tell us when we shall receive those two documents.
My noble friend Lady Seccombe referred to the fact that magistrates' courts committees are to be abolished. Many noble Lords have taken up that theme, concerned about the Government's apparent U-turn in changing management councils into something that will be within the remit of the Lord Chancellor. I do not propose to go into detail. The issue has been covered admirably by other noble Lords. But it should not be assumed that I do not feel as strongly as they do on the matter.
I am also concerned about what appears to be the transfer of judicial functions to officials—or the potential for that to happen. The Government assure us that no such thing will occur. However, in two respects, the Bill allows for a transfer of judicial functions to officials. I refer to justices' clerks and fines. The noble and learned Lord, Lord Ackner, mentioned Clause 23(1), which appears to give the green light for the Lord Chancellor to transfer functions currently carried out by magistrates to justices' clerks. As the noble and learned Lord the Lord Chancellor has said that that is not the case, perhaps the noble Baroness can confirm that the Bill as drafted maintains the status quo with regard to the dividing line between the functions of the magistrate and of the justices' clerk and that no further transfer of functions will take place. I bear the scars of a previous fight over Section 40 of the Crime (Sentences) Act 1997.
I turn to fines. Again, other noble Lords have dealt with the matter in great detail, so I shall just mention one or two issues they did not raise. I endorse all of the concerns that have been expresssed. The noble and learned Lord the Lord Chancellor was reported as saying on BBC Online on the 29th of last month that,it is absolutely essential, for public confidence to remain in the tine, that it is not seen as a synonym for getting off".He is absolutely right; no noble Lord has said anything to contradict that. We want him to have every opportunity to achieve just the result that he wants through the Bill. The question is whether the Bill's measures fairly give effect to what we believe to be the right way to enforce fines.
The noble and learned Lord, Lord Donaldson of Lymington, referred to the drafting of Schedule 2. I am concerned that as drafted it appears to give fines officials the right to increase fines without reference back to the court. The noble and learned Lord the 70 Lord Chancellor was careful to tell us that that will not be the case. As I read the Bill, the right to decide appears to go to the fines official.
I remind your Lordships that when the noble and learned Lord the Lord Chancellor gave his press conference on the provisions, he was challenged by members of the fourth estate about whether the provisions would be in breach of the human rights convention, which requires punishments to be imposed by an independent and impartial tribunal after a fair and public hearing. Your Lordships will not be surprised to learn that the noble and learned Lord gave the sort of robust response for which he is somewhat famed. He is reported as saying:Instead of taking fancy points about the Human Rights Act, tell me what's wrong with these powers".We may try to give one or two of those answers in Committee; I look forward to trying to do so. I promise the noble and learned Lord that I shall not take fancy points; I am not a lawyer and cannot compete.
I turn to one or two issues that have not as yet been covered. In the same interview, the noble and learned Lord said:I have complete confidence that these"—the fines officials—will be officials who will exercise their powers responsibly ".I am grateful for his confidence. The difficulty is that, when noble Lords come to scrutinise the Bill, they will need to be sure that they are also confident. At the moment, we have no idea how the fines officials will operate. We need the framework, and we need the guidelines.
One noble Lord has already referred to the fact that Crown Court fines are not included in the system. However, I notice that the Public Accounts Committee, in its report, recommended that the enforcement of civil penalties should be combined with the system for enforcing criminal penalties. Did the Government consider that recommendation? What were their reasons for not taking the opportunity to implement those recommendations in the Bill, which does not, as I understand it, cover county court fines? Do the Government have plans to do that?
I was pleased to see the report of the speech given by the noble and learned Lord the Lord Chancellor to the magistrates' annual general meeting, to which the noble Viscount, Lord Tenby, referred. The noble and learned Lord stated that the White Paper,banishes the myth of a few years ago, when many press articles claimed the lay magistracy was an endangered species … nothing could be further from the truth and … the Government remain fully committed to our unique system of lay justice".The noble and learned Lord nods his head. I appreciate that, in such matters, he has a genuine commitment. Therefore, I hope that., when we come to the Committee stage and beyond, the noble and learned Lord will clear up some of the question marks over the drafting of the Bill, which could be used by a future Lord Chancellor, who did not have the same honourable commitment, to bypass or supersede the lay magistracy.
