HL Deb 11 February 2003 vol 644 cc578-628

4.5 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)

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.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]

Clause 41 [Power to transfer criminal cases]:

Lord Hunt of Wirral moved Amendment No. 73:

Page 19, line 32, at end insert "after hearing representations from all parties, including those representing the interests of the victim, lay and professional witnesses and defendants"

The noble Lord said: Members of the Committee will be aware that Clause 41 at present contains power to transfer criminal proceedings. Amendment No. 73 seeks to insert at the end of the provision the words, "after hearing representations"—I shall return to the rest of the amendment in a moment.

New Section 27A(1) of the 1980 Act provides for a magistrates' court to transfer the case to another magistrates' court, and new subsection (2) says that, The court may transfer the matter before or after beginning the trial or inquiry".

Amendment No. 73 seeks to ensure that there is an opportunity for representations to be made on the issue of the transfer of criminal proceedings. I hope that the Minister will be able to give us some reassurance in this regard.

When decisions come to be made about venue, the needs of the parties should be taken into consideration. We will be debating at a later stage the need for greater resources, but even greater resources for the courts and magistrates will not assist efficiency if the witnesses, the families, the victim and the defendant cannot afford to travel to court, particularly if the matter is transferred to a court some distance away. I add for the sake of completeness, but not as a ground for this amendment, the fact that there will of course be increased cost implications if the professional bodies have to be funded to travel long distances.

We received a number of representations on this point, including a submission from the Law Society. The Law Society believes it is essential that proposals for court sharing contained in this Bill are considered in the light of the Court Service longer-term strategy for management of the court estate and for the provision of key services. We must ensure that these proposals assist rather than undermine those long-term plans.

The amendment continues, after hearing representations from all parties, including those representing the interests of the victim, lay and professional witnesses and defendants".

I hope that I explained the reasoning behind the tabling of the amendment. I make the point also that in more remote rural areas, travelling to the nearest court could involve a long trip without the availability of public transport links. As mentioned before in the proceedings on this Bill, we on this side of your Lordships' Chamber are concerned about the closure of magistrates' courts and the distances that the parties involved in the proceedings have to travel to reach the next nearest court. This is not an amendment about closures; but they must be taken into account when considering the burden imposed if proceedings are transferred to a court far from the homes of those intrinsically involved in the case.

I remind the House that the amendment merely provides for representations to be heard, not an overall requirement that it cannot be moved. If it is moved, at least those inconvenienced the most should have the chance to be heard. I beg to move.

Lord Waddington

I cannot believe that a court would transfer a case to another court without hearing what the parties had to say or considering the inconvenience that would be caused to witnesses. I shall concentrate on the reference to victims. It does not follow that a court would necessarily consider those interests before deciding whether a case should be transferred. Therefore, the amendment is useful in prompting magistrates to pay regard also to the interests of victims. It would not be right to say that it is customary for a court to take into consideration the convenience of victims. Simply because it is not customary, it is surely good to prompt courts to pay regard to the effect that the transfer would have on a victim.

Lord Bassam of Brighton

I am grateful to the noble Lord for raising the issue and ensuring that we debate and discuss it. I am grateful to the noble Lord, Lord Waddington, for his contribution. He is unique among us, because he was possibly responsible for encouraging closures when he was the Home Secretary, so he knows more about the subject than most of us.

We understand the sentiments behind the amendment. We take a different view: we do not think that the amendment is entirely necessary, nor do we necessarily agree that, as drafted, it would work practically. If a magistrates' court decides to transfer a case of its own motion, the parties have a right to be heard in any event. There might be practical difficulties if the amendment were adopted. It is not clear whether the amendment requires the relevant individuals' views to be ascertained before a case can be transferred. If so, that could lead to significant delays and make the transferring of cases less convenient for everyone, rather than more convenient, which is the Government's objective.

Nor do we want the additional cost of separate legal representation for every witness as well as the parties. However, we accept that, occasionally, difficult issues may be involved in where a case should be heard. But we do not think it desirable to impose requirements that may not be necessary in ordinary cases and may cause delay, complexity and cost. We are all keen to avoid that.

Furthermore, the court will already be required to have regard to the needs of victims, witnesses and defendants in deciding whether to transfer a matter. That is because Clause 25 empowers the Lord Chancellor, with the concurrence of the Lord Chief Justice, to, give directions as to the distribution of the general business of magistrates' courts". Clause 25(4) indicates that the directions will, in particular, require the courts to take account of where the offence is committed; where the witnesses, or the majority of them, reside; and where the person charged with the offence resides.

On reflection, we have looked again at Clause 25 and acknowledge that the wording could be clarified to refer to "the transfer" as well as "the distribution" of the business of magistrates' courts. The two elements are different. We will, therefore, consider tabling an amendment to rectify that at a later stage. In the light of that, I doubt whether Amendment No. 73 is necessary. On that basis, I hope that the noble Lord will feel able to withdraw it.

Lord Hunt of Wirral

I was full of opposition to the Minister when he sought to rely on arguments that it would be contrary to the bureaucracy of the justice system to allow such representations to be made over the range that I suggested. But towards the conclusion of his remarks he offered an olive branch. I wish to go away and consider it. It stayed me in my seat from pressing the amendment and testing the opinion of your Lordships' House. But, in the circumstances, I would be discourteous to the Minister if I took that view. I wish to reflect on the points that he raised and to consider with my noble friend Lord Waddington the implications of what he said on victims. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clauses 42 and 43 agreed to.

Clause 44 [Family proceedings courts]:

4.15 p.m.

Baroness Anelay of St Johns moved Amendment No. 74:

Page 21, leave out lines 15 and 16 and insert— "(6) The Lord Chancellor may make rules under subsection (4) provided that he has—
  1. (a) published the draft rules;
  2. (b) consulted the Family Procedure Rule Committee; and
  3. (c) had regard to their recommendations."

The noble Baroness said: I shall speak also to Amendments Nos. 75, 76 and 77, which are in the same group. They are probing amendments, which I tabled only to seek answers to questions that I asked at Second Reading and were not answered in the helpful letter that the noble Baroness, Lady Scotland, sent noble Lords before Committee stage. It was one of the few items that slipped through the net. When I mentioned the matter during an earlier Committee debate, the Minister said that she was willing to answer my questions. I also notified her officials of the reason why I tabled this large group. There is no sinister reason; it is just to make it convenient for the Committee.

My basic question is: why are the Government giving the higher judiciary the power to do work currently done by lay magistrates? As I mentioned at Second Reading, I can understand why they may wish to do so in criminal proceedings, where at present there are circumstances in which cases must be remitted by the Crown Court to the magistrates' court. The Government's changes very sensibly make it possible for all the charges faced by a defendant to be dealt with at the same time in the Crown Court. I fully support that.

But, on reading the Bill, I was puzzled as to why the Government wish to hand over the work to the higher judiciary. Perhaps they plan to phase out the lay magistracy in family proceedings courts and youth courts. I am sure that that is not the case. But one could interpret the Bill as giving that power to subsequent Lord Chancellors. This is an opportunity for the Government to put on the record their precise reason for this provision. Answer finds one none in the Explanatory Notes. Paragraph 134 of the Explanatory Notes states that Clause 44 provides for the higher judiciary to do the work of the family proceedings courts, as under this Bill they will have the ability to exercise the justices' jurisdiction, although there is no current expectation that there will be widespread use of these powers in family proceedings".

If there is no expectation that there will be widespread use, obviously it is expected that it might be convenient on occasion for the provision to be used. My simple question is: what is that convenience? What rules, if any, will be laid down? How do the Government envisage that magistrates will be expected to work under the provision?

Clause 45, similarly, gives circuit judges and recorders the power to hear cases in youth courts without particular authorisation. Why would they be given this work? Is it in respect of cases in which a youth is charged with an adult? I do not know, but that point occurred to me.

I shall briefly explain the effect of my amendments. Yesterday, in trying to be brief, I was taken to task by the noble Lord, Lord Clinton-Davis, for being too brief and not giving a full explanation.

Clauses 44 and 45 set out the framework by which lay magistrates and district judges are to be authorised to hear family proceedings and youth cases. Amendments Nos. 75 and 77 require the Lord Chancellor to provide enough training for lay magistrates to ensure that there is a sufficient number of them to do the work of the family proceedings and youth courts. Therefore, there would be no excuse that there are not enough lay magistrates and that the work needs to be given to judges. Amendments Nos. 74 and 76 propose that rules giving the right to carry out the work to higher judiciary can be made only if the Lord Chancellor has first published the draft rules. I also require the Lord Chancellor to have regard to the recommendations of those committees which are consulted—the Family Procedure Rule Committee and the Criminal Procedure Rule Committee.

The Lord Chancellor has made clear that he sees a long-term future for the lay magistracy. The amendments were not tabled with any hostile intent, but to give the Government the opportunity to explain how this particular change in the Bill will operate. I beg to move.

Lord Jones

With some diffidence, I support the call for training and the views put forward by the noble Baroness, Lady Anelay, with regard to the fundamental question she asked at the beginning of her remarks. The current family court can be a harrowing place. It is often a grim drama. The Bill proposes important measures. Our scrutiny must be wise. The interests of the child are paramount, and perhaps training is everything.

Both the current family court and the county court can take the same cases. Do Ministers have a breakdown of the percentage of cases taken to these courts? Surely the proposals are based on research and information sufficient to give the answer. Why do advocates favour the county court route? That seems to be the case. Are Ministers content with that situation? Would some contact cases be dealt with as easily in the current family courts as in county courts?

