§ 5.26 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]
§ Clause 5 [Role of court administration councils]:
Lord Dixon-Smith moved Amendment No. 24:
Page 3, line 23, at beginning insert "after consultation with the chairman and deputy chairmen of any local justice area affected by the recommendations
§ The noble Lord said: We come back down to earth with a bump, from dealing with matters that are of immense historical and strategic importance, to a matter which is of intimate importance to local people around the country. Amendments Nos. 24 and 25 are simple, but important. The first seeks to ensure that when a court administration council makes a recommendation to the Lord Chancellor which might affect a local justice area, it will consult the people involved in that area before any recommendation is made. Indeed, I am sure that in her response the noble Baroness on the Front Bench opposite will confirm that that will be the case.
§ Amendment No. 25 is similarly directed, its purpose being to improve what I choose to call the "local ownership" of the courts and the Court Service. It would provide that, if a recommendation is made by a court administration council to the Lord Chancellor with which the Lord Chancellor then disagrees, there would be an opportunity for it to be sent back and reconsidered. The debate should continue until agreement on what is to take place is reached between both parties; that is, the court administration council and the Lord Chancellor.
§ At present the Bill is explicit and incomplete. It gives powers to the Lord Chancellor to appoint the court administration council, the chairmen, clerks and chief executives of the local bench, and to settle matters such as salaries and remuneration. In reality, these matters will be dealt with initially by the noble and learned Lord's department and ultimately by the executive agency. However, as the Bill is drafted, no way is provided for resolving a disagreement between a local court administration council and the Lord Chancellor. I submit in all seriousness that such means of resolution ought to be in place.
§ We have already debated at length the question of local ownership. I support entirely the proposal for a unified court administration and I believe that great improvements will be brought about. However, perhaps I may use the old cliche and say that the devil is in the detail. The difficulty I face, along with other Members of the Committee and, I suspect, the noble 141 Baroness on the Front Bench opposite, is that 'we do not yet have the detail. I do not think that we shall be in a position to approve the legislation until we know how it is to work. I beg to move.
§ Lord Waddington
Perhaps I may I remind the Committee that the statement placed in the Library of the House on 4th December referred to "agency chief officers" managing local areas. Thus in Clause 5 the term "Lord Chancellor" means, in effect, the agency chief officer, it being to him or her that the court administration council would make its recommendations. I hope that I am right on the point, but I imagine that that will be the reality of the situation.
We know from our earlier debates and as a result of Clause 4(4) that there may be only one lay justice serving the council. Furthermore, at present we have no idea how big may be the area to be represented by a council. In those circumstances surely it would be quite unreasonable to expect one justice to be able to speak for all the Benches in the area. We should put in place a requirement for the council to consult all the chairmen and deputy chairmen affected. I therefore support the amendment.
§ 5.30 p.m.
§ Lord Graham of Edmonton
I rise with diffidence. There are those in the Chamber closer to the magistracy than I am. My claim is that my wife was a magistrate on Haringey Bench for many years. I have received a letter from Mrs Hilary Kirkham, who is the chairman of the Bench, drawing attention to some amendments supported by her and her colleagues, on which we may touch later.
I listened to the noble Lord, Lord Dixon-Smith, who has a wealth of experience and speaks with authority, but before hearing my noble friend the Minister speak I hesitate fully to support his intention. I cannot really believe that the Ministers and civil servants involved in drafting the Bill have not had due regard to what must be essential—at all stages to take along with them the people on the ground.
The noble Lord, Lord Waddington, whose experience I respect, rightly draws attention to the fact that there will be only one magistrate on what one might call the key body. It may be quality; it is at least a voice. I am certain that the way in which democracy works is that, if that is how my noble friend tells us it is to be, steps will be taken to ensure that whenever the one magistrate speaks, he or she will have taken fully into account observations received from colleagues.
These are early days. I imagine that some flexibility and discretion must be exercised by everyone at this stage. If my noble friend can assure me that she is well aware that people outside the House are concerned, watching and waiting for what I call kind words from her, that will satisfy me; I hope that it will satisfy them.
§ Baroness Anelay of St Johns
I support the amendments tabled by my noble friend Lord Dixon-Smith. They approach the matter constructively in an 142 attempt to improve consultation and conflict resolution. I am sure that the Government are at one with him on that.
I am not sure whether the noble Lord, Lord Graham, was here last week when we discussed in detail the objections of the Magistrates' Association and the Central Council of Magistrates' Courts Committees to the Government's proposals for the setting up of CACs and the apparent—I emphasise that word—withdrawal of a local voice from those bodies. Members of the Committee who were here will know that there was much passion on all sides about the matter. As my noble friend carefully pointed out in his opening remarks, today we are considering ways in which we can try to make the Government's proposals work better, if we end tip with them.
I should find it most helpful if the Minister could say that she would welcome a meeting with a representative from each of the Benches who took part in that passionate debate last week, because behind the passion is determination on all sides to ensure that the Government's objectives are not undermined, but that the local voice of magistrates remains. We heard the assurances that the Minister gave last night. If she can accept my request for a meeting, it may be helpful if it were to involve one representative each from the Official Opposition Benches, from the Liberal Democrat Benches and from the Cross-Benches. I know that the noble Viscount, Lord Tenby, has had a great interest in the matter.
§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
I should be delighted to have the meeting the noble Baroness suggests. As I said last time we debated the Bill, Government and Opposition Members have the same intent and desire. I should be happy to have such a meeting so that we can consider how better to hone some of the provisions we have debated. That is a fine idea; I accept it without reservation.
I am happy to give my noble friend Lord Graham the reassurance that he seeks. As we have said, it is extremely important that the magistracy fully understand the nature of the changes and are fully involved and consulted.
The amendment moved by the noble Lord, Lord Dixon-Smith, would require court administration councils to consult the chairmen and deputy chairmen of local justice areas affected by their recommendations before making those recommendations to the Lord Chancellor. I have said, but perhaps it is right that I repeat, that we are dealing not just with magistrates' courts but with county courts and the Crown Court. There will be circumstances in which it is entirely appropriate for the council to consult the representatives of the local magistracy—perhaps the chairman of local justice areas or maybe all local magistrates, depending on the nature of the recommendations. Equally, there will be times when the council's recommendations affect only the county courts or Crown Court, in which case it should involve others in the deliberations.
143 The amendment is therefore too restrictive. This is one of the issues on which my noble and learned friend the Lord Chancellor will issue guidance to councils, as we discussed when the Committee last met on 28th January. I then gave a clear undertaking that we will give due consideration to how to ensure the correct parliamentary scrutiny of such guidance. But even that guidance will not seek to be unduly prescriptive. This is an issue on which we must afford the councils some discretion. As I said, we must bear in mind that each council will have at least one magistrate among its members—as my noble friend Lord Graham and others mentioned—who will be best able to advise the council on which issues will interest the local magistracy.
It would be inappropriate to bind the council to an unduly restrictive statutory process that is unfit for the purpose. The local chief officer will be under an obligation to involve the magistracy, just as the Court Service is obliged to do so under the terms of its framework document. Benches of magistrates associated with individual magistrates' courts will also still have influence over the operation of those courts. For example, they will continue to be consulted administratively on decisions to assign and replace justices' clerks. Benches and Bench chairmen must all feel that they have productive relationships with their clerks and administrators.
We want magistrates to have a say in how they should be involved in the agency's work. The answers may vary between areas, and it is right that the arrangements should do so, too. But we will explore whether it would be appropriate for the court administration councils to establish consultative arrangements with the magistrates in their area through, for example, a consultative panel. So we are open to looking at which vehicles we can use to deliver what noble Lords have indicated they would most like. I hope that, with that explanation, I can invite the noble Lord to withdraw his amendment.
§ Lord Dixon-Smith
I heard what the noble Baroness had to say. I would be the first to recognise the deficiencies of my amendment. For a moment, I thought that the noble Baroness would volunteer to take it over and put it right. It was a vain hope. She is in the position of having brought a wonderful invention before a court of adjudicators. It may be a wonderful invention, but the court of adjudicators has spotted a hole in it. Whenever we try to fill the hole, or find out what goes into it, we get an imprecise answer. We are in danger of sounding like a gramophone record with the needle stuck—a passé picture but the best I can think of.
However, I take encouragement from the fact that the noble Baroness welcomes a meeting. We should not allow the legislation to go forward with this appalling gap. I accept that the circumstances of each court administration council will be difficult. None the less, the Bill contains a requirement for the 144 membership of court administration councils. It may be a minimum requirement, but, as I argued, it is insufficient.
I accept that other court interests must be taken into account. I had hoped that the noble Baroness might provide the solution, building on my suggestion. That has not happened. But we have the meeting, the results of which I look forward to. I beg the noble Baroness not to try to pursue the Bill further without filling the information gap. That needs to be done before we can approve the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.45 p.m.
