HL Deb 04 February 2003 vol 644 cc173-94

House again in Committee on Clause 8.

The Deputy Chairman of Committees (Lord Skelmersdale)

My Lords I have to inform the House that in Divisions 3, 4, 5 and 6 this afternoon, the numbers voting Not-content should have been recorded as follows: in Division 3, 375; Division 4, 338; Division 5, 358; and Division 6, 317. In all cases that is one less than stated on the annunciator.

Baroness Seccombe moved Amendment No. 37: Page 4, line 19, at end insert— ( ) In making an order under subsection (2) or (4), the Lord Chancellor shall—

  1. (a) make provision for the continuation of the employment of those justices' clerks who are currently employed, without imposing any requirement for a process of reappointment; and
  2. (b) have regard to the importance of retaining a link between existing benches of justices and their justices' clerk."

The noble Baroness said: This amendment seeks to ensure that if the Lord Chancellor exercises his power under subsection (4) of this clause and alters local petty sessions areas, that will not necessitate the reappointment of existing clerks. Not only would that be a time-consuming and potentially costly exercise; it would also affect the stability of the justices' clerks' employment.

The amendment seeks to meet some of the concerns expressed by the Justices' Clerks' Society in its response to the White Paper and the draft Bill. It is of the view that it is essential that we retain a link between a geographical group of justices, currently called a Bench, and their clerk. Can the Minister give assurances on that matter?

I was concerned to read the letter by the noble Baroness, Lady Scotland, of 23rd December, which discussed the area to which justices' clerks will be appointed and which stated: Whilst there will be no statutory link between justices' clerks and local justice areas, we fully expect that clerks will continue to be assigned to local areas".

That expectation would be abandoned at any stage if the Government so wished.

As I pointed out at Second Reading, at col. 21 of Hansard, in my view it is essential for justices to have a good working relationship with their clerk. That belief has been wholeheartedly backed by the Central Council of Magistrates' Courts Committees. It is a relationship of neutral trust and respect that can be cultivated only over a period of time. It would be a great loss to the system to disregard the importance of a sustained relationship and most disruptive to the smooth running of the court. I beg to move.

Lord Bassam of Brighton

The noble Baroness" Lady Seccombe, has eloquently explained the purpose of her amendment. We believe that this is extremely important. We are grateful to her for raising these issues.

At present, justices' clerks are appointed by the magistrates' courts committee to a particular petty sessions area or areas. If the boundaries of such an area are to be altered and the justices' clerk for that area is to remain in post, he or she has to be reappointed. Under measures in the Bill, justices' clerks will no longer be appointed to a particular area. That means that when the Lord Chancellor makes an order, either setting up or changing the boundaries of local justice areas, it will not be necessary to reappoint justices' clerks.

However, the Lord Chancellor must have regard to the importance of retaining a link between existing Benches of justices and their clerks. In practice—and I think this will reassure the noble Baroness—we fully expect and desire that justices' clerks will still be assigned to local areas, although that will happen outside statute. That change will provide more flexibility in the deployment of clerks than there is under current arrangements. It will also give justices' clerks the opportunity to work in the headquarters of the new agency or, if appropriate, in the Lord Chancellor's Department more generally.

I should stress to the House that there is no intention that the Lord Chancellor will, by whim or any other motive, simply move justices' clerks from one area to another. I made it plain earlier that it is our intention that the boundaries of local justice areas will initially stay the same as the petty sessional areas and that the strong links between magistrates and their Benches will also remain. That is part of the equation.

I give the noble Baroness the assurance that magistrates will continue to be consulted about decisions that affect them, including the assignment of a justices' clerk for their area, although, as I said earlier, that will happen outside the remit of the statute.

So deployment is not expected as a matter of routine. Behind the amendment is the thought that justices' clerks will be redeployed other than they currently are. There may be occasions when, for personal or perhaps because of court business needs, they will need to be moved around. Therefore, in essence, we want to ensure that the current arrangements work in the future and it is our intention to ensure that we have some flexibility, but the Committee can be assured that we shall carefully consult those who are affected by any Future redeployments.

Viscount Tenby

Before the noble Lord sits down, I may be easily pleased, but I am very relieved by what he has just said. It gives some degree of comfort to those who were worried about the issue.

This is slightly wide of the amendment, but in talking about this critical area of justices' clerks, the people who seem to have been forgotten are the justices' chief executives who must have some fears about their own position in the new set-up. Clearly, it cannot appear on the face of a Bill, but can some comfort be given to me on the subject?

Lord Bassam of Brighton

The chief executives will see this important issue as an act of effective management. We have carefully consulted with them. They are very supportive of what we are putting in place. As the noble Viscount, Lord Tenby, said, this issue is wide of the mark, but they are happy with what we seek to achieve. I think they see it as an essential part of good management and practice.

Viscount Tenby

I am very grateful to the Minister for responding. I understand that one way this issue could be cemented is for the chief executives to be transferred to the Lord Chancellor's Department. At the moment they are employed by the magistrates' courts committees. But it may be that this issue is wide of the mark and I thank the Minister for his answer.

Lord Bassam of Brighton

It goes without saying that all those issues will need to be thought through. More consultation or discussion will resolve any outstanding matters of concern. Our intention is to conduct those consultations properly.

We shall ensure that we have experienced local managers in place in the new courts agencies. Although the role of the chief executive will move on from the current position, obviously that role will be an important element in the new structure.

Lord Waddington

I confess that I am slightly confused. Paragraph 75 of the Explanatory Notes states: The appointment of justices' clerks is no longer to be limited to petty sessions areas. As justices' clerks are to become civil servants, it is not considered appropriate for justices of the peace to be consulted on the appointment or removal of a justices' clerk". Is the noble Lord saying that the clerks are to be consulted, or are they not? It is important to maintain the link between justices and the clerks with whom they work.