Here, it is relevant to refer to the report by Dame Margaret Booth who referred to delays in the cases before the county courts. Dame Margaret proposed that proceedings of the current family courts should be transferred down to magistrates' courts. Is it the case that this has not happened despite the several years that have elapsed since Dame Margaret Booth published the report? Have Ministers ascertained why judges do not transfer the cases down, even when there is a long waiting list? Does the noble and learned Lord the Lord Chancellor have a survey of these matters under way? Has the department reached a provisional judgment? Will the family proceedings courts get a fair crack of the whip?

The basic question asked by the noble Baroness, Lady Anelay, is fair and probing. An answer could help the proceedings today.

Baroness Scotland of Asthal

I thank the noble Baroness, Lady Anelay, for tabling these amendments. I understand that they are probing. I hope to reassure her on many of the details. Again, I apologise for not responding in the letter; I was advised that the noble Baroness intended to table these amendments. Therefore, I hope to give a proper and full answer. In response to my noble friend Lord Jones, in answering many of the points raised by the noble Baroness, Lady Anelay, I shall also deal with the specific questions that he raised.

I want to reassure the noble Baroness immediately that she is right in her assessment of our approach in dealing with summary and other cases. The example that she gave was very apposite in relation to a case which is heard in the Crown Court—one summary issue dealing with the same defendant—and it would be appropriate and convenient for the Crown Court to deal with it. Because I know that this issue will be looked at by others, perhaps it may be helpful if I go through each amendment and give a full response. I hope that will be of assistance to all those who look at the issue because I understand that there is concern. I have stressed before and stress again that the Government fully recognise the valuable role that magistrates play in family and youth jurisdiction. They are committed to retaining it and to encouraging lay magistrates to sit in these jurisdictions. They have a valuable role and we would welcome more magistrates being involved in this area.

We are aware of the importance of having sufficient authorised justices to sit in these jurisdictions. As regards the family jurisdiction, it is the Government's intention to allocate more family work to the family proceedings courts and not to move away from the lay magistracy. The noble Baroness, Lady Anelay, is right that in order to encourage and enable people to do that, there are issues in relation to training. We want to achieve the most effective and efficient distribution of caseload by ensuring that cases are heard at the lowest tier of court commensurate to their nature and complexity.

Clauses 44 and 45 set out the provisions for the constitution of family proceedings and youth courts, which are broadly similar to the present law in that individual lay justices must be authorised to hear cases in these courts. Clause 61 as drafted provides that other categories of judge have the authority of district judges (magistrates' courts) to deal with family and youth cases. The clause would allow judges of all tiers, including the High Court, to sit as youth or family justices. Provision is made for their authorisation. The reasoning is as the noble Baroness, Lady Anelay, anticipated. As part of the policy of greater flexibility in judicial deployment, it is proposed that High Court judges, circuit judges and recorders should be able to sit as magistrates. It would be possible therefore—as in the example given by the noble Baroness—at the end of a Crown Court case, for a judge to deal with a left-over summary offence, to which the defendant pleaded not guilty, then and there, without the case having to be sent back to the magistrates' court, which must, as the noble Baroness knows, be done at the moment.

It is thought that that type of situation will be the main use of Clause 61. Implementation of this clause will save time and speed the dispensation of justice in those cases. As stated in the Explanatory Notes, it is not expected that extensive use would be made of this provision.

We believe that, wherever possible, there should be consistency across jurisdictions. Accordingly, the clause applies to family proceedings as well. Neither is it expected that extensive use will be made of these powers in family cases, but again, we can give a practical example of when we envisage that these powers might be useful.

The Government are looking at introducing specialist combined family centres, comprising co-located county courts and family proceedings courts. If a district judge (magistrates' courts) with a full list of family cases were to fall ill, Clause 61 would enable a recorder or circuit judge to take on the caseload if no other district judge (magistrates' courts) was available. That would help reduce delay in such circumstances as the majority of listed cases would still be heard. For example, should a list collapse and there was spare time, it would be helpful to deal with the cases rather than sending people away.

Finally, the President of the Family Division has been consulted on these clauses and is content.

I turn to the detail of the amendments tabled to Clauses 44 and 45; Amendments Nos. 74 and 76. They deal with consultation on rules to be made under these clauses and have the effect of adding to the face of the Bill that the Lord Chancellor shall "publish" draft rules and shall take into consideration the views of the rule committee.

If I tell the Committee what happens currently, the noble Baroness may be satisfied that it complies with what she proposes in the amendment. I am not sure what the word "publish" means within the amendment, but it may be covered. It does not have a single meaning in statute. It is common practice for the department to consult on draft rules via its website in any event, as well as to send them to interested parties. I hope the noble Baroness will therefore see that the draft is in the domain so that comments can be made upon it.

Looking at the proposed duty to, have regard to the recommendations", of the rules committee, the courts have made it clear that in order to comply with the statutory duty to consult, the person under the duty must conscientiously take into account the product of the consultation. That being the case, we are not sure that the proposed duty adds anything—and we are concerned that it would have, if adopted, the unlooked-for effect of suggesting that statutory references to consultation which are not set out in such detail are somehow deficient. I am sure that the noble Baroness would not like that. I see her nodding in assent.

Amendments Nos. 75 and 77 seek to impose a duty on the Lord Chancellor to, make provision for the training of a sufficient number of lay justices", to sit in the youth courts and family proceedings courts. I put forward the argument similar to those that I put forward in relation to magistrates. I am sure that in this case, too, the noble Baroness is not seeking to suggest that we should appoint any magistrates just to make up the numbers. They must be of the right quality and nature to fit the bill and we would not seek to appoint unsuitable people.

I have made clear previously in Committee, and I do so again today, that the commitment to increase the use made of magistrates remains. When we previously met in Committee, I gave the figures that we intend to aim for and there is nothing I would want to say today which would detract from any of those comments.

I turn to the authorisation system more generally. I am grateful for the opportunity to set out our thinking on the new rules for magistrates. The legislation expresses only rule-making powers rather than the substance of those rules. The substance of the rules will be dealt with thoroughly and with appropriate consultation in due course. So views are not finalised on exactly what such new rules will say, but I can indicate the direction of our thinking if the noble Baroness would find that helpful.

Magistrates are currently selected for youth and family work by being voted by their fellow magistrates on to local panels. This system applies outside inner London. Within inner London, special arrangements apply. This selection system can sometimes be a little inconsistent across the jurisdiction as it need not be based on any particular selection criteria and may not reflect the particular qualities of the magistrates concerned. It will in any case cease to be workable or appropriate when magistrates have a national rather than purely local jurisdiction, including in family matters.

We will therefore establish a system by which suitable magistrates will be selected and trained under a more transparent procedure. There will be appropriate consultation on the detail of the new rules, as has already been discussed. Much work on this has already been done by my department and stakeholders working together, and there is a general agreement that the inner London selection model has proven successful and can provide a useful starting point for a national model. There is a consensus among stakeholders that Bench training and development committees should retain a key role in selecting magistrates for these jurisdictions, so it is not proposed to lose the local link which currently exists, but merely to make the selection process more transparent and criteria-based.

On other occasions in relation to children matters, the noble Baroness has fully understood the importance of ensuring that we have the right quality of person, be it a lay or professional judge undertaking the work. We are aware that it would be problematic to require all current panel magistrates to re-qualify under a new system. We envisage that a transitional provision will provide that magistrates on panels under the current system will be deemed to be authorised under the new system.

I hope that I have managed to reassure Members of the Committee about the provisions and that there is in no way a lack of confidence in the lay magistracy quite the reverse. All parts of the judiciary are made better able to support each other, which I am sure the noble Baroness will welcome.

I was asked by my noble friend Lord Jones about the percentage of work taken in the family proceedings courts and the county courts. Under the Children Act, there are 14,130 public law applications in the family proceedings courts. In the county courts there are 9,834. As regards private law applications and family proceedings courts, there are 25,411 and as regards the county courts there are 86,269. We do not have percentages, but the figures above reflect the applications made to the court. They are from the judicial statistics for 2001, which are published by the Lord Chancellor's Department. We can write later with more details if my noble friend requires them, but I hope that those figures will be sufficient to satisfy him today.

On that basis, I invite the noble Baroness to withdraw her amendment.

4.30 p.m.

Baroness Anelay of St Johns

It is a formula always to thank Ministers for their answers. Today, I do so not as a formula but wholeheartedly. She has done not only this Committee but also everyone outside a service in the clarity of her explanation. As the noble Lord, Lord Jones, rightly said in regard to family proceedings courts, they are a grim drama. They are difficult courts for people to appear in—unless the case is for adoption, in which case it is a joyous time, but such occasions are few and far between.

I am grateful to the Minister for confirming that the Government intend to encourage lay magistrates to stay in the family proceedings courts and for setting out clearly the practical way in which the Government will try to achieve that; by making a more transparent system for the selection and training of lay justices. As one who was earlier allocated to sit on what was then a youth court but became a family proceedings court, I can see the advantages of the system that the Government propose to introduce.

I congratulate the Government on examining the practical method of having co-location of county courts and family proceedings courts in order to ensure that cases may go ahead where otherwise they might collapse. When people work themselves up to appear in such a court case, and when so much is at stake for them, it is appalling that the case should collapse. It is often a traumatic experience. Any such steps that the Government can take will only be welcome to me and I hope to other Members of the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 75 not moved.]