Lord Fraser of Carmyllie moved Amendment No. 24A:
Page 3, line 23, leave out "in" and insert "with particular reference to
§ The noble and learned Lord said: The amendment also stands in the name of my noble friend Lord Kingsland. Very appropriately, it has been grouped with Amendment No. 27. I readily acknowledge that, if Amendment No. 27 is unsuccessful and subsection (3) is not deleted, my amendment will not make much sense. There is a transparent contradiction between the two.
§ In response to various amendments on Clause 4, the Minister, not without persuasive effect, argued that, as there was not yet a set model for the court administration council areas and as the Government were carrying out consultation, our appropriate course of action was to await the outcome of consultation. That is not a bad argument. We might argue that it would have been more appropriate to begin consulting earlier so that, by the time we debated the matter, we would have some idea of the Government's thoughts as a result of the consultation. The Minister seemed more than a little hurt that the Government, having carried out consultation for once, should be criticised for doing so. I do not criticise her for that. It is not a feeble argument. The obverse of what she said is that the Government do not yet have a clearly defined view on the appropriate size of a court administration council area in England or Wales. If that is correct, it follows that the areas cannot be so obvious or naturally fixed as to be constant for ever.
Subsection (3) restricts court administration councils, which can provide recommendations under subsection (1), but cannot do so,
on matters which do not relate specifically to the area for which the council is established".
§ There is an inherent contradiction. On the one hand, the Government are not yet clear on what the areas should be; on the other hand, they say that a council shall not offer advice to the Lord Chancellor unless it relates specifically to the area for which it is responsible. That is odd and wrong. As the Minister will appreciate from my previous interventions, I do not argue that the general duty imposed upon the Lord Chancellor should be diminished in any way. He should continue to hold that duty. But subsection (3) should be deleted. It is far too specific and restrictive.145
§ It would be more appropriate for the Lord Chancellor to follow my suggestion in Amendment No. 27A. The court administration council should give advice "with particular reference"—no more than that—to the area for which it is established. That is logical and sensible. It is extraordinary that if, for example, a council says that its area is unnatural and should be extended in a certain direction, the Lord Chancellor does not have to give the recommendation less regard than he might give to one relating to the council's area; rather, he is entitled under subsection (3) simply to ignore it. I do not suggest that this Lord Chancellor or any future one would do that. But his officials would be entitled to say that they did not need to listen further to a council's recommendation because it did not relate specifically to the area for which it was responsible.
§ I seek to amend the Bill to allow the Lord Chancellor's general duty to prevail, as it should. However, he should not be in a position to ignore a recommendation because it does not relate specifically to a council's area. In some circumstances it may be very appropriate for a council to say that its area is of the wrong size or location and that activity carried out along the motorway from it is imposing an excessive burden on it. It would be unusual and unattractive if that recommendation were not considered. I cannot see why the Lord Chancellor should not be great and grand enough to accept the advice of a council on matters not relating exclusively to the area for which it is responsible.
§ In that context, my amendment would provide that a council's recommendations should be only "with particular reference to" the area for which it is established. That should not mean that councils are wholly excluded from offering advice on matters relating to adjoining areas or those of a broader and more general character. It is only in that context that I move the amendment.
§ Lord Borrie
Does the noble and learned Lord, Lord Fraser of Carmyllie, envisage that the council for one area would offer recommendations relating to a neighbouring area where there is another council? Is not the noble and learned Lord's proposal a recipe for conflict between court administration councils?
§ Lord Fraser of Carmyllie
That is why I was careful to indicate that I thought that the general duty imposed on the Lord Chancellor of the day should be maintained. I can understand readily why the Lord Chancellor of the day, if faced with an opinion from one court administration council that relates to the area of another council, should weigh in the balance the value of what is being said. I cannot see what is unusual or unacceptable about that.
Following on from what the Minister said, I object to the idea that those areas are not absolutely fixed and naturally determined. The Government do not, as yet, know what the areas should be. The Lord Chancellor, in the exercise of his general duty, will be in a position to say, "Of course, I give greater weight to the council that represents this area". However, there may also be 146 occasions on which he will want to say, "I have listened to what the adjoining council had to say and it has made a good point". As matters stand, he need not even consider the views of the adjoining council because, if the matter does not relate specifically to its area, its views will be taken off the desk and ignored. I beg to move.
§ Baroness Anelay of St Johns
I would not normally dare to rise before the noble Lord, Lord Graham of Edmonton, who has given longer service in this House and another place than I. The Chairman of Committees has been extremely helpful to us this afternoon, so I shall try to keep to the order. One of my amendments is grouped with Amendment No. 24A, so it may be convenient for the Committee if I speak briefly to Amendment No. 26 now. I endorse everything that my noble and learned friend said about Amendments Nos. 24A and 27.
Amendment No. 26 relates to the way in which the Lord Chancellor will use the recommendations to which my noble and learned friend referred to inform his decisions about how best to fulfill his duty. The Bill requires the Lord Chancellor to,give due consideration to recommendations provided by the councils".My amendment would change that to a requirement to "have regard" to recommendations provided by the councils, and I use it as a device to ask the Minister to explain to the Committee the exact nature of the requirement on the Lord Chancellor. Does the phrase "due consideration" mean that the Lord Chancellor will have to consider the recommendations but will then be given unfettered discretion to follow or reject them, for whatever reason, without giving those reasons?
§ Lord Waddington
I am also troubled by Clause 5(3), but the noble Baroness may be able to remove my worries. It is one thing for a court administration council to seek to make recommendations about how another council does its work in its area and another for a council not to be able to make any recommendation to the Lord Chancellor on the lines that experience has shown that the boundaries between two areas have been wrongly drawn. That is the point. If my reading of it is correct, Clause 5(3) would stop a council commenting even on that. I cannot believe that that is the Government's intention.
§ Lord Graham of Edmonton
I was interested in what was said about the Lord Chancellor not even having to take views into account. That is right, but it would be a queer Lord Chancellor who was not made aware of nuances and feelings. They will all have the opportunity—such as the one that I am using now— of being approached by friendly magistrates asking for their point of view to be considered
As I read the Bill and other papers, it seems that the intention is to focus attention or concentration in an area on the things that affect that area. I do not think 147 for a moment that there is likely to be a free-for-all, in which councils not only try to improve and look after their own patch but are free to comment on others. All of us have experience of magistrates; they are a powerful bunch. They are well appointed, well experienced and conscious of the important part that they play in a community. There will be few, if any, occasions on which people will want to interfere in, adjust or influence matters outside their own patch. I will be interested in what the Minister says about the danger of that happening, but I cannot see the value of the amendment.
§ Lord Goodhart
I am happy to support the amendments, particularly Amendment No. 27.
The clause seems almost to be offensive to court administration councils. Subsection (1) requires councils to provide the Lord Chancellor with recommendations about his duties in the area in which the council is established. Under subsection (2), the Lord Chancellor must give due consideration to those recommendations. Clearly, the Lord Chancellor is not required to give due consideration—indeed, any consideration—to recommendations that go outside the area for which the council is established. Nevertheless, a court administration council may, on occasion. wish to do so. The recommendations that it makes may be sensible and helpful, and, in those circumstances, the Lord Chancellor may wish to consider them, whether or not he is under an obligation to do so.
It seems pointless and, as I said, virtually offensive to the councils to include the extraordinarily negative subsection (3). which more or less tells them that they should not itch to interfere in matters that they do not understand.
§ Lord Phillips of Sudbury
When the Minister replies on Amendment No. 26, I would like her to confirm that Clause 5(2) would mean that, in considering recommendations, the Lord Chancellor could have regard only to the efficiency and effectiveness of the court system. That is how his duty is defined under Clause 1(1). If a recommendation were made that related primarily to the quality of justice, what would be the obligations on the Lord Chancellor?
§ Lord Mackay of Clashfern
It has just occurred to me that one of the areas that the Lord Chancellor will have to have in mind is the distribution of money for the purpose of supporting the various justice services in the councils' areas. The present Lord Chancellor may have some new way of doing, it, but it has often been done by reference to a formula of reasonably general application. I could see an area council having some views on such a formula, which would be of general application throughout England and Wales. They might, for example. think that population was not sufficiently weighted in the formula or that sparsity of population was not taken into account sufficiently.
148 Those are general considerations. Although their effect on a particular area is important, they are not specifically related only to one area. Such considerations would possibly be cut out by Clause 5(3). I see nothing to prevent the Lord Chancellor from ignoring any recommendation that does not relate specifically to the area for which a particular council has responsibility. Subsection (2), taken along with subsection (1), would give him that power. Therefore, I wonder whether subsection (3) might be unnecessary. It might prove a needless obstacle to proper consideration of, for example, a funding formula.
§ 6 p.m.