71 The matters to which I refer are in Clause 61, which proposes that High Court judges, circuit judges and recorders should be able to sit as magistrates when exercising their criminal, youth and family jurisdictions. The reasons given in paragraphs 179 and 180 of the Explanatory Notes are admirably practical. I agree with them. However, I have sat as a chairman of a family proceedings court. I have a little experience of its role. I am puzzled as to why the Government want to provide for High Court judges and other judges, including county court judges, to sit in a family proceedings court. I wonder whether it is so that county courts can take over disputes about maintenance payments when they are considering disputes about contact. It is puzzling. Overall, the provisions of Clause 61 could, in the hands of a future Lord Chancellor, provide an opportunity to transfer action and authority away from lay magistrates to the judiciary.
The Government must have decided already that the Bill is less than perfect. They have presented us with yet another objectionable catch-all clause. Clause 98 is entitled, "Minor and consequential amendments, repeals etc.". The Secretary of State can do just about anything he likes to amend other enactments and can do so by order subject only to negative resolution. That is not good enough. I was concerned about such matters when I tabled an amendment to the Nationality, Immigration and Asylum Act 2002. Initially, noble Lords on the Liberal Democrat Benches were not particularly concerned. However, having had the opportunity to consider the matter more carefully, they joined me in my deep concern. I welcome the remarks made today by the noble Lord, Lord Goodhart, on that issue.
I am grateful for the fact that the Select Committee on Delegated Powers and Regulatory Reform will shortly put to the House a report on its experience of the clauses. Last week, I tabled amendments to a similar clause of the Crime (International Co-operation) Bill. I give notice that I shall table amendments to Clause 98 of this Bill.
I look forward to the Committee stage when I hope we can ensure that the objectives and outcomes of the Bill are made plain and that necessary improvements will be made. There is no doubt that the court system is ripe for reform and improvement, but we must always remember that efficiency must never be sought at the expense of the most vulnerable in the justice system.
§ 7.4 p.m.
§ Lord Thomas of Gresford
My Lords, the major theme of the speech made by the noble and learned Lord the Lord Chancellor—incidentally, unlike the noble and learned Lord, Lord Donaldson of Lymington, I do not see why we should not have a Lady Chancellor, and soon, under the terms of Clause 59—was that modern, efficient courts should be provided and that they should be free from avoidable delay and more in touch with the communities that they serve. That is the benchmark by which the provisions are to be judged.
72 According to the Explanatory Notes, the provisions are cost neutral. On these Benches, we will need some persuading that that is so. We could take for an example the pension provisions. The Explanatory Notes tell us that 10,100 instant civil servants will be made, when the magistrates' courts staff are transferred to the Lord Chancellor's Department. Presumably, that means a transfer from the local government pension scheme to the Civil Service pension scheme. That happened in Greater London not so long ago. Some 800 magistrates' court staff transferred from one scheme to the other at a cost of £8 million. If 10,000 staff are to be transferred, the pensions alone will cost us about £80 million. When one considers that and the crying need for money in other areas of the justice system, one wonders where the priorities are.
The noble and learned Lord, Lord Woolf, referred to the cost of maintaining buildings, which has been thrust upon litigants. My noble friend Lord Hooson referred to the fact that a new magistrates' court cannot be opened in mid-Wales because the money is not available. In Chester Crown Court, which was recently refurbished at a cost of millions, the water comes through the roof of two of the five courts. In the Mold Crown Court, built in the 1970s, there are buckets in the foyer and in the corridors. The noble Viscount, Lord Tenby, talked about using the estate as much as possible. In Knutsford, it is impossible to use the major court because the roof is liable to fall in. One wonders where the priorities are, when other costs are hidden in the provisions.
Delay and efficiency were recurrent themes for the noble and learned Lord the Lord Chancellor. He did not refer—nor does the Bill—to what I and many others regard as the present scandal of delay caused by the failure of the privatised Prison Service to provide enough staff and vehicles to get prisoners to court on time. The problem has been studied in north Wales and Chester. In the past six months, in the three courts covered, there were 21 occasions on which the Prison Service completely failed to deliver the prisoner, never mind any delay. I was present recently when the court was told that the arrival of the prison van at eleven o'clock was due to a blockage on the motorway. The defendant said that he had been to Birkenhead magistrates' court, Birkenhead police station and Neston magistrates' court. The Crown Court was the last place of call. One of the judges in that area is keeping a file and demands an explanation for each delay. He has a thick file, which he hopes to present to the Lord Chancellor's Department, when the question of the renewal of those services comes up.