Lord Bassam of Brighton

I believe that I made it plain in my earlier comments that we do not seek a statutory obligation, rather that discussion and consultation must take place. That goes without saying.

Lord Waddington

Surely that is the opposite of what is set out in the Explanatory Notes. It states in plain language that, it is not considered appropriate for justices of the peace to be consulted".

Lord Bassam of Brighton

I shall be happy to take away the point that is causing confusion here. The Explanatory Notes make clear what is on the face of the Bill, but outside that we intend to ensure that proper consultation takes place. That is what I now seek to make clear to Members of the Committee.

The notes are not wrong; they describe what is set out in the Bill. However, as I believe I made plain earlier, we intend to ensure that the maximum consultation and discussion of these matters takes place so that we can put smoothly into place the new service. It is clear that consultation will play a key part in that process and we have always intended for that to be the case. However, we do not require that to be written into the legislation.

Lord Thomas of Gresford

Can the Minister confirm that a justices' clerk, although appointed by the Lord Chancellor and not by magistrates' courts committees, and subject to the provisions currently being discussed, will nevertheless be a judicial officer who will at all times maintain judicial or quasi-judicial independence and thus will be able to advise the magistrates as he or she thinks best?

Lord Bassam of Brighton

Of course. It goes without saying that that is the role and function of a justices' clerk. The legislation will not change that relationship. Our debate concerns something else, but I wish to give the noble Lord the comfort that we have sought to explain with care that judicial independence is extremely important.

Baroness Seccombe

I am grateful to the Minister for trying to give comfort, but I do not think that much comfort will be derived from the fact that, at this stage, the matter does not appear to have been well thought through.

Lord Bassam of Brighton

I hope that I have provided some comfort. Perhaps I may put a specific question to the noble Baroness. What is it that particularly concerns her? I shall be happy to try to address any precise points that I may have missed.

Lord Jones

Not that much further down the Marshalled List we shall come to another tranche of amendments which may provide an opportunity for my noble friend on the Front Bench to come back with his usual forensic skill and outline precisely what the situation is.

Baroness Seccombe

While I had the privilege of serving as a chairman of the Bench for three years, we appointed a new clerk to serve our area. We built up a special relationship with that clerk and I worked very closely with him. What concerns us at present is how we are to ensure that that special relationship between clerk and magistrates continues when we are unsure how the proposals and the consultation will work.

8.45 p.m.

Lord Bassam of Brighton

In the main, the noble Baroness can take comfort from this. We are talking about the quality of the local relationship. Like her, I have many friends who are magistrates; I would even admit to knowing a few clerks. The quality of the relationship will continue. She is right to probe us on this issue; I have made that plain.

However, there will need to be a change in the organisation's culture and, as I said earlier, flexibility from time to time. Essentially, that is what we are trying to secure and preserve. Like the noble Baroness, we share the objective of ensuring that that closeness of relationship and rapport continues in the new and— we hope and expect—improved service.

Baroness Seccombe

I should hate the Minister to think that I just want to hark back to the past, because that is not true. I think that we understand each other and where we stand on the importance of the relationship between magistrates and their clerks. We shall consult the Justices' Clerks' Society, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seccombe moved Amendment No. 38: Page 4, line 27, at end insert— (d) such other persons as appear to him to be appropriate

The noble Baroness said: The Bill allows the Lord Chancellor to make an order to alter a local justice area in accordance with Clause 8(4), after he has consulted the justices of the peace assigned to the local justice area, the CACs and local authorities.

The amendment probes what form the consultation will take. Does the Lord Chancellor have to listen to the recommendations made by those groups? What will happen if those interested parties disagree with each other—or unanimously agree, but disagree with the Lord Chancellor? The amendment would add to the burden but also to the flexibility of the consultation process by requiring the Lord Chancellor to consult anyone else whom he may consider appropriate.

Does the Lord Chancellor think that other groups should be asked their opinion? For example, perhaps the Magistrates' Association should be consulted. What about Victim Support, citizens' advice bureaux, the Women's Royal Voluntary Service, or other, similar, groups? All of those groups have first-hand knowledge of the experience of court users, but may not be members of the CACs. I look forward to hearing the Minister's answers to those questions. I beg to move.

Lord Bassam of Brighton

This is a simple and well-intentioned amendment. We intend to ensure that the Lord Chancellor consults widely and as seems appropriate. I shall not rule in or out particular organisations from the consultation process. The noble Baroness identified the Magistrates' Association and the citizens' advice bureaux. She might have added the local law centre, if there is one, the local authority or other organisations, such as women's centres, refuges for battered wives, and so on. At some point, it may be appropriate to consult all of those organisations.

That is why subsection (6) sets out in terms the people whom the Lord Chancellor must consult—in particular, the relevant court administration council. But if the Lord Chancellor believes it to be in the interest of the service to consult more widely, I am sure that he will want to do so. We want to draw wisdom from wherever we can. That is sensible.

So the spirit behind the amendment is fine; it is not necessary to write it into the Bill. For those reasons, I hope that she will feel confident that she can withdraw it, given that we are with her in spirit.

Baroness Seccombe

Having listened to the Minister's view of all the different bodies that may be consulted, I feel much comforted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to. Clause 9 agreed to.

Clause 10 [Appointment of lay justices etc.]:

Baroness Seccombe moved Amendment No. 39: Page 5, line 3, at end insert (1A) The Lord Chancellor shall appoint such a number of lay justices as appears to him to be appropriate for the purpose of discharging the work of the magistrates' courts. (1B) To assist him in discharging his duties under subsections (1) and (1B), the Lord Chancellor shall publish within six months of Royal Assent a national recruitment strategy for the recruitment of lay justices.

The noble Baroness said: I shall speak also to Amendment No. 41. Over the past few years, there has been much discussion about the role of lay justices. I welcome the commitment of the noble and learned Lord the Lord Chancellor to the retention of the lay magistracy.