§ Baroness Scotland of Asthal
I hope to assuage some concerns raised by Members of the Committee. The Government believe that the interpretation that can be given to the way in which area councils will work will deal with many of the issues. I take on board the comments made by the noble and learned Lord, Lord Mackay of Clashfern. However, there is always an argument that any formula has an impact on the local area. As it impacts upon the local area, that council can make representations to say, "The effect upon us of the formula is as follows". That—
§ Lord Phillips of Sudbury
I am grateful to the Minister for giving way. Does the Minister mean that the word "specifically" is superfluous? What is the meaning of "specifically" in the light of what she has just said?
§ Baroness Scotland of Asthal
It means specific to that area. The point is that issues will impact on local areas in a different way. Therefore, the local area is entitled to say, "The formula applies to us in the following way. The results of that are aberrant for the following reasons—namely, A, B and C". Those are issues which the Lord Chancellor would be obliged to take into account if recommendations were made concerning them.
§ Lord Carlisle of Bucklow
In the examples that the Minister has given, the councils may want to compare the effect of the formula on some other areas. Surely, they should be allowed to comment on the effect on another area if it relates to what is happening in their area.
§ Baroness Scotland of Asthal
I understand the point and shall respond as clearly as I can. The Bill, as drafted, deals with his difficulty. As Members of the Committee know, the areas will be specified by order—as referred to in Clause 4(2)—and can, if appropriate, be changed by an amending order.
The interpretation that we give the current phrasing is this: the recommendation about the size or shape of their area would be included under the current clauses because they would relate to the administration of the courts in their area. To take the example given by the noble and learned Lord, Lord Fraser, they would be entitled to say, "The courts within our area are adversely affected because of the following issues.
149 Therefore, we believe we should be bigger, smaller, rounder, fatter", or whatever they would wish to say. We believe that that would fall within the category of issues which could properly be subject to recommendations and which the Lord Chancellor would have to consider.
All Members of the Committee have said that they want the councils to concentrate on their local area and give advice to the Lord Chancellor about what should happen in it. Perhaps I may take the phraseology of the noble and learned Lord, Lord Fraser. That would enable, for example, a council in the North West to make recommendations which may impinge on a council in the South West. Those views may be interesting but, as the noble Lord, Lord Borrie, said—very cogently, if I may respectfully say so—they may conflict diametrically with the recommendations made by their own council. Doubtless, they might say that it was unreasonable for the Lord Chancellor to give inordinate weight to a council which was not seized of the particular nature and problems of that area. Therefore, we have tried to phrase the provision in a way that will enable a council to make recommendations about any issue that may impact on its area, but not to give recommendations which may impinge upon another council's area which, itself, will be making recommendations.
Furthermore, in shaping guidance we must look at what guidance and training would need to be given to councils to include the need to work co-operatively— for example, competing or working with neighbouring areas. The noble and learned Lord, Lord Mackay of Clashfern, will know that very good support is given within the Court Service from one area to another, with members of the judiciary and others helping to cope with the ebbs and flows of work. The cooperation has been successful; that is something we believe will come out of a unified administration. We do not believe that that will be the difficulty that Members of the Committee indicated.
We do not believe that we are being—in the words of the noble Lord, Lord Goodhart—insulting. That was not our intention in the way that matters have been phrased.
I turn now, in sequence, to Amendment No. 26. The reason that the wording "due consideration" was chosen was because it was considered stronger than "due regard" or "in regard to". The Government are by no means wedded one to the other; we want the strongest term. We thought that the term we alighted upon was the stronger. If Members disagree, we shall listen to alternative views. However, there is not much of an issue between us. If we are persuaded that the wording suggested by noble Lords opposite is to be preferred, that will not be a difficulty. I invite noble Lords not to move the amendment. I have not heard very much argument to support "have regard to" as being stronger. If it is, I am more than happy to accept 150 it. However, our view is that "due consideration" is stronger. I thought that Members of the Committee would prefer the stronger term. I shall come quietly.
§ Baroness Anelay of St Johns
I repeat what I said in speaking to my amendment. It was genuinely a probing amendment to obtain a flavour of the intent behind the Government's drafting. I am happy that the Minister has made it clear that the Government intend there to be a strong onus upon the Lord Chancellor. That is the kind of commitment we were seeking. I shall not move the amendment today.
§ Baroness Scotland of Asthal
I am grateful. Furthermore, I am happy to attend a meeting as indicated by the noble Baroness, Lady Anelay. If' there are further issues that she and other noble Lords feel appropriate, I shall be happy to listen. Our intent is to make the wording firm, not weak.
I turn now to Amendment No. 27 which appears to have excited a little anxiety, particularly on the part of the noble Lord, Lord Goodhart. I should like to explain in further detail the intention behind subsection (3). Its purpose is to focus the councils on local services. It would exclude from their remit those aspects of administrative work which might be managed functionally, on a national or regional basis. National services would include the proposed business centres dealing with "back office" administration, which are central to our plans to modernise the civil and family courts. These will perform much of the routine administrative work currently being performed at individual court buildings.
The idea of dealing with administrative work at business centres or "back offices" which may support several hearing centres or provide services to the whole country is not new to the Court Service. The County Court Bulk Centre has recently celebrated its 10th anniversary and the Immigration Appellate Authorities are soon to open their second centre following the success of the Loughborough Support Centre.
As part of its modernisation plans, the Court Service intends to establish a number of these centres with each one employing up to 500 people and supporting approximately 50 to 55 courts. They are therefore likely to cover the area of more than one court administration council. At this stage, locations have not been determined for these centres. Strong service level agreements will be established between each centre and the courts from which it receives work.
We also intend to explore increased online services, building on the success of the Court Service's money claims online scheme, with which I know many Members of the Committee will be familiar. This might include, for example, an electronic service relating to housing claims. This could possibly include work currently conducted through the magistrates' courts, but would include only routine administrative work.
Managing the business in this way will release time and resources to manage things that need a local basis, such as customer service and hearings. This is not 151 about centralisation for the sake of it, but about the best way to organise court business to ensure that local managers, staff and court administration councils are free to focus on local delivery—one of the key elements of which is providing the best possible support to magistrates and judges.
Clearly, councils will have an interest in the way that business centres function because the local courts in their area will be customers of those centres. However, we envisage that this relationship will be managed by a service-level agreement. It would certainly be open to a local council to make recommendations about that agreement. We want to avoid having national or regional services managed in the interests of one of the areas that they serve and not in the interests of all users.
We want the court administration councils to focus very much on local services. We believe that subsection (3) provides this.
§ Lord Goodhart
Does that mean that if, for instance, a court administration council is dissatisfied with the nature of the IT services provided centrally, subsection (3) prevents it from commenting on a service that is provided nationally? Surely, if there is a local impact it should be able to comment. However, the Minister appears to indicate that it may be outside the powers of the council to comment.
§ Baroness Scotland of Asthal
I thought I had made it clear that anything which has a direct impact on the delivery of services in the local area becomes a competent issue upon which the councils can comment and make recommendations. I have also said that it can be important to try and get the various areas working co-operatively together. An issue relating to IT, mentioned by the noble Lord, will clearly be of importance because the central system must work compatibly with all the local IT systems to ensure that we achieve the value that we want from the system.
I reiterate that the Court Service already has 10 years' experience of dealing with certain issues centrally. It knows the benefits of taking away some basic administrative tasks which releases local people to deliver a face-to-face service more effectively, not burdened by services that can be done more efficiently and effectively by others. That is all we are talking about.
§ Lord Phillips of Sudbury
I understood the Minister in her last explanation to say that the central service is taking away administrative services in order to operate them nationally and to set up centres in different places. However, I am not clear whether in that event local councils will have the right to make recommendations.
§ Baroness Scotland of Asthal
I said in answer—and I am happy to say it again—that councils will have an interest in the way the business centres function. The local courts in their area will be the customers of those centres. Therefore, we envisage that the relationship 152 will be managed by a service-level agreement. We are trying to make a practical arrangement which will work well for councils and for local areas.
§ Lord Phillips of Sudbury
There is a difference once the business centre is set up and there is a service-level agreement in which the council will have an interest. However, the Minister seemed to say in her opening response to the amendments that there would be no local right of recommendation on the strategic decision prior to the establishment of the local business centres. Perhaps it is necessary for us to read Hansard carefully and return to this important matter.
§ 6.15 p.m.
§ Lord Donaldson of Lymington
Perhaps I may raise a point of construction, which is what I believe it to be. I have been sitting here minding my own business and listening to the various comments. The real problem, as I see it, is the meaning of the word "specifically". If one looks in tomorrow's Hansard at the speech of the noble and learned Lord, Lord Mackay of Clashfern, one will see that he said "specifically only" in one passage. That is his interpretation of the word "specifically"; it means "specifically and only". The Minister's construction is different; meaning "as long as it applies to the local area".
I am not saying which I believe to be right, but it seems silly that there should be problems over the construction of one word. It may well be that parliamentary counsel, assisted by lawyers from the department, could find some other word which makes it clear what is intended.