There is also the question of court provision. I was in Wolverhampton recently. There were 28 prisoners in custody and three interview rooms. For half an hour, I queued with other counsel and solicitors to see a client charged with homicide, because the rooms were not available. In Birmingham, there are nine interview rooms, but only five are manned by the Prison Service. I am told that, in the past fortnight, queues have formed at the Old Bailey. Now that the problem has got to London, it may get through to the 73 Lord Chancellor's Department that such things are the major cause of delay in the justice service. Every practitioner and every judge knows it. For that reason, I am somewhat dismayed that court services are likely to be privatised, in particular, court security, under Clause 2(4).
The Lord Chancellor's Department is in the grip of the insurance companies of those privatised services. One of the problems is that in order to see someone in an interview room in the enclosed cell area, that person must he handcuffed by a member of staff and brought to the cell. Recently, both prosecution and defence wanted to demonstrate to the jury an alleged stabbing in the enclosed cell area. The privatised Prison Service refused to allow that unless the defendant was not merely handcuffed, but shackled by the legs. Consequently, the demonstration was not held. Applications are made to judges day in, day out, for defendants to be handcuffed in the dock, and that is always refused. That is where the delay is happening at present. The Lord Chancellor's Department has no grip on it.
I follow the noble and learned Lord, Lord Ackner, in his consideration of the delay in civil cases. Perhaps I may make a short point. The crucial issue in civil cases is the listing. The most important person in the court is the listing officer who, in the provinces, is paid between £16,000 and £18,000 per year—significantly less than, for example, a fireman. Yet, the whole efficiency of the civil courts rests on that particular person. Delay in family matters can be crucial. It can make the difference between whether a person has custody or access to his children. Delay is hitting at the heart of the civil justice system and I do not know that the Bill does anything to tackle that.
The noble and learned Lord the Lord Chancellor also said that the purpose of the Bill is to decentralise management and bring about local accountability in a strong national framework. Perhaps we may consider the question of local accountability. At present, under magistrates' courts committees, the local magistrates and councillors have a contact with the community from which they spring. It is they who set the policy for the locality. The magistrates' courts committees are open to direct input from local authorities, interested bodies in the locality and individual people. They are concerned with the appointment of justices' clerks and their staff. They set the terms and conditions and directly supervise the way in which duties are carried out. That is what I would call "local accountability". They are also concerned, of course, with which courts stay open and which courts are closed. They are deeply concerned in decisions of that sort.
What of the court administration councils that are being set up? According to Clause 4(3) of the Bill the Lord Chancellor will appoint the members of the council. He will give them guidance on their functions which, as many noble Lords have said, are completely undefined and can be added to or removed as the Lord or Lady Chancellor of the day thinks fit. He will receive recommendations from the court administration councils to which he has to give due consideration.
74 Where is the local accountability there? We look further. We look for the principles in the document that has been produced and placed in the Library—again not part of the Bill and again reversible, as my noble friend Lord Goodhart said. It appears that the court administration councils have no voice in the appointment of chief officers. Indeed, the chief officers will not be implementing local policy; they will implement national policy. That is why they are there; they are part of the structure; the strong national framework.
The chief officers must seek agreement of the court administration councils. It does not say in the Bill that they must obtain the agreement of those councils, but just that they must seek it. If there is a difference, it is to be referred to the chief executive and, in important matters, to the Lord Chancellor. Therefore, we go all the way round in a circle. I ask your Lordships to consider where on that circle there is any local input whatever. Local accountability does not exist under the Bill.
Therefore, in whose hands are the provision of services for victims, witnesses, defendants, and those who use the courts to be placed? Are they to be placed in the hands of those who know something about local conditions or back in London in the Lord Chancellor's Department? I was most amused to hear my noble friend Lord Hooson refer to the Welsh Assembly. I am pleased to see that by a side wind we are to have increased devolution. I hope that that is conveyed to the appropriate commission which is sitting at the moment.
Using the benchmark of the noble and learned Lord the Lord Chancellor that the Bill sets up modern, efficient courts free from avoidable delay and which are more in touch with the communities from which they come, in my respectful submission to your Lordships, it fails on every count.
§ 7.16 p.m.
§ Lord Hunt of Wirral
My Lords, this has been a comprehensive and good natured debate. We have had 16 speeches of the highest quality about a Bill which has 101 clauses, seven schedules and 113 pages. Many of the speeches have raised important questions. I extend my warm support to the noble Baroness, Lady Scotland of Asthal, because I counted altogether 34 questions that she was invited to answer. Many of the points are ones which will be taken further in Committee. I do not believe that we are anticipating a full and comprehensive answer to each point.