The first part of Amendment No. 39 seeks to gain clarification from the Government of the intended role of lay magistrates as distinct from district judges. What percentage of the magistrates' court load does the noble and learned Lord the Lord Chancellor anticipate should be carried by lay magistrates; or does that percentage differ according to whether the courts sit in metropolitan or other areas? What research has he undertaken to predict the number of lay and employed magistrates that will be needed over the next 10 years? We understand that he has commissioned a national strategy for the recruitment of magistrates. What stage has that work reached? When will the results be published?

The second part of the amendment would require the Lord Chancellor to publish a national recruitment strategy within six months of the Bill receiving Royal Assent. I hope that the strategy will be published long before then. It is vital that there are sufficient lay magistrates throughout England and Wales, and that those magistrates truly reflect the communities that they serve. Although we on these Benches recognise that there is clear merit in giving magistrates a nationwide jurisdiction and having a national recruitment strategy, we firmly believe that magistrates must continue to reflect the local communities that they serve. A fundamental strength of the lay magistracy is its strong association with local communities. We are worried that there is a danger of local justice being diminished if magistrates are appointed through recruitment or transfer in a way that dilutes the links with local communities. I hope that the Minister will now be able to clarify the position and assure us that he will publish his recruitment strategy within the time limit set out in the amendment.

Amendment No. 41 would require the Lord Chancellor to produce an annual report setting out the optimum number of lay magistrates for each local justice area. That could then be used to track the success of the national recruitment strategy and to assist in its development as may prove necessary, as the demographic profile of each area may change over time. I am concerned that in the present climate it may become more difficult to attract volunteers to the magistracy. Employers, particularly small companies, are under pressure and find it difficult to release people for 26 half-days a year. Employees can suffer from loss of promotion, pension provision difficulties and, in some cases, outright denial of the opportunity to serve. It must be in all our interests to encourage employers and employees that serving as a magistrate is a useful and important voluntary community service. It would be a sad day if volunteers could be attracted only from the public sector or from those not employed. I beg to move.

Lord Borrie

I commend the noble Baroness, Lady Seccombe, for the speech that she has just made. The noble Baroness raised several important points about recruitment policy in the Lord Chancellor's Department with regard to the appointment of magistrates throughout the country. She also raised important points about the need to stress—to employers, in particular—the value to the community of magistrates' service. In all parts of the House, we value that service and wish to encourage and promote it into the more distant future.

The Committee is now coming to the discussion of a series of clauses dealing with the appointment and work of lay magistrates and of district judges. It would be interesting to know whether the Lord Chancellor's Department has a view on whether, over the next few years at any rate, there should be a further increase in the number of professional judges—district judges— such as there has been over the past 20 or 30 years. Or have we reached a point of balance that may survive and continue for some time?

I apologise for raising a matter that is slightly beyond the terms of this useful amendment, but, at Second Reading, I asked a question to which I did not get an answer, despite the otherwise comprehensive and lengthy responses made by my noble friend the Minister to so many questions. I did not get an answer to my query about whether there was value in having a district judge—a professional judge—sitting with, say, two lay magistrates on certain types of case, which, because of their complexity or seriousness, might justify such a combination. That would be distinct from the present position, in which, in magistrates' courts, there is either a lay magistrate or a district judge, not both.

Lord Waddington

Perhaps I may be excused for taking the opportunity offered by the amendment to raise the fact that Clause 10 means that responsibility for the appointment of magistrates in Lancashire, Greater Manchester and Merseyside will be transferred from the Chancellor of the Duchy of Lancaster to the Lord Chancellor. It may be worth reminding the Committee that, as recently as 2000, there was wide consultation as to whether the proposal should go forward. I have every reason to believe that the result of that process was that virtually nobody wanted any change. Yet, the Bill takes the opportunity to thrust aside all the recommendations that were made to the Government at that time. Once again, in the interests of dull uniformity, a historic system of appointment is to be done away with.

Chancellors of the Duchy have made the appointments since the 14th century. I should like to know what great public mischief is perpetrated by that system. There is none. Everybody agrees that magistrates must be appointed so that they reflect the community in which they serve, and nobody sensibly suggests that the Chancellor of the Duchy of Lancaster will fail in his or her duty to follow any guidelines laid down by the Lord Chancellor. However, it seems like another example of the Government's obsession for centralising responsibility in the hands of the Lord Chancellor. Coming from the county palatine, I resent greatly the taking of that step, particularly as an attempt to railroad through Parliament a decision of the Government that got an almost unanimous thumbs-down when the matter went out to consultation a few years ago. I am horrified.

9 p.m.

The Earl of Sandwich

I am grateful to the noble Baroness, Lady Seccombe, for tabling this amendment. It gives me an opportunity to say something about Dorset and to register a concern there about the loss of local knowledge. I believe this concern is shared by many people in more remote areas where court houses have been steadily closing. I apologise if I am repeating concerns already made.

The concern is that with modernisation and efficiency—something which we all generally welcome—often comes a desire for administrative neatness, a disregard for detail and, worse still, a degree of intolerance or ignorance of the complex lives of individuals and families, especially those families living on the margin in rural areas. That concern is well summarised by an experienced magistrate in Dorset, who is a neighbour of mine. He states: It sometimes seems to me that the law makers fail to understand how minimal and marginal some people's lives are. What we must have in any Court organization is the ability for the local, especially rural, realities to be fully understood and for mechanisms and systems to be there to make sure that fully informed decisions can be justly made. This is where I fear that central control is unlikely to serve the community adequately unless very clear thinking constructs the ability for all sections of the community to be properly represented". Adequate representation is always hard to achieve, but there is no substitute for local knowledge by local people. The more we retain lay magistrates who have this knowledge, the better it will be for local people. The Magistrates' Association has made this point powerfully—so have many others in this debate. I understand what the Minister said previously about the shared intent. However, it is a concern better understood by the judiciary, who have underlined the importance of lay magistrates, than it is by the Government and those who drafted the Bill and the somewhat inadequate Explanatory Notes.