§ Baroness Scotland of Asthal
I hear and am grateful for what the noble and learned Lord, Lord Donaldson, said in relation to that matter. Members of the Committee will see from the current drafting that the word "only" does not appear. The word "specifically" appears. Furthermore, I have tried to make clear the construction which we will place on that word and that the guidance to be issued will clarify the way in which the relationship should work.
§ Lord Mackay of Clashfern
I used the word "only" because the Bill states that,on matters which do not relate specifically to the area",a council is not to make recommendations. Therefore, the only recommendations it can make are those which refer only to the area for which it has responsibility. That seems to be implicit in the present construction. It may well be that some happier construction can be found. At the moment, I find it difficult to see what subsection (3) adds to the combination of subsections (1) and (2)—but obviously I am learning.
§ Lord Mayhew of Twysden
Without being a bore, perhaps I may offer a middle way on this little matter of "give due consideration" and have "regard to". I thought I heard my noble friend say that we would not move the amendment, but we may have to return to the matter. The middle way, I propose, is merely to knock out the word "due" and say that the Lord Chancellor 153 shall "give consideration". The trouble is that leaving in the word "due" does not rule out the possibility that a Lord Chancellor might say, "This is not worth any consideration at all". If one knocks out "due", all is perfectly happy.
§ Lord Phillips of Sudbury
On this difficult little word "specifically", would it not be possible for the Minister to write to the noble and learned Lord, Lord Mackay of Clashfern, indicating how the clause would be different if "specifically" were left out and the provision simply read,which do not relate to the area"?With that wording, we might achieve an outcome that we can all understand.
§ Lord Fraser of Carmyllie
I had not anticipated that this small amendment would lead to such a fascinating debate. I am not mightily persuaded by what the Minister says. We offered her an opportunity to correct an erroneous impression of the Lord Chancellor's Department outside this Chamber. I believe that there is a concern that the Lord Chancellor's Department is becoming all-powerful and overweening in its attitudes. That impression seems to be well established by the inclusion of subsection (3).
The Lord Chancellor will have a general duty and a proper power all over the country—I have no objection to that because he has a real responsibility for the administration of justice—but every court administration council is to be kept in its box. It is not to do anything except make specific recommendations about its area.
If an area council somewhere in the north-east of England wanted to make a recommendation about the south-west of England, I readily understand that the Lord Chancellor of the day might consider that little weight should be attached to that recommendation. However, it seems extraordinary that in no circumstances, as I understand subsection (3)—I hope that the Minister will not think me arrogant when I say that I have some fairly heavyweight legal opinion on my side in regard to the meaning and interpretation to be attached to subsection (3)—would an area council be entitled even to make a recommendation. It would not be for the Lord Chancellor to say, "That is a stupid observation and I shall not give any regard to ii"; the area council would not be able even to make the observation.
These councils will not consist of groups of magistrates with hay in their hair; they will have one member who is a judge.
§ Baroness Scotland of Asthal
I hesitate to interrupt. Perhaps I am not speaking with the clarity to which I believe I have become used, but I said that the example given by the noble and learned Lord, Lord Fraser, would be included within the definition. It is our understanding that a local council could make recommendations and the Lord Chancellor would be obliged to give either due regard or due consideration to them.
154 While I am on my feet, I should say that removing the word "due", as suggested by the noble and learned Lord, Lord Mayhew, would make the Bill weaker. We want to make the Bill stronger. But these are all drafting issues that we can continue to discuss.
§ Lord Fraser of Carmyllie
The example I gave seemed to me to be the simplest one in the circumstance where a council thought that its area might be extended. My noble and learned friend Lord Mackay, with his long experience in office, has brought forward an unanswerable point.
Let me give the example of an area council on either side of the M6 going into England. It was my common experience as Lord Advocate in Scotland that often the police at Folkestone or Dover would pick up someone who was dealing in drugs and follow them, not unreasonably, to discover where the drugs were to be delivered. Sometimes a load of drugs would go all the way up the M6 but, when it got to the North West, the police would suddenly develop a consideration and concern that it was about to pass into another jurisdiction and that they had better move to close the dealers down and bring them before the courts, even though they would not find out—as they clearly wanted to—the ultimate destination of the drugs.
It seems to me that it would not be unreasonable for members of a Cumbrian council to say, "We do not take exception to the practice that has been followed through in Dover, but its consequence has been to impose an additional burden on us". That would be a perfectly reasonable approach to take. But it would not make much sense if they said only, "We have got this number of drug dealers being brought before the courts on a Monday morning" without referring back to the broader practice being followed throughout the country.
I cannot see why the amendment is so objectionable. I have no particular pride of authorship in seeking to insert "with particular reference to", but it seems to me that subsection (3) is truly objectionable—or "offensive", as the noble Lord, Lord Goodhart, said—and I urge the Minister to consider deleting it completely. If those who are advising the Minister and drafting the Bill have another way of approaching this issue, I am perfectly content for them to do so.
I again emphasise that I am not seeking to deprive the Lord Chancellor of his general duty in relation to England and Wales. Indeed, I applaud the imposition of that duty and wish to see it maintained. I certainly do not wish to see the court administration councils dictating to the Lord Chancellor what he should do. All we are trying to do is to take this council out of its box and allow it to speak more broadly than simply with reference to the area for which it is established.
These bodies will not consist of a set of magistrates who may have little or no knowledge of anything beyond their area; they will be councils, some of whose members will be appointed by the Lord Chancellor and one of whom will be a judge. In such circumstances it would be entirely appropriate and 155 proper for councils to be given the opportunity to make recommendations which go beyond purely local matters.
I shall not press the amendment to a Division at this stage, although I am sorely tempted to do so. I hope that the Minister appreciates that I am not satisfied with her answer and that I reserve the right to return to this issue at a later stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 25 to 28 not moved.]
§ Clause 5 agreed to.
Baroness Anelay of St Johns moved Amendment No. 29:
After Clause 5, insert the following new clause—
"JUDICIAL CONSULTATIVE COMMITTEES
(1) A judicial consultative committee shall be established for each area for which there is a court administration council.
(2) The members of the committee shall be drawn from the judiciary for the area.
(3) The judicial consultative committee shall be consulted on any arrangements proposed by the local chief officer relating to the judiciary and judicial functions, including —
- (a) listing of cases;
- (b) use of courthouses;
- (c) appointment of magistrates and judges;
- (d) deployment of magistrates and judges;
- (e) appointment and removal of senior court officers; and
- (f) other matters which may be defined in rules.
(4) Where no agreement can be reached between the judicial consultative committee and the local chief officer, there shall be a right of appeal to the Lord Chancellor, and the Lord Chancellor's decision shall be final.
(5) Rules may make provision for the purposes of this section.
§ The noble Baroness said: The amendment is a response to the views expressed recently in a joint statement issued by the Magistrates Association and the Central Council of Magistrates' Courts Committees. We believe that it is a constructive proposal for the way forward whether or not the Government's present proposals for CACs remain the same or are modified.
§ The amendment proposes that statutory judicial consultative committees should be established which would stand apart from CACs and management boards—whatever they are to be called—with their specific focus and responsibilities. The proposed new clause will ensure that there are clear and unambiguous procedures for consultation on matters such as judicial deployment, allocation of workload, appointment and removal of justices' clerks and the use of court buildings.
§ The CACs, management boards and consultative committees would work closely together and, in the event that agreement could not be reached at local level, there would be an ultimate and transparent appeal process to the Lord Chancellor. Judicial consultative committees would help to ensure the independence of the judiciary and its legal advisers. 156 They would ensure that the executive did not interfere with the judicial decision-making process. I beg to move.
I support my noble friend's amendment. Like other Members of the Committee who have had some judicial responsibilities, I always felt that, although the administrative people did their best, because they were not lawyers they did not always know what were the priorities. That problem is easily dealt with by the amendment in a way which would not cause any controversy. It would ensure that, however zealous a local chief officer may be, he would have to bear in mind judicial opinion.
§ Baroness Scotland of Asthal
I wholeheartedly agree with the noble Lord's final comment; the judiciary should properly make such decisions.
The noble Baroness's amendment seeks to establish a judicial consultative committee for each area for which there is to be a court administration council, with a requirement that the local chief officer should consult the committee about any arrangements he may propose relating to the judiciary. It perhaps puts the burden the wrong way round: under this proposal, the committees would exist in addition to the court administration councils.
I am not sure whether the noble Baroness's intention is to exclude the lay magistracy from membership of such committees, but that would be the effect of the amendment. In terms of judicial decision-making, the amendment misunderstands the relative roles and responsibilities of the administration and the judiciary. The appointment of magistrates and judges, as all noble Lords will know, is the responsibility of the Lord Chancellor. It is not a judicial function and not the responsibility of those who manage the courts. Similarly, I agree with those who say that listing and the deployment of magistrates and judges are the responsibility of the judiciary, supported by staff working in the courts.
As I have said, we propose arrangements to consult local Benches about the assignment of their justices' clerks, but it would not be appropriate to consult a committee of judges, rather than the individual Benches concerned, about these issues.