First, perhaps I may say that although I am not in agreement with some of the statistics that the noble and learned Lord the Lord Chancellor used, I pay tribute to his work as a reforming and progressive Lord Chancellor. We have seen evidence of that in civil justice; we now see evidence of it in criminal justice.
As regards his statistics, the one overlaying the whole debate was that used by the right reverend Prelate the Bishop of Guildford—the fact that 72,000 people are in prison. There must be a better way than that to proceed. I know that "modernization" may not 75 be a word greeted warmly by the noble Lord, Lord Lea of Crondall. I believe that the way he said "modernisation" conveyed something. It is sad that Hansard does not contain any onomatopoeic references—
§ Lord Lea of Crondall
My Lords, I must say that what the noble Lord has just said is totally in his imagination.
§ Lord Hunt of Wirral
My Lords, I greatly regret that Hansard will not contain the way in which the noble Lord, Lord Lea of Crondall, pronounced the word. However, I feel that the noble Lord, Lord Thomas of Gresford, has put his finger on something important. It has been echoed throughout the debate; namely, the whole question of resources.
The noble Lord, Lord Hooson, and the noble and learned Lord, Lord Ackner, have referred to the shadow of the Chancellor of the Exchequer overhanging the debate. There is little point in having fundamental reform of criminal justice if there are not the resources to accompany that reform.
The noble and learned Lord, Lord Woolf, will know from his experience in reforming civil justice that there was a debate in 1999 in which both he and I participated. We stressed how important it was that the information technology improvements promised at that time should be forthcoming. I was sad to see the noble and learned Lord's successor as head of civil justice, the noble and learned Lord, Lord Phillips of Worth Matravers, the Master of the Rolls, giving a warning earlier this year that without a multi-million pound cash injection for new technology the reforms begun three years ago without IT back-up will not work. That is a very serious situation. It is a cause for concern that we are now embarked on a fundamental reform of civil justice again without the necessary resources being earmarked.
If only there was some way in which we could assist the noble and learned Lord the Lord Chancellor. When I held a number of posts in government, I recall that the successive Permanent Secretaries adjudicated on my efficiency as a Secretary of State on the basis of the extent to which I was able to obtain resources from the Treasury. I am sure that that must now be in the pages of history, but if it is still a fact, will the noble and learned Lord the Lord Chancellor accept from the House its solid support for his determination to ensure the necessary resources?
I have here the very creditable report of Lord Justice Auld. Sadly, it does not look as earmarked as it should be, but this is one I borrowed earlier; my earmarked copy is at home. It consists of 686 pages. Like the noble Lord, Lord Borrie, I pay tribute to what is now a reference work on criminal justice. As the noble Viscount, Lord Tenby, said, it is an immensely valuable document.
From the document we gather—it is a fact—that magistrates' courts deal with 95 per cent of all prosecuted crime and that lay magistrates handle 91 per cent of that work.
76 The noble and learned Lord the Lord Chancellor said that the criminal justice system is not working as well as it should. In all the speeches made in the debate there has been strong support of the need for reform. But before I go into the detail of some of the proposals, perhaps I may echo the words of the noble Lord, Lord Borrie, who said that the lay magistracy should be "cherished and not spurned", and my noble and learned friend Lord Mayhew of Twysden stressed its importance. In a particularly moving account, the noble Lord, Lord Phillips of Sudbury, paid tribute to his late father's service to the community. I pay tribute from these Benches to the marvellous work carried out by generations of lay magistrates. They have served our communities well, often at great expense and inconvenience to themselves— unpaid servants giving a lifetime of service. I join my noble friend Lord Dixon-Smith in paying tribute to them.
As against that inherently local service, as the noble and learned Lord, Lord Donaldson, pointed out, we are presented with an enormous degree of centralisation. Clause 1 states very clearly that the general duty on the Lord Chancellor is to produce an efficient and effective system. There are some concerns about that. The noble Lord, Lord Lea of Crondall, referred to the power given to the Lord Chancellor under Clause 2(4). I agree that it appears to be a very wide clause and I hope that the noble Baroness, Lady Scotland of Asthal, can give some reassurance as to the extent of that power.
My noble and learned friend Lord Mayhew of Twysden said that we were faced with something that is a little bit of a muddle with ample scope for rationalisation, but noble Lords on all sides of the House believe that in the Bill there is an unjustified emphasis on centralisation. The noble and learned Lord the Lord Chancellor started the debate by saying clearly and resoundingly that this is not a centralising measure. I hope that he will forgive us if we put that to the test in Committee. As my noble friend Lord Dixon-Smith inquired, what has happened between the Auld report, the Government's White Paper, Justice for All, and the Bill? Each of those documents represents a different stage in the journey. How have we ended up where we are today?