Lord Jones

As regards Amendment No. 39, very succinctly moved by the noble Baroness, Lady Seccombe, I want first to emphasise that lay magistrates are volunteers. They work very hard; they give up a great deal of their time; and they work without payment. What are the Government doing to recruit younger magistrates—both male and female?

Looking at the pattern of crime—we all know what it is—it would seem to be relevant to have more younger magistrates who might, with some reason, be able to understand why so many 18 to 24 year-old men and women go hopelessly off the rails and find themselves in the courts. I emphasise the comments about employers made by the noble Baroness, Lady Seccombe. She said that the small employers find it difficult to release employees to carry out their duties as magistrates and I know magistrates who support that view. They also tell me that it is becoming increasingly difficult to obtain time off for such duties from larger employers. That is now having a bearing on the recruitment of magistrates. Do the Government have any plans or policies and are they engaging in any pilot schemes?

I, too, want to refer to district judges. The Minister acknowledged that magistrates should be consulted before a district judge is appointed or assigned to a local area. Perhaps my noble friend will undertake to redouble the efforts currently under way to recruit more lay justices before going nap on the wholesale appointment of district judges. If the recruitment of lay justices were given higher priority by those involved, if the determination of the authorities were to attract and recruit more men and women to the Bench, the need to recruit many district judges would be less obvious. If that were the case, the numerous hard-working magistrates would feel that they had a better chance as the changes of the Bill are implemented.

Lord Dixon-Smith

I am prompted to rise by the remarks of my noble friend Lord Waddington relating to the Duchy of Lancaster. If I understand his remarks correctly, a recent consultation document shows that the local view is clearly for the situation to remain as it is. However, the provisions of the Bill change that and disregard the local view.

The issue is fundamental. So often we have heard from the Government Benches that these matters are still subject to consultation and that they have not been decided. They say that until the consultation is complete they are not prepared to take a decision. However, in this instance the consultation is complete and the view of the local people who were interested in the matter has been wholly disregarded. What faith can we then have in the rest of the consultation process?

Baroness Scotland of Asthal

I shall deal first with the last point, which was raised by the noble Lord, Lord Waddington. We wrote in January, and placed a copy in the Library of the House, to say that we fully consulted the Duchy of Lancaster and are not aware of any disagreement between the Duchy and ourselves in relation to the proposals that we—

Lord Waddington

I thank the noble Baroness for giving way. With respect, history has gone on. The consultation exercise was launched in January 2000. I received a letter from the then Chancellor of the Duchy of Lancaster in 2001 stating that a consultation exercise had taken place and as a result of the replies he was not going ahead with the proposal. I do not know what has happened since, but the noble Baroness knows perfectly well that what is in the Bill is contrary to the results of the consultation which took place in 2000 to 2001.

Baroness Scotland of Asthal

Of course I hear what the noble Lord says with such passion. However, as he will know, consultation in relation to what should happen as a result of the process of unification has been taking place throughout the period. The recommendations made by Lord Justice Auld have been fully considered and we consulted on the form that a unified procedure should take. I can reassure Members of the Committee that we have fully consulted with the Duchy of Lancaster.

In addition, Members of the Committee will know from what I said earlier that in the sequence of visits which we make around the country, all those who are currently the responsibility of the Duchy of Lancaster will have an opportunity to make known how they wish the arrangements in their area to be managed. I shall of course ask for further and better particulars on the matter in the hope that I shall be able to satisfy the noble Lord more fully. I was not aware that there was any difficulty on it between ourselves and the Duchy of Lancaster. If I am proved wrong, I shall of course write to Members of the Committee.

Lord Renton

What the noble Baroness has said is most interesting, but surely the situation she has described should be expressed in the Bill.

Baroness Scotland of Asthal

The situation is expressed in the Bill. We are seeking a national unified administration in which one department will be responsible as opposed to two, and in which the responsibility will be discharged in a more holistic way. I emphasise that word, to the delight of the noble Lord, Lord Thomas of Gresford, who I know is charmed by it.

Lord Waddington

Will the Minister try to understand my resentment? In the Explanatory Notes to Clause 10, almost as a throwaway line at the end, paragraph 51 states: A further effect of the repeal of the JPA 1997, and the provision of this clause, is to transfer the current responsibilities of the Chancellor of the Duchy of Lancaster, in respect of the appointment of magistrates within the Duchy, to the Lord Chancellor". There is nothing about that on the face of the Bill. No one but a very assiduous reader of the Explanatory Notes would have known that this opportunity was being taken to reverse the results of a consultation exercise which took place less than two years ago.

Baroness Scotland of Asthal

I hear what the noble Lord says. I reiterate what I said earlier: that the consultation which has gone on since then has been within the context of the proposed strategy to unify all courts.

The repeal of the 1997 Act—

Baroness Seccombe

Who was consulted and when? What were the results of that consultation?

Baroness Scotland of Asthal

I shall be happy to make the necessary inquiries. The information I have is that the Duchy was consulted and is content. As I said to the noble Lord, Lord Waddingtonߞ

Baroness Seccombe

Who was consulted?

Baroness Scotland of Asthal

I have said what I have said. As I have reiterated to the noble Lord, Lord Waddington, I shall certainly make further inquiries and seek to give the Committee further and better details of the nature and extent of the consultation and the precise information we have received as a result. To the best of my knowledge and belief, this was not a matter of concern before it was raised by the noble Lord, Lord Waddington. I have said that I will write to noble Lords, and I will.

I give way because I notice that the noble Baroness and the noble Lord are consulting.

Lord Waddington

I have been prompted that apparently my noble friend Lord Hunt of Wirral raised this matter on Second Reading. I am therefore surprised that the Minister is not aware of the great concern about it.

9.15 p.m.

Baroness Scotland of Asthal

The noble and learned Lord the Lord Chancellor wrote to the Duchy of Lancaster specifically on this point. I have said that I will take the issue away with me and try to provide the noble Lord with further and better particulars. There was consultation within government, including with the Duchy, in relation to a unified court structure.