On the use of courthouses, clearly this is an issue on which judges and magistrates should have a say. But it is equally an issue in which local councils will be involved. We are at risk of creating a system in which there are conflicting duties—to the council and to the judicial committee—which, with this statutory formulation, could be very difficult to manage.
There is no demand from the professional judiciary for this sort of mechanism, and I am as certain as I can be that the judiciary would not support it in its current form. The relationship between the Court Service and the judiciary works well, without the need for judicial consultative committees. The Court Service's framework document sets out clear directions to the chief executive and the staff to foster good relations with all members of the judiciary and to work closely 157 with the judiciary to ensure that all parties are enabled to carry out their responsibilities in the management of the courts and the administration of justice. Although non-statutory, these arrangements are, as I have said, working well.
The partnership between the judiciary, lay and professional, will be crucial to the success of the new agency. We believe that their contribution to the administration of justice will be enhanced by their presence on court administration councils.
The existence of court administration councils will be in addition to, not instead of, good working relationships at court level. Benches and Bench chairmen must all feel that they have productive relationships with their clerks and administrators, just as resident judges must be able to work well with court staff.
§ 6.30 p.m.
§ Lord Graham of Edmonton
I am intrigued by the Minister's comment that there has been no demand for the new mechanism. I wonder if those who have spoken in support would be able to convince me—they certainly have not convinced the Minister—that there is a need for this extra layer of bureaucracy. A conflict, or a likely conflict, ought to be resisted like the plague. Even if there is a nominal case to be made— and I have yet to hear it— I should be grateful if those who support having such a mechanism could convince me that there is a need for it. We are learning all the time from this and other Bills to be aware of creating procedures and mechanisms which sound all right but merely duplicate or replicate existing procedures.
§ Baroness Scotland of Asthal
I have heard of no such request. I, too, should be grateful to know whether noble Lords have had contrary indications.
We believe that the appropriate guarantees will be made, as they are for the Court Service now, n the agency's framework document, following discussions with magistrates and judges about how they want consultative arrangements to work. We would not seek to change that happy relationship unless we could put something better in its place. With the greatest respect, we do not think that this suggestion would do that.
The noble Baroness referred to the Lord Chancellor having a responsibility to do some of the things which are envisaged in the amendment. All Lord Chancellors are splendid people who have a good staff to support them, but the Lord Chancellor is remote from the areas of England and Wales to which the amendment must relate. The Bill provides for a local chief officer. Surely we must make sure that the local chief officer does what the local judiciary considers to be right. That is what the amendment intends, which is why I hope that the Minister will save the Lord Chancellor and the Lord Chancellor's 158 Department from having to take decisions all over the country when they could far better be taken with the help of the judiciary locally.
§ Lord Clinton-Davis
Before my noble friend answers that point, surely the point which is cogently made by the noble Lord, Lord Renton, is dealt with in Clause 5. Am I not right about that?
§ Baroness Scotland of Asthal
I think my noble friend is right. However, I should remind the Committee of the current position. At present, the deployment of judges is a matter for the presiding judge, the resident judges and others in discussion with those judges involved and with the support of the administration. That is not a function suitable for a committee. The way in which the judges currently arrange deployment is entirely satisfactory not only to them but to the system. We would not seek to change that methodology in relation to deployment because it works well.
The Lord Chancellor is not the remote figure that the noble Lord, Lord Renton, suggests. The Bill makes no other references to a local chief officer. I am afraid that that is another flaw in the amendment.
There have been queries as to whether there is a demand for a consultative committee. The committee would include only the professional judiciary, and we believe that there is no demand from the judiciary for this sort of mechanism. I believe that the judiciary is content with the way in which it arranges its business together with the court administrators, and does not seek any change.
§ Lord Thomas of Gresford
Following on from that answer from the Minister, at present the presiding judge of a circuit or the senior civil or criminal judge in a particular court area has the last word on such matters as listing cases, use of courthouses, and so on. Could the Minister define the relationship that is envisaged in the new set-up? Do we take it that the judges will continue to exercise control over the matters referred to in the amendment, including listing of cases, use of courthouses and deployment of judges and magistrates? Will the judges have the last word or will the local chief officer be controlling them?
§ Baroness Scotland of Asthal
We do not envisage a change in the relationship. I have tried to say that the issues mentioned by the noble Lord, Lord Thomas, are judicial, not administrative. We think that there has been confusion between the proper role of the administrative arm and the proper role of the judicial arm. We say that listing is a judicial: Function. The new system should be no different from the old system in relation to the arrangements on deployment that are in place between the Court Service and the judiciary.
The whole point of this unification is to take that which works well from the Court Service and that which works well from the magistrates' courts committees and to harness and garner the advantages from the system and make them universally 159 applicable. We have no intention of weakening those instruments and tools that we have deployed with great effect in the past and which have served us well
§ Baroness Anelay of St Johns
I thank the Minister for her answer. This has been a useful debate and something to which I will need to return, in a slightly different form, on Report.
I was grateful to my noble friend Lord Renton for referring to the intention behind the amendment. The noble Lord, Lord Clinton-Davis, thought that the intention may have been satisfied by Clause 5. I agreed to table the amendment because I do not think that it is, and we need to go deeper than that.
The noble Lord, Lord Thomas, was right to ask about the Government's intent for the future. It is important that we begin to get a picture of that. I go to the root of the issue. There has been a debate about the membership of the committees. I accept that my drafting may not be as good as it could be and I shall look at it again. However, as I understand it, the word "judiciary" normally encompasses within it the magistracy. Indeed the Bill refers to judges as justices. Therefore, I suggest that the judiciary encompasses lay magistrates. However, I appreciate that my amendment did not make that clear and therefore I did not raise it as a matter for debate as it would have been improper so to do. I shall ensure that I do not make that mistake again.
I was intrigued by the important intervention of the noble Lord, Lord Graham of Edmonton. He asked whether the measure we are discussing was needed and said in effect that if there was no great clamour for it we should not introduce it. I put the converse argument; namely, where there is a clamour, listen to it and act. I look forward to the noble Lord, Lord Graham, supporting Members on this side of the Chamber when we table certain amendments on Report, we hope with the agreement of the Minister. I refer to the great clamour of disagreement outside the Chamber on the Government's proposals on CACs. However, at this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ [Amendment No. 30 not moved.]
§ Schedule 1 [Abolition of magistrates' courts committees: transfers]:
Baroness Anelay of St Johns moved Amendment No. 31:
Page 54, line 23, at end insert—
(2A) Before making any property transfer scheme, the Lord Chancellor shall consult any of the persons mentioned in subparagraph (2) who are affected by the scheme.
§ The noble Baroness said: In moving Amendment No. 31 which stands in the name of my noble friend Lord Kingsland. I wish to speak also to Amendment No. 33, which also stands in his name. I wish to refer also to Amendment No. 32 which stands in the names of the noble Baroness, Lady Gibson of Market Rasen, and the noble Lords, Lord Lea of Crondall and Lord 160 Brooke of Alverthorpe. Amendment No 32 is grouped with Amendments Nos. 31 and 33, as is Amendment No. 34 in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford.
§ schedule 1 gives the Lord Chancellor sweeping powers to make provision for the transfer of both the property and the staff of magistrates' courts committees and other bodies. In the case of property, the transfer may be to the noble and learned Lord or to another Minister of the Crown, and in the case of staff, the transfer will be into the employment of the noble and learned Lord. So far, so clear.
Amendment No. 31 would insert into paragraph 1 of the schedule a requirement to consult with the bodies specified in subparagraph (2) where they were affected by a property transfer scheme. The purpose of the amendment is to probe the nature and extent of the property that will be transferred under the provisions of the schedule from bodies other than magistrates' courts committees. It is self-evident that if magistrates' courts committees are to be abolished, as the Government propose, then their property will have to be transferred elsewhere, but subparagraphs (1) and (2) of paragraph 1 grant power to the Lord Chancellor to transfer property, rights or liabilities from other bodies including county and district councils, London borough councils, police authorities, local probation boards and,
any other body which acts under any enactment or instrument for public purposes and not for its own profit".
§ I assume that this last catch-all definition was included just in case any relevant bodies had been inadvertently missed off the list. But if that is the case, one would hope that by now the noble and learned Lord the Lord Chancellor would have some idea which bodies had been omitted to enable them to be notified about the transfer of property.
I recognise that in order to be transferred under a property transfer scheme, the property, right or liability in question will have to,
subsist for the purposes of, or in connection with, magistrates' courts".
§ I should therefore be grateful for clarification from the Government as to the kinds of property, rights and liabilities that will be transferred away from police authorities, probation boards, local councils and the other bodies specified in subparagraph (2) of paragraph 1.
§ We talked about consultation earlier. Will the Government also say whether there has been any consultation with these bodies to date about the provisions of Schedule 1 and, if so, what the outcome of the consultation has been? Do they, as the amendment proposes, intend to conduct a consultation exercise before property is transferred?