Clause 44 agreed to.

Clause 45 [Youth courts]:

[Amendments Nos. 76 and 77 not moved.]

Clause 45 agreed to.

Clause 46 [Court security officers]:

Lord Hunt of Wirral moved Amendment No. 78: Page 22, line 24, leave out "may" and insert "shall

The noble Lord said: We move to consider the new court security regime under which court business may be conducted by the Supreme Court, county courts and magistrates' courts, and to which the public have access. We have carefully considered the Auld review, which commented on the gradual withdrawal of police officers and a reduction in the overall police presence in courts. We need to consider that and how best to deal with security provision and security powers.

There has been a disturbing increase in the level of violence in the form of threats of violence, actual violence, the intimidation of witnesses and violence against the judiciary. It is in that light that we should consider how best to move forward and thus the amendments concern Clause 46.

We also have an opportunity to highlight the importance of court security officers, given that they will have powers of search, as set out in Clause 47; powers to exclude, remove or restrain persons, as set out in Clause 48; as well as powers to force individuals to surrender articles in their possession. They will be able to seize and retain such articles, as regulations later in the Bill set out. Furthermore, offences are created to deal with any individual who obstructs or assaults a court security officer.

I have made inquiries with law firms and within my own firm, Beachcroft Wansbroughs, to discover the up-to-date position on the level of violence. From the reports I received, I came to realise that there is still a disturbing level of violence, even in the simplest road traffic accident cases, during which tempers can rise. We must be aware that even though the offence may be comparatively minor, the risk of violence is still present. I wanted to take a moment to paint the backdrop to this discussion about court security officers.

The clause designates a court security officer as, a person who is— (a) appointed by the Lord Chancellor … and designated … as a court security officer".

The clause then sets out the power to make regulations. Amendment No. 78 seeks to leave out the word "may" at the start of subsection (2) and insert the word "shall", thus requiring the Lord Chancellor to make regulations. Then, following subsection (2)(a) covering, training courses to be completed by court security officers",— which I am sure I and all Members of the Committee welcome—paragraph (b) provides that the Lord Chancellor will also make regulations concerning the, conditions to be met before a person may be designated as a court security officer".

Of course it is absolutely critical to ensure that the right people become such officers. To that end, Amendment No. 79 would insert the words, including conditions as to good character".

The amendments provide an opportunity for the Committee to probe the Government on who they envisage will fulfil the functions of court security officers. What kind of educational qualifications do the Government have in mind, or is a more skills-based approach envisaged? Will the conditions to be set out by the Lord Chancellor include checks on criminal records? How much of a bar will that be to an individual becoming a court security officer? More generally, will there be a good character requirement? Will applicants need to present a track record not only of experience in security matters, but also to demonstrate that they are able to cope with such responsibilities? It is a fact that quite often those who assume powers as extensive as these have a tendency immediately to abuse them. I hope that that will not happen, but a number of examples could be cited of perhaps overzealous searching. We shall reach amendments dealing with the specifics in a moment.

I am sure that noble Lords want the best possible people to become court security officers and I hope that the amendments will give the Government an opportunity to set out their proposed regime.

The Law Society has made separate representations on the issue and has stated that, where any civilian exercises powers usually only exercised by the police, it is important to ensure that these powers are properly regulated and that those exercising them are accountable".

I look forward to the Minister's clarification. I beg to move.

4.45 p.m.

Lord Borrie

The provisions in this part of the Bill are among the most important. It was probably in the mind of the noble Lord, Lord Hunt, when he spoke, that a couple of years ago a judge, Her Honour Judge Goddard, was physically attacked at the Old Bailey. That is only one example of many acts of violence and intimidation which have raised concerns about the lack of security. Rather like the housing estates built in the heyday of the 1950s and 1960s, in the "pre-violent" era—if I may exaggerate a little—the architecture and design of courts was not meant to deal with the "post-violent" situation that we face today. No doubt the Lord Chancellor's Department is interested in the internal design and architecture of courtrooms and court buildings, but it would not be feasible to tackle those issues in the legislation. In this part of the Bill, however, the department is seeking to achieve a valuable improvement; that is, to implement the concerns and proposals set out by Lord Justice Auld in his report. In paragraph 109 of the chapter covering court security, he found the present position to be "disturbing". That is rather an understatement of the position.

I am a little worried whether the Government's proposals will deal adequately with both public concerns and the concerns expressed in the Auld report. One of the features of the report with which I am strongly in agreement is the concern that the public needs to be reassured. In the past that reassurance was conferred by the presence of police officers in the courts. Of course Lord Justice Auld was referring to uniformed police officers. They provide a tremendous level of deterrence as well as reassurance for the general public, witnesses and others who may not particularly want to go to court, but public duty and obligation require them to do so. I hope that the Lord Chancellor's Department can reassure me that court security officers will look as much like policemen as possible and will incorporate in the style of uniform those essential elements of deterrence and reassurance.

I am not sure about the wording of the amendments before the Committee, but if they are meant to pep up the Government's proposals, then they deserve a fair wind. To alter "may" to "shall" is a familiar way of achieving that, although my noble friend on the Front Bench may say that it is not necessary. Similarly, on the question of good character, my noble friend may respond by saying that of course the department will provide for it. Given that I am sympathetic to the thinking that lies behind the amendments, such responses would provide some reassurance both for the noble Lord, Lord Hunt, and I.

Lord Waddington

I am not usually greatly impressed by amendments that seek to substitute "shall" for "may", but I submit that in this case it would be useful. Although the clause and the amendments concern the making of regulations, the effect of substituting "shall" for "may" would be that the Lord Chancellor would have to make regulations. He would hardly make regulations unless as a result of so doing, and having been compelled so to do, training would then follow. We are discussing whether the Bill should state firmly, fairly and squarely that there must be training. Surely it would be useful for the Bill to underline that fact. There must be training for court security officers; it must not be a matter in the discretion of the Lord Chancellor. If everyone agrees on that, then the right word is "shall", not "may".

Lord Morris of Aberavon

I welcome the opportunity to make a brief comment on what I have come to regard, over the years, as a deterioration in the standards of security in our courts. I sat as a recorder, on and off, for more than 20 years—the time that I was off was when I was a Minister—and in my young days there was always a policeman in court. That was also the experience in magistrates' courts. Never now do you see a policeman; frequently not even a dock officer; and, indeed, when I was sitting as a recorder, the clerk would come to me at the end of a case and whisper in my ear that if I was minded to pass a sentence whereby the defendant would lose his or her liberty, would I adjourn for a few minutes in order that a dock officer could be provided. That is not a proper way to run a judicial system.

We all recall the fearsome attack made on Judge Goddard in the Central Criminal Court. She was distressingly and quite badly injured, She was back in court very shortly, and a very brave lady she is, as those of us who know her can attest. I had the same experience—I was not the one under attack, fortunately—when one of my clients leapt over the dock in a very old court, No. 1 court at the Old Bailey, and went for his honour Judge Capstick, the Common Serjeant. Fortunately he was stopped in time, but it could have been an equally bad situation.

We need an assurance that there will be safety in our courts. No amount of detailed provision, whether "may" or "shall", will provide that safety unless there is someone on the ground to ensure that an irate defendant, or even a witness, does not leap at the judge or at anyone else in the court. Taking a slightly contrary view to many others, I wonder whether we need to particularise to the extent of whether there should be training courses; whether certain conditions should be met; whether there should be a uniform or a badge; or whether, as the noble Lord, Lord Hunt, indicated, character should be taken into account. All of those requirements are self-evident.

If a paramount duty is upon the Lord Chancellor to ensure safety in our courts so that justice can be safely done, a simple clause stating that he should take appropriate steps to ensure that safety would be sufficient. No amount of particularisation, in whatever detail, will achieve that end unless, ultimately, in the daily happenings of our courts, there is someone there to keep a watchful eye to ensure that nothing goes wrong.

Lord Carlisle of Bucklow

I agree with every word that the noble and learned Lord, Lord Morris, has said. My experience may be a little out of date—but perhaps not all that much out of date—and accords entirely with that of the noble and learned Lord. We spent our professional careers in the criminal courts, either as counsels or recorders. As the noble and learned Lord said, when one started at the Bar—certainly in Manchester in the 1950s—one always had a uniformed policeman in court. One has seen the steady erosion of the position of a security officer in courts since that time.

Judges are concerned about this issue. They say that they greatly miss at times the security of having a policeman present when they are dealing with particular criminals. They express their concern that standards of security in our courts, for understandable reasons—there are other demands on police time—have reduced over the years. Like other noble Lords who have spoken, I believe that the amendment is important. I am sure that the Lord Chancellor's Department must realise how vital it is that there should be a properly trained security service.

I have never had anything thrown at me but, like the noble and learned Lord, Lord Morris, I have been present during an incident. In my early days at the Bar, my first recollection was seeing a prisoner, who was giving evidence, picking up a jug of water, a glass container, and hurling it—some may say with justification—at the head of Mr Justice Austin Jones. The speed with which the then detective superintendent of police, Superintendent Nimmo, whom my noble friend Lord Waddington will remember, managed to get from where he was sitting to the witness box to flatten the man even before the glass arrived on the judge's desk was remarkable. It gives confidence if there are people present who are able to give that degree of security.