The noble Lord, Lord Beaumont of Whitley, expressed concern about centralisation and the noble Lord, Lord Goodhart, stressed on several occasions the importance of local responsibility. But we are now faced with the abolition of magistrates' courts committees and their replacement by court administration councils. The noble Lord, Lord Phillips of Sudbury, will be remembered for his phrase that it is a "cackhanded approach".
CACs—court administration councils—will have no executive authority. That is to lie with another agency which, as the noble Lord, Lord Goodhart, pointed out, is not mentioned in the Bill. As my noble friend Lady Anelay of St Johns said, may we please have the framework documents in order that we may adjudicate on exactly what the powers of this agency will be?
77 My noble and learned friend Lord Mayhew of Twysden said that we are turning magistrates' clerks into civil servants and he instanced the fact that, as civil servants, officials will be given financial targets against which their performance will be judged. That gives rise to all kinds of worries and concerns.
The noble Lord, Lord Phillips of Sudbury, referred to resignations and diluted citizen ownership. I hope that that will not continue. He instanced examples of it in the past.
As to the supplemental list, I join my noble friend Lady Seccombe in asking why abolish it? We have two distinguished members of the supplemental list in the House. My noble friend Lady Seccombe was too modest to mention that she joins the noble Viscount, Lord Tenby, as a member of the supplemental list, a roll of honour which they thoroughly deserve.
A number of noble Lords referred to the issue of court closures, which is a cause of considerable concern. Since 1997, 96 magistrates' courthouses have closed in England and Wales, whereas only 14 have opened. What effect that will have is an area of concern. The noble Lord, Lord Hooson, quite rightly referred to the situation in Powys with the PPP. I do not know to what extent the Welsh Assembly or the Secretary of State for Wales have been consulted. I hope that we shall hear more about that in a few moments time.
As to fines, there is general support for the proposals of the noble and learned Lord the Lord Chancellor. As the noble Lord, Lord Goodhart, said, it cannot be right that the recovery rate in urban areas is 34 per cent and in rural areas 89 per cent. Those are telling statistics on fines enforcement. The noble and learned Lord the Lord Chancellor said that we must address poor performance, and he has very strong support in that respect.
But giving fines officers powers to increase fines, as my noble friend Lady Seccombe said, is a cause for worry The noble and learned Lord the Lord Chancellor said that we should not worry, but the noble and learned Lord, Lord Donaldson, pointed out that there are considerable worries about the power in Schedule 2, Part 2, paragraph 9(4) at page 61 of the Bill. All these issues will have to be considered later.
As the right reverend Prelate pointed out, it is the poor and vulnerable members of society and the community who suffer from the inefficient administration of justice. I join with him in the tribute he paid to citizens advice bureaux; I am proud to be president of my local CAB. I was a little worried that the right reverend Prelate felt that Surrey was God-fearing whereas Bedford was not. Perhaps he should issue a personal statement on that. The noble Lord, Lord Lea, pointed out the dangers of the least cost option, with which I strongly agree.
The most powerful speech came from the noble and learned Lord, Lord Woolf. As a mere modest solicitor, perhaps I may pay tribute to him. His unique position in being able to address this Chamber on these issues is greatly to our advantage. We were very concerned to hear his comments on Clause 87, which he described in 78 various terms: he said that it was "totally misconceived" that full costs should have to be recovered; he referred to the "grave danger" of Access to Justice gains being lost; he described the accommodation of the commercial court as "a disgrace"; he referred to technology ''repeatedly promised" but not delivered; and he said that resources were urgently required. That is a resounding message to which I hope the noble Baroness, Lady Scotland of Asthal, will respond.
The noble Lord, Lord Goodhart, went quite Shakespearian. I join him in worrying about the Henry VIII clauses and about seeking reform of an approach dating back to the time of Henry II; namely, the circuits.
Questions were raised about what will happen to the Duchy of Lancaster. Speaking as a former Chancellor of the Duchy of Lancaster, I am very worried about the statement in paragraph 51 on page 13 of the Explanatory Notes that the current responsibilities of the Chancellor of the Duchy of Lancaster will be transferred to the Lord Chancellor. We need a response on that point. Previous Chancellors of the Duchy of Lancaster whom I have consulted seemed completely unaware of this massive change in what were our responsibilities. I hope that we can hear more on the subject.