I note that the Explanatory Notes state at paragraph 21:
Land will in fact be transferred to the Deputy Prime Minister, who will make arrangements with the Lord Chancellor".
Members of the Committee will recall that at Second Reading the noble and learned Lord the Lord Chancellor said:
This is not a take-over of the magistrates' courts by the Court Service, nor is it a centralising measure". [Official Report, 9/12/ 02: col. 15.]
§ However, it appears from the provisions of Schedule 1 and what is stated in the Explanatory Notes that if the Bill is enacted, property at present owned by magistrates' courts committees, local authorities, police authorities and local probation boards will be transferred to the Deputy Prime Minister. That raises many questions. Why Mr Prescott? What has he done to deserve all this? What will be the terms of the arrangements to be made between the Deputy Prime Minister and the noble and learned Lord referred to in the Explanatory Notes? I hope that the Government will be able to make these matters a little clearer than they are at present.
§ Amendment No. 33 would insert a similar requirement for prior consultation in respect of schemes for the transfer of the staff of magistrates' courts committees into employment by the noble and learned Lord the Lord Chancellor. Such a scheme may also apply to local authority staff whose work is connected with the magistrates' courts. Will the Government clarify exactly how many staff will be transferred under these schemes, particularly staff who are currently employed by local authorities? Have they been consulted on the proposals in the Bill—I hope that the Minister will answer in the affirmative—given that the basis of their employment will be affected?
§ Will the Government amplify what is in the Bill and the Explanatory Notes in respect of pension provision? I shall not discuss that matter in detail as I expect that the noble Baroness, Lady Gibson of Market Rasen, will do so more fully. I beg to move.
§ 6.45 p.m.
§ Baroness Gibson of Market Rasen
I wish to speak to Amendment No. 32, which is grouped with the amendments we are discussing. Amendment No. 32 relates specifically to the staff transfer schemes in Schedule 1. The amendment is designed to ensure that in any question of transfers of employees, all employees are included and their rights upheld. In that it is similar to previous amendments that I have moved during the passage of the Bill.
Obviously, staff transfer schemes are very important to people working within organisations, as I am sure my noble friend will understand. The welcome streamlining of the courts affected by the Bill means that those employed currently by magistrates' courts will be merged with other employees currently working within the Lord Chancellor's Department. However, the language in paragraph 9 of Schedule 1 is of concern to some. It does not seem to me or to the unions involved to ensure that the employment rights of all employees will be covered by the transfer scheme. Nor does it appear to protect the terms of the current collective agreements. In particular—I refer to a matter we discussed earlier during the Bill's passage—the use of the word "may" in paragraph 9(1) in relation 162 to the Lord Chancellor making "a scheme" is not sufficiently strong. It leaves open the possibility' that he may not make such a scheme.
In paragraph 9(5) the word "may" again appears. That is worrying wording as it leaves open the possibility that the scheme may' not cover eligible employees.
Although paragraph 9(6) contains provision for the Lord Chancellor to give directions about consultation in relation to each eligible employee to be transferred, it does not require him to do so. It does not specify the consultation requirements and it does not apply to all affected employees—only to those who actually transfer.
The trade unions representing the current employees strongly believe that the other subparagraphs in paragraph 9 considerably weaken the existing collective agreements and recognition agreements. In particular, paragraph 9(8) refers to a person who is not transferring because he objects to being transferred by the scheme. The paragraph provides under those circumstances for dismissal immediately before the appointed day on which the staff transfer comes into force. There is a question mark as to whether such a dismissal could be regarded as being automatically unfair, subject to any economic, technical or organisational reasons applying.
I recognise that the proposed amendment considerably shortens paragraph 9. but it ensures that all staff are accorded full TUPE protection and that there is no mismatch between TUPE regulations and the Bill. I welcome comments from my noble friend about these issues, as there are genuine concerns on the part of employees involved.
§ Lord Goodhart:
I shall speak to Amendment No. 34, which is in my name and that of my noble friend Lord Thomas of Gresford. We also strongly support Amendment No. 32.
Amendment No. 34 has the effect of removing paragraph 10 of Schedule 1. That paragraph enables orders to be made that have the effect of modifying the pension rights of employees transferred from the magistrates' courts to the new agency. In the course of the modification, there is no guarantee that their pension rights will be maintained at the existing level. Paragraph 26 of the Explanatory Notes says:Paragraph 10(1) provides that transfer scheme may exclude pension provisions. All staff transferring to the new agency will have the opportunity to join the Principal Civil Service Pension Scheme (PCPPS), but this may not happen at the time the transfer takes place. This is because incorporating staff from 42 MCCs and the Court Service into a single organisation will require a significant exercise in rationalisation of terms and conditions".This is a probing amendment to discover what is intended to be done to rationalise terms and conditions, how long that process will take, and whether existing pension rights will be maintained during the interim period for those who are being transferred. If not, what will the position he? We also want to ascertain whether existing pension rights will 163 be maintained and that those who are transferred into the Principal Civil Service Pension Scheme will be no worse off as a result.
§ 7 p.m.
§ Lord Bassam of Brighton
This is an important group of amendments. We fully understand the sensitivities that are wrapped up in the important questions that the amendments address. I shall take some time and care in going over those issues and exploring as thoroughly as possible each of the amendments in turn.
The effect of Amendments Nos. 31 and 33 would be to require the Lord Chancellor to consult those from whom property would be transferred and to consult eligible employees affected by a staff transfer scheme. The noble Baroness, Lady Anelay, explained why she proposed her amendment and asked several questions. We certainly intend that consultation should take place, but I question whether the amendment is necessary to effect it.
On staff transfers, it would be inappropriate to place the Lord Chancellor under a duty to consult staff who are not his employees. The Transfer of Undertakings (Protection of Employment) Regulations 1981, which we intend to follow rigorously, places a duty to consult on the current employer of employees who may be affected by the transfer. Consultation would therefore be a matter for the current employer—either magistrates' courts committees or local authorities.
Paragraph 9(6) enables the Lord Chancellor to give directions to employers about consultation. The directions must be complied with for each eligible employee to be transferred under the scheme, otherwise the scheme cannot be made. In respect of those staff who are not transferred, there would still be a requirement for consultation in accordance with the redundancy procedure under general employment law. The consultation requirement is already there. Furthermore, consultation needs to start now rather than on the coming into force of the Bill. Consultation with the union representing magistrates' courts committee staff is already under way. Consultation with those holding property on behalf of magistrates' courts committees, principally local authorities, will commence shortly.
The noble Baroness, Lady Anelay, asked what property would be transferred. There are several categories of real and personal property that will be transferred: property currently used for magistrates' courts purposes; property recently acquired for magistrates' courts purposes but yet to be put to that use; vacant or mothballed property or vacant space intended to be used to accommodate the magistrates' courts service in future; property in a PFI scheme, either completed or under construction or negotiation; and property that the transferor has contracted to acquire in relation to magistrates' courts but which has not yet been transferred.
The noble Baroness also asked why land-holding powers rested with John Prescott. That is a reasonable question. John Prescott has a very large job and 164 portfolio. The simple answer is that such a provision avoids a proliferation of land-holding powers, so they are not sprinkled and distributed widely. Crown land is held, as a matter of practice, by a single Minister. The current power rests with the Office of the Deputy Prime Minister.
The noble Baroness also asked about the coverage of staff transfers. We will find out exactly how many local authority staff are eligible for transfer. The schedule is designed to cover any whose transfer seems suitable and sensible. There are roughly 10,000 staff working for magistrates' courts committees, but the number who will be directly reliant for their employment within the local authority sector on magistrates' courts committees may be somewhat lower. It is possible that some of those staff are involved in other activities in the local authority. That is why we must undertake an investigation to get it absolutely right.
From my experience of local government— I was responsible as leader for merging one third of a county and two district councils together— I know that finding out how some employees spend their time is not as easy as it may at first look. Anyone who has been involved in a merger will be well aware of the possible difficulties. This exercise is designed to secure that information.
Amendment No. 32, in the name of the noble Baroness, Lady Gibson, proposes that the existing paragraph 9 of Schedule 1 be replaced with a new paragraph. The effect would be to place the Lord Chancellor under a duty to make a staff transfer scheme to transfer eligible employees to the employment of the Lord Chancellor to work for the new agency. The Lord Chancellor's power is currently expressed as discretionary to enable him to have flexibility with regard to who is transferred. There would be no point in transferring anyone for whom there was clearly no suitable job in the new structure. That picks up a point that I made earlier about employees currently within the local authority orbit who will be doing some work for magistrates' courts committees and other work elsewhere within the local authority. We have to try to get that part of it right. Full compensation for redundancy should be available to those employees in their existing post if that is thought to be in the best interests of the service. The normal principles of employment law will require selection for transfer in these circumstances to be conducted fairly.