Lord Waddington

Before my noble friend sits down, surely he remembers the occasion when Noel Barrie Goldie was sitting as a recorder at Manchester when a criminal leapt out of the dock. He got as far as the clerk, Mr Redhead, who is reputed to have given him a leg up.

Lord Carlisle of Bucklow

If I were to reminisce about Mr Noel Barrie Goldie we would be here for rather longer than the time intended for the Bill. I can confirm that the matter described by my noble friend Lord Waddington did occur, although it is not necessarily confirmed that Redhead helped him on his way.

Lord Bassam of Brighton

I am grateful. I feel that I have enjoyed an education as a result of the debate on the amendment.

It is worth reflecting that the clause establishes on the face of the Bill, for the first time in law, the distinct role of a court security officer. We are debating a matter of substance to which the Government have given much thought. The clause also defines when a court security officer is considered to be acting in the execution of his or her duty. It gives the Lord Chancellor the power to make provision for training courses for officers and to specify the conditions that have to be met before a person is designated as a court security officer.

The noble and learned Lord, Lord Morris, may suggest that we are being too specific in doing so—I believe that was the drift of his argument—but we believe that this is a matter of such importance that we should spell out in detail exactly how we expect court security officers to exercise their duties.

Currently there is a disparity in the security provisions for the magistrates' and county courts, the Supreme Court and the Court of Appeal. Only in the magistrates' courts is there a statutory provision for court security. When I read my notes on this, I was somewhat surprised about that.

As many noble Lords have said, the number of court security incidents is rising, partly due to a lack of authoritative security personnel with effective powers and partly due to the general decline in society's respect for the law and for authority, a point made by a number of noble Lords. That is something that we as a government have a duty to get hold of, to consider and to act on. That is what we are doing with the clause.

I was somewhat heartened to hear—it is all relative—that this is not a new problem. Noble Lords opposite waxed lyrical in their recollections, but they were quite valuable because they put a finger on the problem—that there is a general decline in trust and respect for the law and authority. We need to tackle that issue.

The decision to establish the new role of court security officer is motivated by a desire to put in place uniform security provisions across all courts and to combat the rise in the number of incidents involving violence and threatened violence that is occurring. The appalling incident involving Judge Goddard is the most notable one in recent times.

As currently drafted, the clause gives the Lord Chancellor a power to make, by regulations, provision as to training courses to be completed by court security officers and to specify the conditions that must be met prior to a person being designated as a court security officer. The amendment would turn that power into a duty.

We recognise the importance of recruiting the right people to be court security officers. It is also vital that they receive suitable and, importantly, sufficient training to enable them to carry out these powers lawfully and effectively. The role carries significant responsibility, so it is crucial that a certain standard should be met before a person can become a court security officer. Although it is difficult to detail the kinds of qualities and skills that will be necessary, we believe that such qualities as effective communication will be important. We need to be certain that, in carrying that significant responsibility, people attain a certain standard. I ought to spell out at an early stage that it is envisaged that there will be a full criminal records check to make sure that applicants are of good character. A number of Members of the Committee referred to that important point.

The importance of the issues raised is clear. However, it is not yet clear whether regulations will be the most practical, effective or necessary way of dealing with the issues. Phrasing the clause in terms of a power will give the Lord Chancellor time to develop and test proposals, so that full consideration can be given to the best method of presenting any necessary standards or training programmes and assuring that they are met. We believe that it is important that the power should contain that flexibility. We fully accept the importance of the issues referred to in the clause, but we prefer the flexibility of approach that a power offers. I hope that Members of the Committee will consider that point. Flexibility is important in constructing standards and programmes. I hope that the amendment on that issue will be withdrawn.

Amendment No. 79 seeks to amend Clause 46(2). Again, as it currently stands, the clause gives my noble and learned friend the Lord Chancellor a power to make provision, by regulation, as to conditions to be met before a person may be designated as a court security officer. The amendment would require that regulations made under this power would include a condition as to the good character of the person concerned. I am clear that we will require persons of good character. As I said earlier, full security checks will be made.

The role of the court security officer will carry a high level of responsibility to the court, to its users and to the wider public. Inherent in the position is an assumption that the person will be of good character. Central to the function of a court security officer, therefore, is a requirement that a person inspires the confidence of his or her employers and the public and that he or she can be depended upon to carry out his or her role in a fair, responsible and efficient manner. At least one reference was made to officers not being overly officious in carrying out searches, for example. We shall come to that point later. The Government feel that if regulations are made setting out the conditions to be met before a person can be designated as a court security officer, conditions as to good character should rank as a high priority.

A question was raised about accountability. The performance of court security regimes will be covered by the inspectorate. In the past we have not had an inspectorate that has fully covered the court service, but the new unified inspectorate will make this one of its priority areas.

The issue of uniforms was raised. It is our intention that the court security officer will be readily identifiable. It is currently envisaged that the most effective way would be by way of uniform.

I believe that I have answered all the points raised and I hope that, on reflection, the noble Lord will be able to withdraw the amendment. I am delighted that this issue has been treated with such seriousness and that there is a desire on all sides of the Committee to ensure that we get the very best from what is essentially a new court security service, and that it fulfils expectations in the way that we all hope it will.

Lord Carlisle of Bucklow

Perhaps I may add one possibly, constructive contribution. In the old days, when looking for security officers the courts made a great deal of use of retired police officers. Now, you hardly ever see a retired police officer around. They may be getting older, but they still look fit and have a degree of authority about them. It is an area where one might well look for recruits.

Lord Bassam of Brighton

The noble Lord raises a very positive point. When shaping the programme of advertising for posts within the court security service, we shall be looking for exactly that kind of person. We want to attract officers of the calibre of community support officers, investigating officers, detention officers, escort officers and police officers. All of those positions in our law and order family are important. We need the same calibre of person to fulfil the role of court security officer.

Lord Morris of Aberavon

Following the observation made by the noble Lord, Lord Carlisle, perhaps I may add that ex-servicemen, non-commissioned soldiers, would make admirable security officers along the lines proposed. They are the kind of people who have the authority, and that is important.

Lord Bassam of Brighton

We all enjoy the benefits of having former service personnel in this place. They do an excellent job here and I am sure they could d o an excellent job in our courts.

Lord Borrie

Before the Minister finally sits down, perhaps I may intervene in a way which is not so positive as the last two contributions. I was not entirely satisfied by the noble Lord's response to my queries about uniform. Clause 46 refers to a security officer being identifiable, by means of his uniform or badge or otherwise". That made me rather unhappy. I travel on London buses. This may be a very old-fashioned, old fogeyish thing to say, but, nowadays, I do not always recognise the conductor—because he is certainly not wearing a cap, he is probably not wearing a uniform and he is sitting down some way towards the front of the bus; it is only after one has been going for some time that one notices that someone rather ill-dressed—no better or worse dressed than anyone else—occasionally puts his hand up and indicates to the driver by way of a couple of pulls on the bell that it is time for the bus to move off. If we are to have real reassurance in the courts and real deterrence, which is part of what all this is about, there is surely a specific need for a uniformed individual.

Lord Bassam of Brighton

Perhaps I should have made it plainer: it is our expectation that court security officers will be uniformed. That is what we seek. I hope that that reassures the noble Lord.

Lord Hunt of Wirral

I am grateful to the Minister for his response, in particular to Amendment No. 79. It may be of assistance to the Committee if I indicate that it is not my intention to press that amendment. The Minister has made us aware of the intention to ensure that people who take on these important tasks are of good character. I wondered, however, when I heard the Minister's response to Amendment No. 78, whether he had been listening to some of the contributions made in the debate. Perhaps I may refer first to the very effective speech made by the noble and learned Lord, Lord Morris of Aberavon. I had a great deal of sympathy with his point. We ought to reflect on whether there should not simply be a duty on the Lord Chancellor to ensure safety in our courts—full stop. That goes slightly further than the proposal in my amendment, but it is a point on which I should like to reflect and to which I shall perhaps return at a later stage. We are where we are, and we have a power to make provision. It is that which I found disappointing in the Minister's response.

My noble friend Lord Waddington made the effective point that the Lord Chancellor must make these regulations and there should be a duty on him to do so. I was troubled when the Minister said that he was unsure whether regulations would be the right way forward, and that there was a need for flexibility. He said that, if the Lord Chancellor were under a duty, he would not have the flexibility to decide on other ways forward, apart from making regulations.

I came to the debate believing that the Minister would say that, of course, regulations would be made to ensure that there were proper training courses and conditions to be met before someone could be designated a court officer. I am now worried that we may never see any regulations, because the Lord Chancellor wants flexibility. The Minister asked us to keep the word "may" to ensure that the Lord Chancellor, has the flexibility to decide on the best way forward".

Lord Bassam of Brighton

To avoid any doubt, I shall repeat what I believe I said when speaking to Amendment No. 78. As currently drafted, the clause gives the Lord Chancellor a power to make, by regulations, provision as to training courses to be completed by court security officers and conditions that must be met prior to a person being designated as a court security officer. I thought that was what I said earlier, and I hope it will satisfy Members of the Committee. At that stage I was talking about a power to make provisions by regulation. I hope that deals with any confusion that might exist in the noble Lord's mind.

Lord Hunt of Wirral

The amendment would put a duty on the Lord Chancellor to make regulations. That is the point on which I differ with the Minister, who made much of the fact that the Lord Chancellor might decide that, in making provision, regulations were not the correct way forward. That might be what happens. When he reads Hansard, he will see that that was what he said, and he may want to refer to his speaking note. I am not sure that the Committee should be content with that flexibility.