Let me say straightaway that I accept the way in which the amendment has been brought forward. The noble Baroness, Lady Seccombe, said that it was a probing amendment designed to secure further and better information. I hope I shall be able to provide her with that today.

I should say to the noble Earl, Lord Sandwich, that we understand the necessity to ensure that the delivery of the service remains local and that local magistrates continue to have a close connection with the areas in which they serve. All those issues are taken on board and are well said, if I may respectfully say so.

The current position is that about 95.5 per cent of all criminal work is dealt with by magistrates. At the moment, there are 95 district judges. It is anticipated that that figure will rise to 130; that is what has been settled. But it is possible that the figure may rise to 160 if workloads look likely to require such an improvement. At present, there are 29,000 lay magistrates; we anticipate that an extra 3,000 may be needed over the next three years. So we do not see a change occurring in the balance between district judges and magistrates.

The noble Baronesses, Lady Seccombe and Lady Anelay, say that the Lord Chancellor has shown great commitment to lay magistrates. That commitment is unswerving. We value the lay magistrates; we think they do an incredibly useful job. They are the biggest volunteer group we have, and we treasure them. I cannot say enough about their virtues and the fact that we do not wish to see their demise.

We are hopeful that the strategy will be published early this year, certainly within the six-month period that the noble Lady, Lady Seccombe, suggested. I shall say a little of the work that we have done on the strategy and seek to answer some of the questions asked by my noble friend Lord Jones about its ambit. There has been concern about the pressures put on magistrates as a result of the workload. Ministers are considering the draft strategy and discussions are taking place to procure full funding for the project. Once resources are available, the strategy will be published.

We acknowledge that employed magistrates face certain problems undertaking their duties. We intend to explore methods for dealing with those issues within the strategy framework. We will also target employers and try to persuade them of the benefits of employing magistrates.

The strategy's aim is to encourage applications from as wide a cross-section of the community as possible. It will build upon the encouraging recruitment trends that have emerged over recent years. In 2000–01, for example, the proportion of new appointments drawn from ethnic minority communities rose to 9.3 per cent from 8.6 per cent the year before. The figure was 6.5 per cent in 1997 and only 5 per cent in 1994. So we are addressing recruitment issues.

The national recruitment strategy will complement two other important initiatives aimed at promoting the lay magistracy and broadening the pool from which it is drawn. The Judiciary for All scheme and the mock trial competition are both very important in this regard. Judiciary for All aims to encourage more people from ethnic minority groups to apply to become magistrates. The project has now been piloted in seven areas, with 47 individuals shadowing 94 magistrates. It has been very well received and is proving successful. I take this opportunity to compliment not only the 47 individuals who participated but, very importantly, the 94 magistrates who gave up their time to participate.

While the shadowing scheme is aimed at the over-25s, the mock trial competition is raising the profile of the magistracy among secondary school students. Run by the Citizenship Foundation, with the support of the Lord Chancellor's Department, the competition has been designed to fit in with the new national curriculum subject of citizenship studies. This year, 350 schools entered the competition, giving 4,500 students a taste of life in the judicial system and a sense of the contribution magistrates make to their local communities. The strategy will also explore further ideas for promoting the magistracy. All that work is being undertaken by volunteers in the magistrates' courts. We welcome it and believe that we are getting good results from it.

I refer to the point raised by my noble friend Lord Borrie. I apologise for not responding to it properly. I shall endeavour to do so. I shall write to my noble friend in response to his interesting idea about magistrates sitting with district judges.

We intend to make an assessment of the workload, try to predict better what will be needed as a result of the criminal justice reform programme and respond with a proper strategy. Throughout that process we shall continue to consult all the relevant agencies and individuals. I refrain from referring to stakeholders in case I excite further attention.

Lord Donaldson of Lymington

Of course, I agree with everything that has been said about the importance of the lay magistracy, especially as regards attracting members of ethnic minorities to serve on it. But we need to remember that there is an inherent problem with the lay magistracy in that its members cannot sit continuously for more than a limited period. Certainly half days would be highly inefficient. We shall always need district judges to deal with carryover lists. I refer also to cases that do not last more than a day. Nevertheless, if a case is begun late in the afternoon there are great advantages in being able to continue it the next day. One may not be able to do that with members of the lay magistracy for the reason that I have already mentioned.

It is not right just to look at the caseload; one must look at the nature of that caseload. There is a further problem here. If magistrates are to be confined to short cases, due to the amount of time that they are able to allocate to cases, they may encounter the experience that my wife had in moving from Bow Street, which she found an extremely interesting Bench—as I am sure it is—to the City of London Bench, which involved giving notices to motorists asking them to explain why they had not said who was the owner of the vehicle in question. That is enough to drive anyone to drink, or at any rate to resign from the Bench. One must look at the quality of the case which can be given to the lay magistrate and try to make it as interesting as possible.

Lord Thomas of Gresford

I resist the temptation to point out that the Greek word holistikos is used as a euphemism by this Government for the more easily understood latinate "centralising". Without wishing to get involved in the affairs of the Duchy of Lancaster, what is the role envisaged for the current local advisory committees which assist the Lord Chancellor in the appointment of magistrates? Will they continue as before? There is nothing in the Bill about them. Do we assume that they will continue to fulfil their role? If so, who will appoint them? What powers will they have?

Baroness Scotland of Asthal

I reassure the noble Lord that that issue will not be on the face of the Bill. There is nothing on the face of any Bill at the moment in relation to the advisory committees. The Lord Chancellor will continue to need the advice and support of those who advise him in relation to the appointments that the noble Lord, Lord Thomas, mentioned. Those advisory groups may be restructured but certainly the need to have some form of advisory committee will remain. I cannot tell the noble Lord exactly what form it will take. I hope that we shall be able to consider some of that detail in due course when we consider the structure of the guidance and the framework document.