The effect of new paragraph 9(2) would be to change the definition of the term "eligible employee". Paragraph 9(4) currently defines an eligible employee as,a person who is … under a contract of employment … by a magistrates' courts committee, or … an authority which is a responsible authority for the purposes of the Justices of the Peace Act 1997 … in connection with their functions under that Act".165 Those functions are set out in Section 55 of that Act. The proposed new paragraph 9(2) would change the definition of a local authority eligible employee to a person who is employed,under a contract of employment … by a local authority in that part of the local authority's undertaking which carries out the local authority's functions under section 55 of the Justices of the Peace Act".I seriously question whether this amendment is necessary or desirable. Section 55 uses the term "responsible authority" rather than "local authority". Changing the reference from responsible authority to local authority would not therefore work in terms of drafting. It would also have the effect of excluding any staff employed by other authorities working on duties in connection with Section 55. Until a detailed staff survey of the magistrates' courts committees has been undertaken we cannot rule out the possibility that such staff exist.
New paragraph 9(3) makes specific reference to the Transfer of Undertakings (Protection of Employment) Regulations 1981, to which I referred. In developing our provisions for the transfer of staff, we have followed the drafting model of the Courts and Legal Services Act, which does not include specific reference to TUPE. However, we are committed to following the principles of the TU PE regulations, as we are required to do under the Cabinet Office Statement of Practice. We believe that the Bill effectively replicates the majority of the TUPE regulation provisions and that the Bill as drafted gives protection fully equivalent to those principles.
We are aware of the concerns that the trades unions have raised about our wording here. While I do not believe there is anything between us on the substance of what we want to achieve, I also recognise that it is very important that staff faced with substantial change should have full assurances that their position will be protected. Accordingly, where following further discussions with the unions it seems right to redraft and clarify paragraph 9 of Schedule 1, to give further assurance to magistrates' courts and local authority staff that their rights on transfer will be fully protected as if the TUPE regulations applied, we will bring forward the amendments necessary to do so. I hope that that assurance satisfies that interest and that the amendment will not be pressed.
I turn to Amendment No. 34. As the noble Lord, Lord Goodhart, outlined, the amendment proposes that paragraph 10 of Schedule 1 be removed. Paragraph 10(1) provides that employees transferring into the new agency will not be subject to paragraph 9(7) with regard to pensions. That is consistent with the Transfer of Undertakings (Protection of Employment) Regulations 1981 and with EU legislation (Directive 2001/23).
Eligible staff who transfer to the new agency will become civil servants and will be eligible for membership of the Principal Civil Service Pension Scheme or the partnership pension scheme. Paragraph 10 puts into place the necessary arrangements for staff to transfer from their current pension schemes to the Principal Civil Service Pension Scheme or to the 166 partnership pension scheme. It also allows staff to remain in their present pension scheme after the date of the staff transfer to the new agency. That will be necessary if negotiations with the relevant unions and existing pension providers about staff membership of the PCSPS or the partxnership pension scheme— including matters as detailed as actuarial calculations — have not been completed before the date of transfer.
I can give an assurance that we will endeavour to transfer all staff into the PCSPS or the partnership pension scheme on the date of transfer into the new agency. Obviously, that will be subject to the necessary negotiations with the relevant unions and the existing pensions providers being completed by that date.
The effect of Amendment No. 34 would be to require pension provision—where it is part of the terms and conditions of employment—to be carried over to the new employer. That would in practice be impossible for us to achieve as it is envisaged that transferred staff, as civil servants, would transfer to the PCSPS or partnership pension. It is for those reasons that I hope that noble Lords will not press the amendment.
I am conscious that I may not have fully responded to the point made by the noble Lord, Lord Thomas of Gresford, on 28th January, at col. 1045 of the Official Report. I want to put that right, and to do so on the record, as I have been asked to do. I am aware that in respect of the transfer of a number of their employees from their present superannuation schemes to the PCSPS, the Greater London Magistrates' Courts Authority faces deficiencies in the relevant pension funds which could be as high as £7 million to £8 million. Scaled up in proportion to the number of employees who could be expected to transfer, that would correspond to a figure not far below £100 million, as the noble Lord observed, although the actual amount would depend on the state of the individual funds concerned. Pending a detailed actuarial evaluation, which is being put in hand, such calculations are entirely speculative.
However, whatever the amount, it is not actually a cost of transfer. The costs of maintaining the present magistrates' courts system include continuing actuarially evaluated payments to meet deficiencies in the local authority pension funds upon which employees of magistrates' courts committees, and those local government employees whose work relates to MCCs, depend for their pension entitlement. Transferring employees may rephase these payments. It will not of itself increase them. These payments are not a result of transfer and in our view should not be regarded as a cost of transfer.
I make this point at some length especially because later, at cols. 1050 and 1053 of the Official Report, the noble Lord seemed to be suggesting a scenario in which, to avoid those costs, the Government avoided transferring many eligible employees to the new executive agency. Not only is that a total misconception—the Government fully expect that the new agency will make the best use of at least the great 167 majority of eligible employees—but it would not even avoid the costs which are effectively a commitment arising out of the present employment of those staff. So we could not do it even if we wanted to. Indeed, the scenario which the noble Lord imagined would result in massive cost increases on account of the high but justifiable redundancy payments that would result.
That in itself should reassure the noble Lord. More importantly—and with respect to him—it should reassure MCC employees and others who depend on MCCs for their employment that they will at all times be treated in an entirely fair and constructive manner which recognises the continuing and enhanced demand for their skills in the new structure that we propose.
I think that I have answered all the points with perhaps one exception—on the pension rights of those who transfer, which was raised by the noble Lord, Lord Goodhart. The terms of the transfer to the PCSPS will be negotiated. We aim to ensure that the transfer terms secure for those who transfer a position that is no less favourable than the current provision. We cannot be fairer than that. We will have secured something very important for those employees by having achieved that.
I apologise for having dealt with the matter at length, but the questions were detailed and important. We want to record our appreciation for the cooperation that we have had from staff so far in the detailed negotiations, and put on record our continuing commitment to those staff for the future and for the new service.
§ Lord Thomas of Gresford
I express my gratitude to the Minister for taking seriously the points that I made on two previous occasions, and for giving such a full explanation. I shall study it with care and take advice on it. I am very grateful to him.
§ Baroness Anelay of St Johns
I am also grateful to the Minister. He was right to pay care and attention to such matters in his answers, as they are complex and affect a huge number of people. The assurances that he gave were important to have on record.
I was grateful that the Minister took care to come back to the issue raised by the noble Lord, Lord Thomas of Gresford. Although on previous occasions I have understood the questions asked by the noble Lord, Lord Thomas, I admit that I am not sure that I have understood the Minister's answer. I certainly need to have a jolly good look at that.
I was grateful to the Minister for his statement on the consultation, for the Government's commitment to that and for the fact that it has already started. We will have to look in more detail at the nature of that consultation, but I felt that he went as far as he could today to satisfy me on those matters.
It was also interesting to hear the list of property given. From what the Minister said, it seems as though one should judge the importance of a Minister by the size of his portfolio. By the sound of it, the noble and 168 learned Lord the Lord Chancellor is trying to give Mr John Prescott a helping hand up the ministerial ladder. How much further has he got to go? Not far, perhaps.
The Minister talks about 10,000 staff perhaps being transferred from the local authorities. I understand his proper remarks about not all of those being wholly employed on related issues. However, from the list of the properties and the numbers of people, we get a picture of the size of the undertaking, which is huge, and of the measure of transfer from local to central, despite the fact that the Government say that the provision is not centralisation.
The physical aspects of the matter are intriguing, and we will return to them in other ways. However, it was most helpful for the Minister to put such matters on record. It will be up to other noble Lords, such as the noble Baroness, Lady Gibson, to see whether his remarks fully meet the questions that they put. I feel that the Minister's response was productive, so I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Gibson of Market Rasen had given notice of her intention to move Amendment No. 32:
Page 56, line 14, leave out paragraph 9 and insert—
9 (1) The Lord Chancellor shall make a scheme (a "staff transfer scheme") for the transfer, immediately before Magistrates' Courts Committees are abolished by section 6, of all eligible employees into employment by the Lord Chancellor.
(2) "Eligible employee" means a person who is employed under a contract of employment—
- (a) by a Magistrates' Courts Committee, or
- (b) by a local authority in that part of the local authority's undertaking which carries out the local authority's functions under section 55 of the Justices of the Peace Act 1997 (c. 25) (duties of local authorities).
(3) All eligible employees shall be treated in the same way as an employee in circumstances where the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794) apply and, for the purposes of this Schedule, the employing Magistrates' Courts Committee or local authority shall be treated as transferor and the Lord Chancellor shall be treated as the transferee.
§ The noble Baroness said: I thank my noble friend for his response to Amendment No. 32, with which we are very pleased. Therefore, I do not intend to move the amendment.
§ [Amendment No. 32 not moved.]
§ [Amendments Nos. 33 and 34 not moved.]