I welcomed the comments of the noble Lord, Lord Borrie, who was right to emphasise the strategic importance of what we are debating. He made a valuable contribution to the debate. My noble friend Lord Carlisle not only led us down the road to some wonderful memories, but also gave some chilling examples of how badly things can go wrong. How right he is that people miss the security of having a police officer present.

I do not believe that noble Lords will be satisfied with a merely permissive and flexible provision that the Lord Chancellor will make regulations if he thinks fit. We should make it a duty. Therefore, I want to test the opinion of the Committee on Amendment No. 78.

5.13 p.m.

On Question, Whether the said amendment (No. 78) shall be agreed to?

Their Lordships divided: Contents, 101; Not-Contents, 116.

Division No. 2
Addington, L. Liverpool, E.
Alderdice, L. Livsey of Talgarth, L.
Ampthill, L. Luke,L.
Anelay of St Johns, B. MacGregor of Pulham Market, L.
Astor of Hever, L.
Barker, B. Mackie of Benshie, L.
Blatch, B. MacLaurin of Knebworth, L.
Brooke of Sutton Mandeville, L. McNally, L.
Brougham and Vaux, L. Maddock, B.
Burnham,L. Mar and Kellie, E.
Buscombe, B. Michie of Gallanach, B.
Carlile of Berriew, L. Miller of Hendon, B.
Carlisle of Bucklow,L. Montrose, D.
Carnegy of Lour, B. Mowbray and Stourton, L.
Cavendish of Furness, L. Murton of Lindisfarne, L.
Colwyn, L. Naseby, L.
Cope of Berkeley, L. [Teller] Newby, L.
Craigavon, V. Oakeshott of Seagrove Bay, L.
Dahrendorf, L. O'Cathain, B.
Dean of Harptree, L. Patten, L.
Denham, L. Peel,E.
Dholakia, L. Perry of Southwark, B.
Elliott of Morpeth,L. Prior, L.
Ezra,L. Redesdale, L.
Fearn, L. Rees, L.
Flather, B. Renfrew of Kaimsthorn, L.
Forsyth of Drumlean, L. Renton, L.
Fowler, L. Rodgers of Quarry Bank, L.
Gardner of Parkes, B. Roper, L.
Geraint, L. Russell, E.
Goodhart, L. Saltoun of Abernethy, Ly.
Gray of Contin, L. Sandberg, L.
Hamwee, B. Seccombe, B. [Teller]
Hanham, B. Sharp of Guildford.B.
Harris of Richmond, B. Shaw of Northstead, L.
Hayhoe, L. Shrewsbury, E.
Henley, L. Shutt of Greetland, L.
Higgins, L. Skelmersdale, L.
Hooper, B. Smith of Clifton, L.
Hooson, L. Stewartby, L.
Howe, E. Stodart of Leaston, L.
Hunt of Wirral,L. Strathclyde, L.
Jopling, L. Swinfen, L.
Kimball,L. Thomas of Gresford, L.
King of Bridgwater, L. Thomas of Gwydir, L.
Knight of Collingtree, B. Thomas of Walliswood, B.
Lane of Horsell.L. Tope,L.
Lester of Herne Hill, L. Trumpington, B.
Vinson, L. Wakeham, L.
Vivian, L. Wallace of Saltaire,L.
Waddington, L. Williams of Crosby, B.
Acton, L. Hilton of Eggardon, B.
Allenby of Megiddo, V. HoggofCumbernauld, L.
Alli, L. Hollis of Heigham, B.
Andrews, B. Howells of St. Davids, B.
Ashley of Stoke, L. Hoyle,L.
Ashton of Upholland, B. Hughes of Woodside, L.
Bach, L. Hunt of Kings Heath, L.
Barnett, L. Irvine of Lairg, L.(Lord Chancellor)
Bassam of Brighton, L.
Blackstone, B. Jannerof Braunstone, L.
Blood, B. Jones, L.
Borrie, L. Judd, L.
Boston of Faversham, L. King of West Bromwich, L.
Bragg, L. Kirkhill, L.
Brooke of Alverthorpe, L. Levy, L.
Brookman, L. Lipsey, L.
Bruce of Donington, L. Lockwood, B.
Burlison, L. Lofthouse of Pontefract, L.
Cameron of Lochbroom, L. Mclntosh of Haringey, L. [Teller]
Campbell-Savours, L.
Carter, L. MacKenzieof Culkein, L.
Chan, L. Marsh, L.
Chandos, V. Mason of Barnsley, L.
Christopher, L. Massey of Darwen, B.
Clarke of Hampstead, L. Merlyn-Rees, L.
Cobbold, L. Morris of Aberavon, L.
Corbett of Castle Vale, L. Morris of Manchester, L.
Crawley, B. Nicol, B.
Darcy de Knayth,B. Orme, L.
David, B. Parekh, L.
Davies of Coity, L. Paul, L.
Davies of Oldham, L Pendry, L.
Dean of Thornton-le-Fylde, B. Peston, L.
Dixon L Pitkeathley.B.
Donoughue, L. Plant of Highfield,L.
Dubs, L. Radice, L.
Eames, L. Randall of St. Budeaux, L.
Elder, L. Rendell of Babergh,B.
Erroll, E. Rogan, L.
Evans of Parkside, L. Sawyer, L.
Evans of Temple Guiting, L. Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Evans of Watford, L. Smith of Gilmorehill, B.
Farrington of Ribbleton, B. Smith of Leigh, L.
Faulkner of Worcester, L. Stallard, L.
Filkin, L.
Gale, B. Taylor of Blackburn, L.
Gavron, L. Temple-Morris, L.
Gibson of Market Rasen, B. Uddin,B.
Gilbert, L. Varley.L.
Golding, B. Walker of Doncaster, L.
Goldsmith, L. Warwick of Undercliffe, B.
Gordon of Strathblane, L. Weatherill,L.
Goudie, B. Whitaker, B.
Gould of Potternewton, B. Wilkins,B.
Graham of Edmonton, L. Williams of Elvel,L.
Grocott, L. [Teller] Williams of Mostyn, L. (Lord Privy Seal)
Hardy of Wath,L.
Harrison, L. Williamson of Horton, L.
Haskel, L. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.23 p.m.

[Amendment No. 79 not moved.]

Clause 46 agreed to.

Lord Hunt of Wirral moved Amendment No. 80: Before Clause 47, insert the following new clause—


In sections 47 and 48, the term "any person" does not include judges and justices of the peace who are present in, or seeking to enter, a court building for the purposes of their duties."

The noble Lord said: We now move on to consider powers of search and powers to exclude, remove or restrain persons. The purpose of the new clause is to press the Government to explain the powers of court security officers in relation to judges and magistrates. Clauses 47 and 48 give court security officers the power to search any person seeking to enter a court building. The power to exclude, remove or restrain also applies to any person in a court building in certain circumstances. There appears to be no qualification of the phrase "any person" in the Bill. Presumably, those powers could be exercised in relation to judges or magistrates who were seeking to enter or were present in a court building for the purpose of hearing cases. The powers could even extend to the Lord Chief Justice and the Master of the Rolls when they were seeking to enter the Royal Courts of Justice.

I hope the Minister will be able to say whether the Government intend that the provision should apply to everybody. If so, will court security officers be given training or guidance on what to do if they are concerned to deal with the searching of a judge or magistrate?

There are a number of ramifications. For instance, one can imagine a senior female judge refusing to undergo a search by a male court security officer. Under the powers given in Clause 48, the judge could be excluded from the court building, which would create obvious difficulties.

I hope the Minister will be able to clarify the position and will tell us what guidance the Government intend to issue to court security officers on how to deal with judges and magistrates, whom they may encounter in the course of their security duties.

I have not spoken to Amendment No. 81, which is also worthy of attention. I leave that to the noble Lord, Lord Goodhart. I beg to move.

Lord Goodhart

I shall speak to Amendment No. 81, which has been grouped with Amendment No. 80, although it raises a slightly different point. The noble Lord, Lord Hunt of Wirral, has raised a serious point, although the way in which it has been framed may reinforce the view of some that judges are not, in fact, people.

We have tabled Amendment No. 81 because it seems clear that most of the court security officers will come from private security companies rather than being trained police or other public servants. In general, the public have a right of access to courts. Keeping the courts in general open to the public, save in very limited circumstances, is a constitutional obligation. It is therefore desirable that members of the public seeking to enter a court should not be deterred from exercising their right to do so by intrusive searches by court security officers. Can the Minister assure us that searches will be carried out sensitively and that officers will be given guidance on that?

The intention of our amendment is to specify that a court security officer can search people only if there is something suspicious about the person or if the circumstances are such that special care is likely to be needed. That would be the case during a trial for a terrorist offence or a trial of someone who is believed to be a member of a violent gang. In those circumstances, there could be justification for searching everybody, but in many cases searches would be unnecessary and intrusive. We hope we can be assured that excessive searching will not be carried out in such cases.

5.30 p.m.

Lord Waddington

I am a little concerned by the wording of Amendment No. 81. I am glad that it is included in the Marshalled List as it gives us the opportunity to discuss an important matter.