Lord Jones

I was glad to hear the Minister's response to some of the questions that I posed. She gave a handsome reply for which I thank her. I believe that she referred to the strategy with regard to the 29,000 magistrates in England and Wales and mentioned a likely increase of some 3,000. I know that the Minister is up to speed on matters concerning Wales, because I heard her say in a previous debate to the noble Lord, Lord Thomas, that she would not cede one inch. Will she say how many of the 3,000 will be itemised for Wales over a period of years? How many extra magistrates are envisaged for Wales?

Baroness Scotland of Asthal

I cannot say how many are specifically targeted for Wales, just as I cannot say how many will go to the South West, the North East, and so on. However, the overall figure is likely to increase as the needs increase. We must make an assessment of the needs.

The noble and learned Lord, Lord Donaldson, made some valuable points about quality, nature and balance. All those issues will have to be put into the pot when we decide what the balance should be in any given area. I endorse the point that members of the judiciary, whether they be lay or professional, should have interesting and challenging work to which they can become committed. That is certainly part of the thinking that we will build into any plans that we make, whether for the professional judiciary, with which the noble and learned Lord is especially familiar, or the lay magistracy. Both are equally valuable.

Viscount Tenby

I shall be brief, as it is late. I wish to pick up the ball that the noble Lord, Lord Thomas of Gresford, punted so expertly up the hill, in relation to advisory committees. Is it not the case that a problem with such committees for as long as anyone can remember is that all their activities are conducted with a nod and a wink? Nobody knows who they are or what their terms of reference are. At a time when our affairs are increasingly about accountability, is it not time that those committees were shepherded complainingly into the floodlight?

Baroness Scotland of Asthal

I hear what the noble Viscount, Lord Tenby, says. He is right to say that transparency and accountability will be important. We want magistrates to continue to have the full confidence of the communities that they serve. Advisory committees have performed a useful role and we hope that they will continue. The shadowing scheme that we have put in place, which allows young people to think concretely of the magistracy, should help us, because more people from a wider spectrum will volunteer to become magistrates, which must be good.

Baroness Seccombe

Little did I think, when I moved the amendment, that we would have such an interesting and varied debate. I am grateful to everyone who has taken part.

Perhaps the most difficult issue for us is that we do not see any justification for the change of appointment by the Duchy of Lancaster. We will raise the issue again under Clause 98, and on Report we may table another amendment. Amendment No. 47 meets the concerns of the noble Lord, Lord Jones, so he will have an opportunity to make his point at that stage.

My experience of district judges has been positive in so far as they have been used only in a long case, when it would have been difficult to find magistrates to cover the case. As my noble friend Lady Anelay said, in family courts cases can drift on into the next day, so there is that commitment by magistrates to be available, which is credit worthy.

The possibility of appointing 3,000 extra magistrates and more district judges is interesting. Is that envisaged because of changes in the Criminal Justice Bill, which means that magistrates will cover more cases with more responsibility? Will that bring about the need for more magistrates?

9.30 p.m.

Baroness Scotland of Asthal

As the noble Baroness knows, it is certainly right—it is foreshadowed in the Criminal Justice Bill—that lay magistrates will have an increased jurisdiction. Although we cannot predict the precise number, we are trying to make an assessment of what the needs might be. The current projection— not simply because of the Criminal Justice Bill, but because of a number of other changes we are making— is that that figure looks possible. As she also rightly said, we are doing work on the family court. As Members of the Committee will know, special courts are being piloted in certain parts of the country to address domestic violence and other issues. Specialist magistrates' panels are being recruited to sit and do that type of work. We are therefore looking much more broadly across the piece, and not only because of the Criminal Justice Bill, to see how we might better enable the magistracy to deliver the high-quality work of which we know they are capable.

Lord Jones

In her reply on advisory committees, my noble friend the Minister deployed the word "transparency". Does the Bill presume that Lords Lieutenant will continue to play a leading role in the advisory committees? Does the Bill specifically refer to Lords Lieutenant and advisory committees? How do the Government see the advisory committee in all of that?

Baroness Scotland of Asthal

Lords Lieutenant, of course, continue to be involved. The Bill does not mention anything about advisory committees. I was trying to respond to the question from the noble Lord, Lord Thomas of Gresford, about whether they would continue to be involved although they are not mentioned in the Bill. I was happy to give that reassurance. The Lord Chancellor sets out the terms on which advisory committees will operate, and those terms will continue.

Baroness Seccombe

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Seccombe moved Amendment No. 40: Page 5, line 10, leave out "or on behalf of

The noble Baroness said: This is a very short probing amendment. I am unsure when lay magistrates would have need to sit in a local justice area to which they were not assigned, although I understand that that could be possible by virtue of the office they hold. The Bill states that that may be done only in accordance with arrangements made by the Lord Chancellor. Our amendment seeks to leave out the power to delegate this function to another person.

This is, as I said, a probing amendment to ask the Minister what is behind the drafting "or on behalf of" in Clause 10. To whom would the Lord Chancellor delegate this function, and in what circumstances would this power be delegated? I beg to move.

Lord Renton

The noble Baroness, Lady Seccombe, has rendered a useful service by tabling this probing amendment. She may have had this point in mind, but I should like specifically to ask the Minister: if I hat is done on behalf of the Lord Chancellor, who is going to do it?

Baroness Scotland of Asthal

In drafting this clause, we envisaged that arrangements for magistrates to sit outside their local justice area could be made informally by court officials. The phrase "or on behalf of" was intended to cover the eventuality that a relevant court administrator might be a contractor. It is arguable that the amendment, if accepted, could potentially hamper the administration of the courts by preventing contracted-out court staff from making these arrangements. That would be inconsistent with Clause 2 of the Bill.