I turn finally to Clauses 92 and 93 dealing with periodical payments—which I think have caught a few people by surprise. I never criticise the noble and learned Lord the Lord Chancellor for finding a primary legislative opportunity of introducing such provisions. But, as the noble Lord, Lord Goodhart, pointed out, in its present form with provision for variation this will provide serious problems for insurers. The noble and learned Lord, Lord Donaldson, welcomed structured settlements, as many of us do, but there is a danger under the present provisions, if enacted by statutory instrument—namely, a review—that no cases will ever close. Perhaps, as Senior Partner in a firm of solicitors, Beachcroft Wansbroughs, I should welcome this provision. The thought of no case ever being able to close is a prospect which lawyers might support, but which no sensible lawyers would want. We must not allow anxiety to return over the awards of damages through a threat of variation on either side. Perhaps the answer is to move in that direction only in the most exceptional cases and only after careful assessment of the impact on the insurance and financial sector.
We have instanced previously in this House the danger of retrospective legislation. The opening up of awards for review in the future must not be allowed to apply to any existing claims for which premiums have been collected and for which reserves have already been set. There is a danger of the shadow of uncertainty remaining over civil litigation for some time. While I welcome the opportunity for the courts to order structured settlements, there must be a finality to the process.
79 We have had an interesting debate. I now look forward to the response of the noble Baroness, Lady Scotland. We on this side of the Chamber await the Committee stage, when we shall seek to improve the Bill.
§ 7.33 p.m.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
My Lords, I say straightaway how much I welcome the opportunity to respond to what—as the noble Lord, Lord Hunt, said—has been an interesting and wide-ranging debate. But as he indicated, there have been in excess of 34 questions. The noble Lord asked a further four. I have in front of me sufficient paper to do a creditable job but I shall not seek to answer each and every question now. However, just to reassure my officials, I should inform your Lordships that I do have an answer in full to each and every question that has been asked. I pay tribute to all those who have made such high-quality contributions. In this debate, we have heard the "gems" of the House. As I look round the Chamber, I think that we need to celebrate the fact that this evening the Lords have shown their worth.
I should also like to avail myself of this opportunity to do what my noble and learned friend the Lord Chancellor has done on so many occasions; namely, to applaud the lay magistracy for the sterling work that its members do. That has been echoed by a number of speakers. There can have been no stronger advocate for the lay magistracy than the present Lord Chancellor, who, over the past five or six years, has made his support known and felt universally.
Typically, magistrates' courts are community courts, and the Government have demonstrated their faith in the lay magistracy by doubling magistrates' sentencing powers in the Criminal Justice Bill. The 30,000 magistrates represent one of the most significant commitments to volunteering in this country and they have this Government's every confidence.
It has been a pleasure to listen to the Bill being welcomed on all sides of the House. I thank in particular the right reverend Prelate for giving us his blessing in this regard; and it was sweet indeed to hear the noble and learned Lord, Lord Ackner—for whom we have great respect—give it his rare and much treasured endorsement. I for one shall savour that for a long time to come.
As my noble and learned friend the Lord Chancellor reminded us in his opening remarks, reform of the criminal justice system is key to achieving the balance of rights and responsibilities that were at the heart of this year's gracious Speech. The Government have committed themselves to a long-term strategy of reform and modernisation of the criminal justice system. Although we have achieved a great deal already in this direction—I thank the noble Lord, Lord Hunt, for his compliments in that regard—we 80 have to do better still to make the criminal justice system more "joined up", fit for this century and capable of delivering justice for all.
The tenor of the debate was well summed up by the noble Viscount, Lord Tenby, when he spoke of his optimism. I do not think that that optimism is misplaced. This is a carefully crafted Bill. The stakeholders have been fully engaged. I thank again the noble and learned Lord, Lord Woolf, for his compliments on the care with which officials have kept the judiciary informed.
We have had extensive consultation with the magistracy and with all those who are engaged in the delivery of justice. It must be stressed that the Government are not blindly following an agenda of modernisation. In the Bill, we are preserving carefully that which exists and has been proven to work well. But at the same time, we are improving on those areas which no longer work as effectively as they should. The provisions in the Bill are the result of an independent evidence-based assessment of what is needed for thoroughgoing and systematic improvement of the courts. It finds its basis in pragmatism and good sense, and many of its proposed changes are entirely demand led. The Bill modernises the courts system in such a way that it better serves the system—members of the public, victim or defendant—in order that we can remain rightfully proud of our traditions of criminal justice.