Routine checks are carried out at St Stephen's entrance as it is impossible to tell among a considerable throng of people whether someone is carrying a rope to enable him or her to abseil down from the Gallery, as once happened, or whether someone is carrying a brick to throw at some politician he or she does not like, or, indeed, in these dangerous times, whether someone is carrying a hand grenade. It is important to carry out such routine checks when people wish to enter this building. I cannot see the difference between the situation here and that which appertains in a court. Many people attend court for good reason. They may be parties to a case or genuinely interested in, or worried about, the outcome of a case. However, others attend from idle curiosity. Others attend to pass the time of day and others attend, I fear, in order to make mischief. Therefore, I believe that it is proper that routine checks should be carried out to ensure that people are not carrying dangerous material.

Lord Borrie

The noble Lord, Lord Waddington, made some important points which we should all take into account. Everyone who took part in the debate on the previous amendment—I believe that although the noble Lord, Lord Goodhart, was present, he did not take part in that debate—appreciated the very great importance at the present time of ensuring the safety and the security of court users. I include in that everyone from judges and jurors to witnesses and, indeed, those who attend court as members of the public to observe the proceedings.

Recently there have been a number of violent incidents. In the debate on the previous amendment Members of the Committee mentioned the decline in the number of uniformed policemen in our courts and the rather extraordinary situation that the Crown Court seems to be less protected in regard to security than the magistrates' court. Members of the Committee considered that the security of those who entered court buildings was of the greatest importance.

If the speech made by the noble Lord, Lord Goodhart, had been made by the noble Lord, Lord Hunt of Wirral, I should have accused him of using words at variance with those he used with regard to the previous amendment. I do not understand how he can support Amendment No. 81—to which his name is not attached—spoken to by the noble Lord, Lord Goodhart. If the amendment of the noble Lord, Lord Goodhart—

Lord Goodhart

I am grateful to the noble Lord, Lord Borrie, for giving way. The two amendments are not inconsistent. Amendment No. 80 gives judges and justices an absolute right to enter court buildings without being searched. Amendment No. 81 does not give any such right to members of the general public. It merely seeks to ensure that searching is not intrusive or excessive.

Lord Borrie

It is my fault if I did not make myself clear but I was not referring to the differences between Amendments Nos. 80 and 81. I was referring to the differences between the proposition in Amendment No. 81 and the statements made by Members of the Committee on both sides and by the noble and learned Lord, Lord Morris of Aberavon, in the debate on the previous amendment as distinct from what was said by the noble Lord, Lord Goodhart, in this debate.

What we are talking about here are court buildings and the safety of those who carry out various roles—judges, witnesses and so on—in them. To hobble the power of search in the way in which the noble Lord, Lord Goodhart, suggests and to require "reasonable grounds to believe"—a phrase with which we are all familiar and which has been legally tested as requiring a heavy burden of proof to satisfy—before taking certain action is to go too far. If the noble Lord had used the term "reasonable suspicion", I should be happier. The powers of search we are discussing do not apply anywhere and everywhere. They apply to court buildings. Given our experience in court buildings in recent years, the lack of security and the view expressed on all sides of the Committee in the debate on the previous amendment as regards the need for a deterrent presence, preferably of uniformed security officers, it would be unwise to support Amendment No. 81.

Lord Carlisle of Bucklow

Like my noble friend Lord Waddington, I am concerned about the wording of Amendment No. 81 which states: An officer may carry out a search … only if he has reasonable grounds to believe— (a) that the person is in possession of an article which ought to be surrendered". I find it difficult to see how a court security officer showing people into the public gallery of a court will be able to say whether he has reasonable grounds to believe, or even suspects, that any of them are carrying a weapon. The measure is far too restrictive as it stands.

I go wider. I cannot see what is the objection to a general search, certainly in certain circumstances. What does one mean by the word "search"? Does one mean a search physically carried out by an individual or a search carried out by a machine? I remind the Committee that every single member of the public, every single member of the Bar and every single instructing solicitor who walks into the Old Bailey passes through a machine and must also put his possessions through a machine to enable them to be checked. I do not think that I have ever heard any member of the Bar complain about that. I believe that that is the only way in which one can obtain the necessary security.

In a major drugs trial or a major terrorist trial is it unreasonable to search those who enter the public gallery? Must an officer limit searches to those he has reasonable grounds to believe may be carrying an article which ought to be surrendered? I say to my noble friend Lord Hunt, speaking purely for myself, that although I recognise that it is important to respect the dignity of judges and justices, I question whether it is appropriate to exclude them from search provisions. I was involved in a trial of Libyan terrorists in which all counsel were physically searched each day before we entered or left the court or re-entered it. One might say that that was unnecessary but the police obviously were not of that view. They believed that they were right to conduct those searches. To my knowledge no one complained of being searched.

I suspect that in some areas magistrates when entering court may pass through machines similar to those in place at the Old Bailey. They may also be searched as they enter court. I question whether Amendment No. 80 is necessary to uphold the dignity of judges and magistrates. Certainly, I believe that Amendment No. 81 goes much further than is desirable.

Lord Donaldson of Lymington

As regards Amendment No. 80, it would be necessary, if it were generally acceptable, to look at the drafting with a view to protecting the position of a security officer who does not believe that someone claiming to be a magistrate or a judge is a magistrate or a judge, or has doubts about that. The measure should certainly be limited to people whom the officer concerned is satisfied are judges or magistrates. I do not think that we need bother with the phrase concerning entering for the purposes of their duties but the officer must be satisfied that they are judges or magistrates. As regards Amendment No. 81 and the powers of search, I am bound to say that I agree that in some circumstances one must search everyone entering a court.

By way of pure anecdote and perhaps to enliven the proceedings, I shall recall when I was the judge in an IRA trial at the Old Bailey and was accompanied by an armed detective sergeant. Of course, as a judge I entered through the judges' entrance. When I was in the back corridors, I was met by a uniformed attendant employed by the Corporation of the City of London, who was obviously very doubtful about the whole situation. He accepted that I was the judge, and I said, "This chap's my minder", or words to that effect. He replied, "Well, I'll have to look at that". The detective sergeant then opened his coat, revealing two revolvers—whereupon the attendant said, "Oh, come in".

Lord Swinfen

The question of terrorist and major drugs trials has already been discussed in relation to Amendment No. 81, so I shall not go into that, but I would like to take the opportunity to raise a question about Clause 47(2). It states: Subsection (1) does not authorise the officer to require a person to remove any of his clothing other than a coat, jacket, gloves or hat". What is the position with regard to potential suicide bombers? They pose a growing problem throughout the world that could well come to this country and be used to disrupt a terrorist trial. Explosives are becoming more sophisticated, and I am sure that a good suicide bomber could wear a tight-fitting corset that would not necessarily be discovered by removing only a jacket.

5.45 p.m.

Lord Bassam of Brighton

It has been a helpful debate on the amendment. We ought to start by reminding ourselves of the purpose of the provisions, which I take to be that we are all concerned—in a sense, I suppose that we are putting that concern into the legislation—to ensure public protection and safety. We need to take measures that are, to use the expressions of the day, proportionate, reasonable in the circumstances and appropriate to the demands of the time.

I was drawn to the comments of the noble Lord, Lord Carlisle. He was right, in that in general terms few of us have any objection at all to being searched. I take comfort when I am searched after going through the security barriers when I board an aeroplane, because it makes me feel more content that I am likely to be entering a safer environment on the other side.

We know that courts can be disrupted and that there have been incidents. We are well aware of the terrorist threat that can confront us, so what we have to do is to put in place measures that work, are flexible, operable and also sensitive. That is plainly what we are trying to do.

Clause 47 gives a court security officer power to search a person on entry or who is already in a court building, and to search any article in such a person's possession. It is worth saying that that power is in line with the existing powers enjoyed by court security officers, so it is based on something that we know works well, although it is no doubt not perfect. Clause 48 confers a power to exclude, remove or restrain persons who are in a court building, if it is necessary to do so for specified reasons.

Amendments Nos. 80 and 81 may not contradict each other; one could argue that they cover adjacent areas. They would raise some issues of interpretation. The new clause proposed in Amendment No. 80 would reduce the scope of the powers currently in place by preventing their exercise in respect of judges or justices of the peace who were present in, or sought to enter, a court building for the purposes of their duties.

As we heard from the noble and learned Lord, Lord Donaldson, in general judges and justices of the peace enter a court building through a specially designated entrance, and the current search policy is that those who enter in that way are not searched. We have no doubt that that will continue to be the case. However, there may be occasions when judges or justices of the peace enter a building through the public entrance. In that situation, the policy is that they will be searched in the same way as all others using that entrance. That seems plainly sensible and right. Why should they be singled out or discriminated in favour of in any way? As some Members of the Committee have said, failure to search a judge or justice of the peace, who are often not recognisable as such, on using a public entrance to a court building could provoke complaints and accusations of discrimination from members of the public who are subsequently searched.

We appreciate that there will rarely, if ever, be occasions when a court security officer will need to exercise his powers of exclusion, removal or restraint in respect of a judge or a justice of the peace. As we all know, all judges are as sober as judges, and we would not expect them to be otherwise. They are people of good character. Equally, we appreciate that occasions on which searches will lead to the surrender or seizure of weapons will be exceptional. However, a universal policy on search, removal, exclusion and restraint is necessary to retain and promote public confidence.

Perhaps it is worth adding that the existing statutory provision for court security officers refers, as the Bill does, to "any person", and does not contain an exception for justices.