We have given assurances that use of the wider jurisdiction will not go against magistrates' wishes. I should like to repeat some remarks which the Lord Chancellor made last year to the Magistrates' Association annual general meeting. He said: Let me assure you: you will not be pressed to travel long distances to hear cases. This would fly in the face of local justice and the voluntary nature of your office; and would not, in any event, make economic sense. The greater flexibility provided by national jurisdiction is intended to allow you to be reassigned quickly if you change address, or to sit at a Court near Lo your work, or to provide for circumstances where it is inappropriate for a local bench to hear a case. I will be under a statutory duty to assign Magistrates to local areas and, under no circumstances, will you be pressed to serve in areas against your will. Greater flexibility in the deployment of Magistrates will remain subject to the primacy of local justice and individual availability". We envisage a case similar to that in the Court Service. If one area is under pressure, it may be possible on an ad hoc basis to ask a magistrate whether they would be so kind as to sit for a short period elsewhere, particularly if it is near their place of work or something of that nature. It is not intended that magistrates would be obliged in any way to sit in an area in which they did not agree to sit.

Lord Waddington

I am a little puzzled. When I talked about Clause 5, which referred to advice to the Lord Chancellor, I suggested that in practice the court administration council would give its advice to the agency chief officer. On Clause 10, I am therefore not sure what is the point of the "or on behalf of". When arrangements are made by the Lord Chancellor, surely they can be made by an officer of the agency who is, as it were, his alter ego. Have I got that wrong? I am interested in the constitutional significance of setting up such an agency. I would have thought that any officer of the agency could act for the Lord Chancellor. In that case what is the point of those words?

Baroness Scotland of Asthal

As I tried to make clear, the words cover the eventuality that a relevant court administrator might be a contractor. That would be very rare, but it might be the case. If it were, it would enable the administrator to make such an arrangement. It is not proposed that that is likely to happen often or at all; the words merely provide for it as an eventuality.

Baroness Seccombe

That is a very intriguing response. It seems that it puts the power for magistrates to sit in other areas in the hands of court officials, with no mention of the chairman of the Bench being involved.

Baroness Scotland of Asthal

Of course, the normal consultation would continue. At the moment, it is very difficult for a magistrate in one area to assist in another court to which they are not assigned. One of the joys of the national nature of the jurisdiction will, we hope, be greater mobility for the magistracy and the greater use to be made of its valuable resource.

I am sure that the noble Baroness will know of a number of instances where a magistrate will say, for example, "I cannot sit in my local area because I have relocated for employment purposes from Suffolk to London. I still live in Suffolk but I work in London. Although I could sit for you in an area close to my work for half a day or in the afternoon, I cannot sit elsewhere". We will be able to make arrangements that we hope will suit magistrates, take advantage their expertise and make the system work more easily. That has worked well in the Court Service.

Baroness Seccombe

I thank the Minister for that reply. We must obviously think hard about this matter and shall consult the Magistrates' Association. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Clause 10 agreed to.

Clause 11 [Retirement and removal of lay justices]:

Lord Goodhart moved Amendment No. 42: Page 5, line 27, leave out "Chancellor" and insert "Chief Justice

The noble Lord said: Subsection (6) of Clause 11 provides that: The Lord Chancellor may remove a lay justice from his office by an instrument on behalf and in the name of Her Majesty … on the ground of incapacity or misbehaviour, or … if he is satisfied that the lay justice is declining or neglecting to take a proper part in the exercise of his functions as a justice of the peace".

That power caused some concern to the Joint Committee on Human Rights, which said in paragraph 33 of its report on this Bill: At present, the Lord Chancellor can dismiss a JP at will. That gives rise to a risk that a JP might be regarded as insufficiently independent of the executive to ensure that litigants are receiving a hearing by an independent tribunal as required by ECHR Article 6.1. Clause 11(6) would restrict the Lord Chancellor's power of removal somewhat. There remains a potential problem of institutional independence, as the person making the decision to remove a JP would be a member of the executive—in fact, a Cabinet Minister".

The amendment has been tabled in order to raise with the Government the concerns of the Joint Committee on Human Rights and to hear what response they make. In the amendment, we have proposed that the power to remove a JP from office should be conferred not on the Lord Chancellor but on the Lord Chief Justice, who is plainly an independent person with no role as a member of the executive.

I recognise that subsection (6) imposes some restrictions on the present powers of the Lord Chancellor. I also recognise that a decision of the Lord Chancellor under subsection (6) would plainly be judicially reviewable. However, I believe that there is some force in the comments of the Joint Committee on Human Rights and certainly, prima facie, it would seem that it is inappropriate for a member of the executive to be in a position to remove from office a member of the judiciary. I beg to move.

Lord Renton

I support the amendment moved by the noble Lord, Lord Goodhart, mainly for the reasons that he has given. But I wish to add two short points in addition to those arguments. The first is that the responsibilities of the Lord Chancellor seem to increase with every Session of Parliament. Indeed, I believe that in the years to come the Lord Chancellor will need to have a ministerial deputy with very heavy responsibilities. Of course, one does not know who it may be. That is my first point in favour of the amendment.

The other point is that the removal of a lay justice on grounds of incapacity or misbehaviour or because, the lay justice is declining or neglecting to take a proper part in the exercise of his functions", brings one to the administration of criminal law. It is the Lord Chief Justice who, above all other members of the judiciary, is responsible for the administration of the criminal law. Therefore, I believe that it would be much more appropriate for the Lord Chief Justice to bear the responsibility for removing a lay justice, who deals only with criminal law and some other minor matters, such as granting licences for the drinking of alcohol.

9.45 p.m.

Lord Donaldson of Lymington

This is a very wide question. As I recollect, the position is that circuit judges are liable to removal by the Lord Chancellor, for reasons which may not be exactly the same but in substance are the same. If we are to say that it is necessary in this case for the Lord Chief Justice to be the remover, the same must be true—at least I think it must be true—for circuit judges. That would be a constitutional amendment of considerable importance. The views of the Strasbourg court as outlined in the case concerning the Channel Islands are good theory but are they good practice? It may be that one would have to look carefully at how the European Convention on Human Rights fits in with this.