The noble and learned Lord, Lord Ackner, with his usual acuity, went straight to the detail of the provision. I shall answer his points in similar detail in due course, although not this evening; but many of the provisions upon which he alighted are re-enactments of provisions which are already in being. I hope that in due course the noble and learned Lord will be comforted to know that, for instance, the provision in Clause 29 is currently set out in Section 53A of the Justices of the Peace Act. In many cases we are not doing much that is new; we are reintroducing that which has already been found to work well.
I appreciate that tonight we have concentrated, rightly, on the changes to the structure of magistrates' courts committees. But that is not the only change. We are also doing something very new. For the first time, we are giving an element of local accountability to county courts and Crown Courts. We are asking for work to be done in partnership so that local needs can be better met. We should all be proud about that. It is important that we remember that this is not simply a reform of the administration of magistrates' courts.
The agencies are not creatures of primary legislation—the noble Lord, Lord Hunt of the Wirral, raised that issue. The Court Service, which administers the county court, the Crown Court and the higher courts, is not in primary legislation. Framework documents are placed before Parliament. We have already committed to working in partnership with stakeholders in its drafting. The agency will be accountable to Parliament, directly through the Ministers of the Lord Chancellor's Department, unlike magistrates' courts committees.
81 I agree with the point made by the noble Baroness, Lady Anelay, that the guidelines must be published as swiftly as possible. I cannot give the noble Baroness a date. I agree that the documents are important. My only caveat is that it is important that the stakeholders are involved in those documents so that what is produced is sound. We will undertake to ensure that they are published as soon as is reasonably practicable. When I have a date, I will apprise the noble Baroness of it.
The noble and learned Lord the Lord Chancellor stated that the Courts Bill will be crucial in delivering modern, efficient courts that are free from unnecessary and avoidable delay, in touch with the communities they serve and responsive to the needs of their users. A new unified administration is the key building block in our strategy to overhaul the criminal justice system. It will simplify court structures. Instead of 43 separate administrative systems, we will have only one, ensuring greater uniformity and consistency. Unification provides the structure for greater integration of the criminal courts and will allow for easier implementation of the other important reforms in the Bill.
I wish to lay to rest some misconceptions that may be developing in noble Lords' minds. I will do so as quickly as possible. I reassure the noble Viscount, Lord Tenby, that he correctly assessed the future position. It will be possible to allow a more efficient use of the courts estate through the unified administration. Sharing accommodation can lead to the provision of better facilities and services to customers and staff. We have already identified some hearing centres that will be saved from closure through unified administration, thus improving access to justice locally. Co-location of county courts in magistrates' court buildings already exists in some places; for example, in Rotherham, Kendal and Ashford. Altrincham County Court has recently moved into the improved accommodation in Trafford Magistrates' Court. We will be able to do that much more systematically.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the noble Baroness for giving way. Further to the point that she has just made, is it conceivable that, with joint use, county courts in some parts of the country might reopen?
§ Baroness Scotland of Asthal
My Lords, it would be possible to assess local needs. On occasion, magistrates' courts committees have looked simply at the estate needed to serve as a magistrates' court, not the broader estate. As a result, courts have been rationalised and closed. At the same time, sometimes in the same locality there has been a need—sometimes pressing—for county, or other, court space. That space could be used very creatively if there were a unified system. Unification enables that rationalisation and proper use to be undertaken to the advantage of the local community. That must be a very good thing.
82 The Association of Justices' Chief Executives has supported the Bill. It has been, and will continue to be, fully consulted on all the proposals so far. It sits on the steering group that is managing the work, so its interests are fully represented.
Some noble Lords expressed anxiety about the 42 criminal justice areas. I can confirm that they will be a building block of the new organisation. We have an opportunity to do much good work. Cases can, therefore, be moveable. Clauses 25 and 39 provide for the sharing of estate that the noble Viscount, Lord Tenby, sought.
The noble Lord, Lord Phillips, raised passionately the concern about court administration councils. They will not replace magistrates' courts committees. They are one element in a new system, not only for magistrates' courts, but for all the courts about which I have spoken, including county courts and Crown Courts. The new system is based on an executive agency, but the CACs have an important partnership role.
The noble Lord, Lord Goodhart, asked why there was no detail about court administration councils in the Bill. As the statement of principle makes clear, the CACs will not act alone but with the civil servant chief officers. The whole point is that they will work in partnership. The Bill cannot deal with arrangements in a departmental agency. It simply sets out, therefore, the fundamental aspects of the councils, which will have to be finely honed.