§ Schedule 1 agreed to.
§ Clause 7 agreed to.
§ 7.15 p.m.
§ Clause 8 [Local justice areas]:
Baroness Seccombe moved Amendment No. 35:
Page 4, line 11, at beginning insert "Subject to subsection (2A),
§ The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 36. The amendments would insert a new subsection. We have heard much about the new justice areas, which the Lord Chancellor will make by order and has the 169 power to amend by order. We seek an answer to the questions of how many local justice areas there should be and how their boundaries should be determined.
§ My noble friend Lord Dixon-Smith debated the principles underlying the amendments on Amendment No. 17, which covered the number and boundaries of CACs. One would anticipate that the boundaries of CACs and local justice areas would be coterminous in themselves, but that is not clear in the Bill. It is therefore important that we debate the amendments.
§ Amendment No. 35 is a paving amendment for Amendment No. 36. It provides that the areas into which the country is to be divided by the Lord Chancellor to become local justice areas shall be determined in accordance with our new subsection (2A). Amendment No. 36 inserts that new subsection. It is the crucial amendment, specifying that the local justice areas should be coterminous with the police and CPS areas. I cannot understand why the Lord Chancellor would wish to set the boundaries in any other way. What other factors that he would wish to take into account are so important that they 'would cause him to set the boundaries so that they were not coterminous with the police areas?
§ It would seem hard to deliver local justice if the local justice areas were fewer in number. Therefore, we believe that ensuring that their boundaries are coterminous with areas established for the police and CPS would not only make sure that there were enough areas to make them local, but harmonise the whole criminal justice system—something that the Lord Chancellor purportedly seeks to do with the Bill.
§ We are flexible, however. We ensure that the boundaries of the local justice areas can change if those of the police change in future. They would thereby remain coterminous. Our drafting is not draconian. It does not say that the Lord Chancellor must set the local justice areas so that they are coterminous with the police areas, only that he must have regard to the desirability of making them coterminous. If he decides to set the boundaries differently, he could be held to account and asked to give his reasons.
§ The Minister will have read the briefing from the Magistrates' Association, the Central Council of Magistrates' Courts Committees and the Association of Justices' Chief Executives, which all support the objective of the amendments. As the Bar Council so rightly said, the areas under Clause 8(2) should be defined now, as Clause 8(4) allows the Lord Chancellor carte blanche to do what he pleases at a later stage. In theory, we could end up with only one "local" justice area serving the whole country. I beg to move.
I hope that the Government welcome the amendment, because it would prevent administrative confusion by making the police and crown prosecution areas coterminous with what is 170 proposed in the Bill. I hope that the noble Baroness or the noble Lord, Lord Bassam, will feel it worth considering seriously.
§ Lord Jones
Following the remarks of the noble Baroness, Lady Seccombe, the proposal to create a local justice area in place of commission areas and petty sessions might lead to substantial erosion, or even destruction, of the local infrastructures that are the core and strength of the system of justice in the localities. The magistrates and those who support them believe that local justice areas must remain local, and I am sure that the House would not want to have only one local area, which is possible in theory.
Current and past court closures and amalgamations are already putting a strain on the magistrates' courts system and, arguably, undermining local justice. With those basic thoughts in mind, I shall resume my seat. But I hope that Her Majesty's Government will listen to the succinct case made by the noble Baroness, Lady Seccombe.
§ Viscount Tenby
I cannot conceive that the Government would have any objection to Amendment No. 36, which seeks to make local justice areas coterminous with police and Crown Prosecution Service areas, in particular. Surely that is what it is all about. It is all about joined-up government, unification and getting things on the road and about trying to get rid of all the disparity which has existed up until now and with which we have limped along. Therefore, I join my puny voice in support of the amendments and shall be interested to hear the Minister's reply.
§ Lord Waddington
I want to point out that the terminology in the Bill is somewhat confusing. We are told that England and Wales are to be divided up into areas, for each of which there is to be a court administration council. The document of 4th December tells us that these are local areas and that each local area is to be managed by an agency chief officer. Yet, in Clause 8 we have local justice areas, which are not the same thing at all. It is merely a new name for petty sessions areas.
The Government seem to use the word "local" in connection with court administration councils simply because they feel that that has the right ring to it. However, it does not appear that they will be local at all. They certainly will not be local in the sense that these bodies will be local. Therefore, I wonder whether the Government have been wise in their choice of a new title for the petty sessions areas.
However, when we come to the substance of the amendment, I need say only that I agree entirely with what has already been said. My understanding is that the local justice areas will initially cover the same areas as the petty sessions areas. It will be very wrong if they become much bigger and cease to be local.
§ Lord Dixon-Smith
The principle enunciated in the amendments is impeccable, but I must admit that I am now slightly confused as to which area we are talking 171 about. I had thought that, taking into account the original purpose of the court administration councils and the areas which they were to serve, they would be matched far more appropriately to the police authority areas and that the local justice areas would be rather smaller. In fact, a court administration council would cover a number of local justice areas. I may have gained the wrong impression.
The current organisation of the magistracy includes a local Bench area and a county area, which is a police authority area, and those provide a kind of federal arrangement. It is an arrangement which has worked very well in the past. I envisaged that that was the type of arrangement that the Government had in mind. I may have been wrong.
However, if a local justice area is the same as a court administration area, then, in my view, one or the other is unnecessary. It would imply that the court administration council areas were much bigger. I believe that that would be unfortunate. I am sure that, when the Minister comes to reply, he will at least satisfy me as to the exact distinction between the two types of area, both of which at present are causing a certain amount of confusion in my mind.
§ Lord Bassam of Brighton
I shall try to bring some clarity where there appears to be confusion, but I do not promise that I shall get it absolutely right. A substantive amendment has been proposed by the noble Baroness, Lady Seccombe. The effect of the amendment would be to make it clear that, when specifying local justice area boundaries, the Lord Chancellor will have regard to the desirability of ensuring that those areas are coterminous with the 42 criminal justice areas. I am grateful to the noble Baroness for raising this important issue.
At present, magistrates are appointed to a particular commission area on the basis of where they reside. Most summary offences must be tried in the commission area where the alleged offence took place. That is the basis on which magistrates are appointed. At present, commission areas are divided into one or more petty sessions areas—areas to which magistrates are assigned by the Lord Chancellor. As a consequence of the provisions in the Bill, we are abolishing commission areas from statute and—the noble Lord, Lord Waddington, was right—replacing petty sessions areas with local justice areas. We shall introduce a transitional provision confirming that local justice area boundaries will be the same as those of petty sessions areas on commencement. The amendment seems to assume, incorrectly, that local justice areas are replacing commission areas.
If, as the amendment suggests, all local justice areas were to be truly coterminous with the criminal justice areas, there would be only 42 local justice areas in England and Wales. That would mean that, instead of 275, there would be only 42 Benches in England and Wales. We suggest that Benches of that size would be impractical and could erode the important close local links that currently exist between magistrates and their local communities. In earlier debates, many Members 172 of the Committee argued vociferously for those links. It is clear that such an amendment would have a detrimental effect on the Government's commitment to local justice.
It may be the intention of the amendment that the boundaries of each local justice area should fall entirely within one of the 42 criminal justice system areas so that no local justice area would straddle more than one criminal justice system area. That is the current position with regard to petty sessions area boundaries and, initially, will also be the case in relation to local justice area boundaries. We expect that, in future, local justice area boundaries will remain within those of the criminal justice system areas. However—this is the important qualification—we would not want to commit to ensuring that on the face of the Bill, although I can understand why many Members of the Committee might want to oblige us to do so.
I caution the Committee that it is important to remember, for example, that magistrates' courts also hear civil and family cases and not simply criminal ones. Therefore, the organisation of local justice areas is not solely reliant on the needs of the police and the Crown Prosecution Service.
We understand the spirit and thinking behind the amendment but believe that it is unnecessary. We may require some flexibility. I take the noble Baroness's point that some flexibility was built into the amendment, but we consider it to be unnecessary. However, clearly we see coterminosity as desirable for local justice areas.
§ Baroness Seccombe
I thank the Minister for that rather complicated response. I am sure he will accept that I shall need to read it carefully to ensure that I have understood it completely. I am grateful to Members of the Committee who—like me, I believe— have found it difficult to understand what is meant by "local". As a magistrate, I feel that being local is very important. We ask people to sit on Benches and to operate within a certain local area—by that, one means within a comparatively few miles. If we expect people to travel a long distance, we shall limit the number of people available to sit as magistrates. Therefore, I believe that the debate on the word "local" is important.
I am grateful to everyone who has spoken in the debate. I shall read it carefully and see where we go from here. However, at this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 36 not moved.]
§ Lord Bassam of Brighton
This may be a convenient moment to take a break in the Committee's proceedings until 8.30 p.m. I beg to move that the House do now resume.
§ House resumed.
§ [The Sitting was suspended from 7.30 to 8.30 p.m.]