Amendment No. 81 proposes that a subsection be added to the Bill restricting the ability of court security officers to carry out searches of those in, or seeking to enter, court premises. It would allow searches only in instances where court security officers had reasonable grounds to suspect that that person or some other person was in or was likely to be in possession of an item which might jeopardise the maintenance of order in the court building, put the safety of any person in the court building at risk or be evidence of an offence.

Members of the Committee may wish to note that the clause is in line with the existing powers enjoyed by court security officers in the magistrates' court under Section 77 of the Criminal Justice Act 1991 and court security officers under Section 80(1)(c) of the Justice (Northern Ireland) Act 2002. We are not aware of any evidence that the current "search of all" powers applied in the court are unacceptable to court users. We have not had complaints on that. The amendment therefore would represent a diminution of powers currently enjoyed, and would actively reduce the ability of court security guards to search those in, or seeking to enter, court buildings. Is that wise at this time? I do not think so.

Figures indicate that in excess of 22,500 firearms, knives and tools are collected each year as a result of the automatic search powers currently enjoyed by court security officers. That is a pretty devastating statistic. A diminution of powers would inevitably increase the ability of prohibited items to be brought into court buildings and the frequency of serious incidents. In most cases, it is not obvious that a person may be carrying a weapon that is offensive or dangerous, or potentially so. Therefore, it would be difficult for a court security officer to carry out searches without attracting claims of victimisation or discrimination.

We of course recognise the importance of abiding by Article 8 of the European Convention on Human Rights, which guards against unnecessary interference with an individual's right to respect for private life.

Lord Hunt of Wirral

We are seeking to absorb the statistic that the Minister threw at us. Rather than stating again that 22,000 guns, knives and other implements are confiscated, will he give us a breakdown of them, if only to reassure us that they are not in the main exceedingly serious implements? If they were, the approach necessary would have to change.

Lord Bassam of Brighton

When I first looked at the notes, I wanted to give such a breakdown, but I cannot. We can assume that there will be few firearms in that figure, but such items have been recovered at the entrances to courtrooms.

Lord Hunt of Wirral

Perhaps I can assist the Minister. It may be that some items are a pair of nail scissors or a penknife or something minor. If he cannot give the Committee any figures now perhaps he will do so before we reach Report stage.

Lord Thomas of Gresford

I have stood in a security queue at the Old Bailey when the person in front of me placed a flick knife in the tray and the policeman at the far end did a double take. He said, "What on earth do you think you are doing, I can arrest you for that", to which the man said, "I didn't think there was anything wrong in carrying it into the Old Bailey".

Lord Bassam of Brighton

All those points are helpful in underlining the importance of court security services. The vast majority of items will be knives. Far too many people carry knives in such circumstances and we must guard against that.

We take a serious view of the matter and that is why we believe that the powers in the Bill are right and appropriate. I am grateful to all noble Lords who have contributed to the debate; it has underlined the importance that we place on the matter. While I understand the spirit in which both sets of amendments have been moved, I believe that we have the correct balance. As matters stand, the system works. The powers that we seek to continue are accurately described in the Bill as it stands. To depart from what we have drafted, particularly as suggested by Amendment No. 81, could have a serious impact upon court security.

Lord Hunt of Wirral

Perhaps the Minister would speak to the point raised by my noble friend Lord Swinfen about dealing with suicide bombers under Clause 47(2) which states: Subsection (1) does not authorise the officer to require a person to remove any of his clothing other than a coat, jacket, gloves or hat".

Lord Bassam of Brighton

Given that our court buildings are public buildings, ultimately it would be impossible to prevent entry, even to the entrance foyer, to the general public. Initial searches, particularly in the supreme court, will invariably, as noble Lords have described, be by way of machine—the arch or the wand—which would detect any such terrorist as described by the noble Lord, Lord Swinfen. Certainly at the supreme court we have in place more than adequate measures which are vitally important for security for all those involved in court processes. I hope that that deals with the point raised by the noble Lord. We are well aware of the matter. Clearly we must take careful account of the degree of risk at any time.

Lord Swinfen

I would be grateful if the noble Lord would consider this matter seriously. Clause 47(2) limits the ability of a security officer to search someone. The Minister will have seen films and plays in which unmarried actresses are shown looking fairly heavily pregnant and slim actors looking quite rotund. If that can be achieved by the acting profession and good props departments it can be achieved by the terrorist as well. By leaving subsection (2) in the Bill the Minister restricts security at courts. I believe that he should seriously reconsider this point. I shall not ask him to answer the matter in detail at this stage, but I believe that he should give an undertaking to reconsider it.

Lord Bassam of Brighton

We take the matter seriously. I am happy to give an undertaking that we shall consider the wording to ensure that it is adequate. In most circumstances, the degree of search envisaged by the subsection will be adequate. I take on board the noble Lord's point that there may be a time and circumstances in which we may need to go further. It is for those reasons that places such as the supreme court are afforded the protection that they have for serious cases. The noble Lord makes a good descriptive point.

Lord Hunt of Wirral

We have had a valuable debate—valuable in every possible sense. Not only are noble Lords aware of the serious problems faced by court security, but there is also a feeling that we want to ensure that our courts are safe. Referring to the point raised by the noble and learned Lord, Lord Morris of Aberavon, we want an assurance that there will be safety in our courts.

In another sense this has been a valuable discussion. We have explored a number of possibilities and we shall want time to reflect on them. I have one or two other points that I want to raise under clause stand part, but for now I thank noble Lords for participating in this important debate. With my noble friends I shall reflect on the matter, but for now I beg leave to withdraw the amendment.

Amendment by leave withdrawn.

Clause 47 [Powers of search]:

[Amendment No. 81 not moved.]

On Question, Whether Clause 47 shall stand part of the Bill?

Lord Hunt of Wirral

I have two points. The first is that references were made to search mechanics. The Minister sought to reassure the Committee that metal detectors would secure the safety of all who use the buildings. One of my noble friends has pointed out that recent experience shows that such metal detectors do not pick up certain types of explosive and other dangerous materials and that a silicon detector is required. I shall not go into the various sophisticated methods, but it is vitally important that we keep in step with the latest technology.

As we consider the extensive search powers being authorised under this clause, my second point is who will pay for it? We shall debate that point later when we come to the clauses that seek to give the Lord Chancellor power to ensure that court fees cover a range of activities. It would be helpful if the Minister could assure the Committee that the extra security measures suggested in his comments would not be a burden on the court fees, and that extra resources will be made available to cover the important duty on the Government to ensure that we have safety in our courts. It would be helpful if the Minister could so indicate. We would also like to hear more on the statistics of confiscated items and the extent to which such problems are on the increase, which may give us additional cause for concern.

Lord Thomas of Gresford

Subsection (2) is ethnocentric in that it refers only to standard western dress. From time to time the courts are frequented by people in voluminous, ethnic dress. I see the noble Lord, Lord Mackay of Drumadoon is in his place and of course I consider kilts to be ethnic dress. Perhaps the list is drawn too narrowly.

6 p.m.

Lord Bassam of Brighton

The noble Lord, Lord Hunt, raises a useful point about technology and the levels of sophistication that some people will use in order to enter a court or court buildings and cause mayhem. We are aware of that. It would be negligent if we were not aware of changes and improvements that we might require occasionally. We have sufficient cover for that. Ultimately, it is the responsibility of the Lord Chancellor and his department to ensure that we have an adequate budget to meet new and higher standards of security that might be necessary to protect court hearings. That is a very important duty which is placed upon the Lord Chancellor.

On the point made by the noble Lord, Lord Thomas of Gresford, I am sure that court officials who are charged with the responsibility of carrying out searches will be mindful that the strict wording of the clause which, as he says, talks about coats, jackets, gloves, hats and so on covers other modes of dress. I am sure that they would investigate sporrans if people regularly turned up at court wearing them. Therefore, that eventuality can be dealt with.

Lord Borrie

I ask my noble friend whether, in the light of this discussion and the extremely important points made, first, by the noble Lord, Lord Swinfen, and then more colourfully by the noble Lord, Lord Thomas of Gresford, perhaps an amendment to delete subsection (2) would be the best way forward.

Lord Morris of Aberavon

I apologise that I was not able to hear the earlier part of the debate. I repeat the point that I made previously in another context regarding over-particularising. Why do we need words such as a hat, a coat and so on? Surely, if there is a general duty to maintain safety in the courts the clause goes about it the wrong way by setting out in such detail these particular searches.

Lord Bassam of Brighton

Before we get too carried away, we need to remind ourselves of Article 8. I referred to it earlier. It requires that any interference must pursue a legitimate aim. In a democratic society that means that it must fulfil a pressing social need and be proportionate to the aim relied upon. In this instance, the prevention of disorder or crime and the protection of the rights and freedom of others are the legitimate aims that we seek to pursue. It cannot be argued that the need to maintain security at courts and to protect the safety of the judiciary, court staff and other court users is not a pressing social need.

Proportionality is very important in these circumstances. It should be noted that the extent of any search carried out under Clause 47 is expressly limited by subsection (2), which prevents a court security officer from requesting the removal of any other clothing. However, having said that, we need to take account of the risks at any given time. So we need to be careful.

I shall deal with the point made by the noble Lord, Lord Hunt, about the breakdown of items which appear to have been confiscated by court security officers. We shall look to see whether we have any further and better data. The point deserves to be answered if possible and if it can be done at reasonable cost.

Therefore, I think we have the matter right. We must be proportionate in the exercise of the duty. We need to keep fully abreast of any developments, technological or otherwise, that make the task for those carrying out the important work of keeping our courts secure as easy, effective and as simple as we possibly can.