The noble Lords, Lord Phillips and Lord Goodhart, shared several anxieties. Both said that the role of the council should be set out in a statutory instrument, not in guidance. I reassure noble Lords that we do not believe it will be easy to override councils' recommendations. As well as guidance to councils, the agency's framework document aims and objectives will require working in partnership. The independent inspectorate will review whether it is working. An annual report, which will be laid before Parliament, will report on that.
We want to unify the courts, not to replicate the organisational boundaries of the current system, which Sir Robin Auld rightly criticised, nor to break up the civil and family courts system. The noble Lord, Lord Phillips, in his usual passionate way, said that local Benches were going. No, they are not. They are not going anywhere. Lay justices will be allocated to a local justice area. One of the provisions, in Clauses 14 and 16, that will prevail is the arrangement for electing Bench chairmen and deputy chairmen. The noble Lord, Lord Phillips, also raised concerns about court closures. As I said, unification wall allow more efficient use.
The noble and learned Lord, Lord Mayhew, raised a number of concerns about whether the role of the magistrates' court clerk was going to change and whether we would be creating a different creature, which might have some aberrant effects. I assure the noble and learned Lord that that is not our intention. He said that the justices' clerks would he brought under the control of the Lord Chancellor. The short 83 answer to that is, "no". Clause 24(1) makes clear that a justices' clerk exercising advisory or judicial functions is not subject to the direction of the Lord Chancellor—or of anyone else. No material changes are proposed to the current powers of justices' clerks.
The noble and learned Lord also asked about Benches being able to remove justices' clerks. Clearly, a clerk's functions include satisfying his Bench. If he or she does not do that, the magistrates will be able to communicate that to the local chief officer, who makes decisions within the court administrative council. There will be very close consultation with the Justices' Clerks' Society and the Magistrates' Association on the general role of the justices' clerks. The CCMCC represents those who manage magistrates' courts, not magistrates themselves. The powers of the justices' clerk in the Bill are a re-enactment of existing powers. I fully appreciate the importance of going through that in detail. We shall do so in Committee, but I assure the noble and learned Lord that it is not our intention to create a different creature. We intend the justices' clerks to continue with the independence of role that has been so valuable in years gone by. We also intend them to have similar responsibilities.
§ Lord Mayhew of Twysden
My Lords, I am grateful to the noble Baroness for what she has said with such care. If it is not inconvenient, will she say a word about the criteria that will apply to the appointment—and by whom—of justices' clerks under the Bill?
§ Baroness Scotland of Asthal
My Lords, as I understand it, the appointment system for justices' clerks will not be greatly changed. We are looking carefully at what changes, if any, the new structure will create. I can write to the noble and learned Lord with greater detail on how we propose to do that. I assure him that we take that seriously, particularly now that it has been highlighted. We did not believe that it would be a problem, because we felt that we were simply echoing what was already there. I assure the noble and learned Lord that we shall wish to address any matters that have been highlighted, because we do not want there to be a difficulty on this issue.
The noble and learned Lord the Lord Chief Justice raised a number of issues about how the costs of the Bill will be met. There will be costs associated with setting up the new agency and some costs for the new inspectorate and criminal procedure rule committee. These costs will be met from within the spending limits of my noble and learned friend the Lord Chancellor, using appropriate phasing and piloting as necessary. The noble and learned Lord, with his usual precision, has highlighted a number of issues that I am sure will excite our interest for some time.
I dare not go further. My noble friend Lord Lea made a telling point about what will happen to the workers. Under an order made last November, my noble and learned friend the Lord Chancellor agreed an authorised contract for staff to be appointed on a temporary basis. There are no plans to privatise the courts. This power is useful so that my noble and 84 learned friend can arrange for agency typists or clerical officers and for IT-based services, for example for civil processing.
I now see that I have been speaking for 21 minutes. I have an answer to each and every noble Lord. I am sorry that I shall not be able to give them all. For example, the noble Lord, Lord Hooson, asked a number of questions about how the magistrates' courts committees in Wales will be rearranged and the role of the Welsh Assembly. I shall write to noble Lords on those issues that I have not been able to deal with tonight. On behalf of my noble and learned friend the Lord Chancellor and myself, I should like to say that this has been a very interesting debate. We shall consider every suggestion that has been made before Committee stage. If we feel that changes are necessary, we shall certainly seek to consider them properly so that we shall be able to give a proper answer when the Bill comes back in Committee. I thank noble Lords for their support. It is unusual to get wholehearted, if critical, support from all sides of the House. I very much welcome it.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.