The point I make is that this is a much wider question. Before we make this amendment I believe that some consideration must be given to the position of circuit judges.

Lord Borrie

The noble and learned Lord, Lord Donaldson of Lymington, is right in relation to circuit judges. I believe the relevant Act was the Courts Act 1971. However, Clause 17 of this Bill deals with district judges. There is provision for appointment by the Lord Chancellor and a subsection which provides for removal by the Lord Chancellor for incapacity or misbehaviour, which are the precise words contained in this clause.

I share with the noble Lord, Lord Renton, the view that the Lord Chief Justice is an incredibly important person in the administration of criminal justice. However, so far as I know he has never been directly involved in, as distinct from being consulted on, the appointment of judges at any level. He does not have the machinery, office and so forth to deal with that, whereas the Lord Chancellor's Department does.

Lord Renton

Perhaps I may ask the noble Lord to bear in mind that the responsibilities of appointment of lay justices is quite different from their removal on grounds which may be familiar to the Lord Chief Justice.

Lord Borrie

The noble Lord is right. However, the noble and learned Lord, Lord Donaldson, has made the point about circuit judges. We shall shortly discuss Clause 17, which deals with district judges. The power is given, with certain restrictions, to the Lord Chancellor's Department for the removal of district judges. It seems to me that it would be very odd indeed to isolate lay justices as a particular group of people who could be removed by the Lord Chief Justice. That would cause all kinds of practical difficulties.

I trust and hope that the wording of the Bill as it stands, with any necessary amendments if the view of the Joint Committee has to be taken even more cautiously than we already do, will ensure that there is no possibility of any effective challenge under the European Convention on Human Rights.

Baroness Scotland of Asthal

I thank the noble Lords, Lord Thomas of Gresford and Lord Goodhart, for moving the amendment that makes the Lord Chief Justice responsible for the removal of magistrates from office by instrument on behalf of Her Majesty the Queen. From the debate we have just had, this has proved to be an important issue. The noble and learned Lord, Lord Donaldson, and my noble friend Lord Borrie make a good and telling point. We are trying to ensure parity of treatment in relation to the way in which the magistracy and the judiciary are treated.

I am grateful for the opportunity to try to allay some of the concerns raised in relation to this matter. I do not think that I can accept the amendment. I thank the noble Lord, Lord Goodhart, for the indication that it is of a probing nature. It would be odd indeed if the Lord Chancellor should appoint justices on behalf of Her Majesty but the Lord Chief Justice should, where necessary, remove them.

I also note that this would have far-reaching constitutional implications, some of which have been highlighted already by noble Lords in the debate. The Lord Chancellor is at the moment the head of the judiciary under Section 1 of the Supreme Court Act 1981, and it is he who has the power to remove from office both circuit and district judges, pursuant to Section 24 of the Courts Act 1971, Section 10A of the Justices of the Peace Act 1997 and Section 11 of the County Courts Act 1984. The amendment would not be consistent with that position.

I also note that there are already safeguards in place to remedy magistrates against arbitrary or improper removal from office. The circumstances in which the Lord Chancellor exercises the power of removal are described in the directions for advisory committees on justices of the peace. Those directions define also the procedure by which a justice may be removed on recommendation to the Lord Chancellor by a committee of justices. Shortly after the Human Rights Act 1998 came fully into force, in two cases in magistrates' courts in the North East of England it was argued that justices of the peace lacked a compatible independence. But on both occasions those arguments were rejected by the courts concerned on the ground that there existed adequate safeguards.

No appeals were brought against those decisions. Additionally, the decision of the Lord Chancellor to remove a justice, or any other judicial office holder, from office is susceptible to judicial review by the High Court itself. In that sense, therefore, the removal of a justice could not be effected without judicial acquiescence and never could be effected improperly or arbitrarily. So, we suggest that the amendment would not be necessary. The issue has been discussed with the Lord Chief Justice. He is content with the position as it currently stands and is of the view that the amendment is not appropriate. I hope that that is a full explanation as to the current position in response to the concerns raised by the Committee and by the noble Lord, Lord Goodhart.

Lord Goodhart

Despite what the Minister has said, I remain firmly of the opinion that it would be more appropriate that powers to dismiss members of the judiciary—whether circuit judges, magistrates or district judges—should be removed from the Lord Chancellor. That is to a large extent for the reason raised by the noble Lord, Lord Renton; namely, that the Lord Chancellor is increasingly a Minister of Justice and in the case of the present holder of the office because he is a major political figure within the Cabinet.

Nevertheless, I accept that this would be a change that would have important constitutional consequences. My present view is that it is probably inappropriate to raise this issue on a side wind on a Bill that is mainly devoted to other purposes. So I shall take the matter away and consider it. I do not undertake that I shall not bring it back, but at present I think that it is more likely that I shall not do so.

Baroness Scotland of Asthal

Perhaps I may assist the noble Lord. I should also say that we have looked at the conventional case law. It establishes that appointment and potentially the removal of justices by the executive does not need to be inherently incompatible with the independence required of them by Article 6, provided that—crucially—there exists appropriate objective safeguards against improper interference. We believe there are. So, the case law seems to support it. I say that in order to assist the noble Lord at this stage because I do not want him to burden himself unnecessarily by bringing issues back to the House which can perhaps rest where they are.

Lord Goodhart

The noble Baroness has raised a point of which I am well aware. With regard to the European Convention on Human Rights, the European Court is likely to recognise the existence of judicial review and to acknowledge that it is an important safeguard in a case of this kind. The court might not have done so had it remained that the Lord Chancellor had an unfettered power to remove a magistrate without having to give reasons for doing so.

Having said that, from a constitutional point of view it is desirable to make the change, but at present I do not think that this is either the right time or place in which to do it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Lord Grocott

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at four minutes before ten o'clock.