Clause 47 agreed to.

Clause 48 [Powers to exclude, remove or restrain persons]:

On Question, Whether Clause 48 shall stand part of the Bill?

Lord Hunt of Wirral

These debates on clause stand part give us an opportunity to reflect on the position from time to time. I did not want to interrupt the Minister again, but I asked him about cost. Perhaps he will respond to my questions on cost in his response to Clause 48 stand part.

My second point is whether there are any statistics on the number of people who have been excluded, removed or restrained, so that we can see whether this is—as many of us suspect—an increasing problem or one of small proportions. I have much sympathy with those noble Lords who regard this as a serious problem which may well be intensifying.

Thirdly, I want to make the point that as we proceed with these clauses on court security I detect increasing concern among noble Lords that we may be moving down the wrong route. I quite understand why the Government have introduced these clauses. As the Auld review pointed out, there is a disparity of security provision and powers between the magistrates' courts and the Crown Court. Only in the magistrates' courts is there statutory provision for court security. That involves a mix of in-house officers employed by magistrates' courts committees and contract officers who are procured through service contracts with private agencies.

There are no legislative provisions for security in the remaining courts. Therefore, I start with immediate sympathy for Ministers in seeking to ensure that there is a common theme in the powers and responsibilities for guards employed in all courts. But I hope that Ministers are aware that as we proceed there is increasing concern that this may not be the most appropriate way forward. A number of noble Lords will want to reflect whether there is a better way. Meanwhile, perhaps the Minister can deal with the specific points that I have raised, and those which other noble Lords may wish to raise, on Clause 48 stand part.

Lord Bassam of Brighton

Again I am most grateful to the noble Lord for his intervention on clause stand part. We are aware of the problem of court security. We have been addressing the issue. That is why we think that the approach we have adopted of putting the matter into statute is the best way to ensure that we have the right court security for the particular court that we are looking at and for the different situations that are likely to occur.

The noble Lord returned to the question of costs. I make plain that the Lord Chancellor is committed to securing appropriate funding for security improvements without passing the costs on to litigants. The noble Lord invited me to provide him with more data regarding the scope of the problem. I am happy to see what more information we can provide for him. I am happy to write to him with that and to share it with other Members of the Committee and to put a copy of that letter in the Library.

I turn to the final point made by the noble Lord, Lord Hunt, on whether we are dealing with this matter in the appropriate way. I think we are. Obviously, we need to describe in more detail how court security will work. The majority of that will probably be through regulation. We also need to be clear about what we are attempting to achieve; that is, an improvement in public safety and the security of our courts. We have demonstrated our commitment towards that today during these important debates. We now need to ensure that we establish the right legislation through the Bill to put that on a sound statutory basis. For those reasons, I hope that Members of the Committee will feel confident to support the clause as it stands.

Clause 48 agreed to.

Clauses 49 and 50 agreed to.

Clause 51 [Regulations about retention of articles]:

Lord Hunt of Wirral moved Amendment No. 82: Page 24, line 7, leave out "may" and insert "shall

The noble Lord said: The amendment inserts "shall" in place of "may" and relates to court security. Clause 51 gives the Lord Chancellor the power to make regulations about retention of articles. What regulations and timing are we talking about? Will national standards be applied uniformly? I should have thought that appropriate when dealing with articles which have been surrendered or seized. It would be helpful if the Minister could indicate how the noble and learned Lord the Lord Chancellor intends to proceed. I beg to move.

Lord Bassam of Brighton

Again I am grateful to the noble Lord for giving me the opportunity to spell out how we approach the issue. The purpose of Clause 51 is to give the Lord Chancellor a power to make regulations concerning matters connected to the seizure and surrender of articles.

It was considered unnecessary to deal with these matters under primary legislation as the provisions would be overly detailed and might conceivably change from time to time. However, it was considered desirable that the matters should be dealt with in a uniform way in all courts. Consequently, the Lord Chancellor has been given the regulation-making power to deal with the issues.

As drafted, the clause gives the Lord Chancellor a power to make regulations. Specifically, those are the provision of written information regarding the powers of retention of court security officers to persons whose items have been surrendered or seized, the keeping of records of surrendered or seized items, the period for which unclaimed items have to be kept and the disposal of such items after the time limit has expired. The amendment would turn that power into a duty.

The power to make regulations dealing with these issues has been included in the Bill in recognition of the need for a uniform approach across all courts and for people to know what is to happen to their articles if they are seized. One way of ensuring consistency is to make regulations. However, that is not the only way and whether regulations are required to deal with the issues in question is yet to be determined. It is worth emphasising that our expectation is that it will be by regulation in nearly all circumstances. It is, of course, possible that some additional guidance may also be issued.

We recognise the importance of providing publicly accessible information dealing with the issues highlighted in the clause. We wish to make it clear that regulations, or some other form of instructions, will be available in the public domain and will be produced for wide dissemination. However, we prefer the flexibility that a power confers. It is an argument that we have put forward previously but some flexibility is essential.

The noble Lord asked how the regime might work. The finer details have yet to be determined. However, information will be provided in the form of a formal receipt presented on surrender or seizure of articles.

How long an item may be kept has again to be determined. However, the policy intention is that adequate notice will be provided as to when an article will be disposed of. We hope that that offers some assurance. Some items will have to be disposed of but that will be dependent on their characteristic. Potential weapons will be disposed of through the police; and other items which may be a lesser problem or threat may well be distributed to charities for a more important and gainful purpose. Details have yet to be worked out. I hope that that answers the noble Lord's point.

Lord Hunt of Wirral

I am grateful to the Minister for clarifying the position. I shall reflect upon it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clauses 52 and 53 agreed to.

6.15 p.m.

Clause 54 [Functions of inspectors]:

[Amendment No. 83 had been withdrawn from the Marshalled List.]

Lord Hunt of Wirral moved Amendment No. 84: Page 25, line 30, after "court" insert ", save the High Court.

The noble Lord said: I had no wish to take up the time of the Committee in debating whether Clause 53 should stand part of the Bill. However, we are now moving to an important set of clauses which deals with the new independent inspectorate to be known collectively as Her Majesty's inspectorate of court administration.

In considering how the new inspection powers will operate, I recognise that at present inspection arrangements are in place only for the administration of magistrates' courts and the Children and Family Court Advisory and Support Service (CAFCASS). There are no inspection arrangements in relation to any other courts. That is evidenced by Sections 62 and 63 of the Justices of the Peace Act 1997. We are moving, therefore, into new territory. The amendment seeks on page 25, line 30, after "court" to insert "save the High Court".

Clause 54(2) establishes that the courts would be the Crown Court, county courts and magistrates' courts. Subsection (3) states: The Lord Chancellor may by order add to the list … any court

and I seek to insert, save the High Court, having jurisdiction in the United Kingdom",

or to remove any court from the list. Perhaps I may probe with the Minister how the noble and learned Lord the Lord Chancellor intends to proceed with the new independent inspectorate. I confess to a slightly cynical attitude towards inspectorates. If my memory serves me right, they are generally proposed by the Treasury in order to reduce costs and seek the value for money which Her Majesty's Treasury often believes that Ministers do not necessarily deliver without a little additional pressure from the Treasury. If the Minister assures me immediately that the provisions come direct from the heart of the Lord Chancellor's Department, I shall withdraw any cynical comment I may have made.

If it is a fact that the provision comes from the heart of the Lord Chancellor's Department, I am sure the noble Lord will seek this opportunity to clarify exactly how the powers will operate. An outside observer might feel that the traditional independence of the High Court could be called into question. Some might see it as a step in the direction of a ministry of justice rather than a Lord Chancellor's Department. I know that a debate is raging outside the House about whether there should be a ministry of justice. It would be helpful if the Minister could clarify the position on that.

Are we seeking a genuinely unified system? If so, why has a significant part of the system been left out so far? Why is the power there to add the rest of the court system, should that become necessary? Clarification would be much appreciated. I beg to move.

Lord Donaldson of Lymington

I have a semi-technical question. If we are to insert, "save the High Court", we will certainly include the Employment Appeal Tribunal which, in deference to sensitivities, calls itself a tribunal but is not at all; it is a court of co-equal status with the High Court.

However, something else worries me more. If court administration means the Court Service, I do not have much trouble with the provision. But if court administration has a wider meaning than that, and, for instance—to hark back to my days in the Court of Appeal—would involve telling the Master of the Rolls that he must or should reorganise the court's civil appeals office, I begin to get distinctly edgy.

I spent 10 years in concealed battle with the Lord Chancellor's Department. Fairly junior members of the department wrote to the court's civil appeals office demanding explanations for delays, or whatever. I told the staff of the civil appeals office that they were my staff, even if for pay and rations they were the Lord Chancellor's staff. I said that they were not to answer those letters, they were to give them to me and I would deal with them as I saw fit.

No doubt things are now much more civilised, but the point is that as long as court administration means the Court Service, that is probably all right—although, in a situation such as mine, in which I was telling members of the Court Service that they were my people, not the Lord Chancellor's, even then there would be trouble. Subject to that, as long as court administration does not mean administration by the judges, I am reasonably content. But the point about the Employment Appeal Tribunal stands, for what it is worth.

Baroness Scotland of Asthal

As the Committee will know, Clause 54 imposes a duty on the inspectors appointed under Clause 53. That duty is to inspect and report to the Lord Chancellor on the system and services that support the Crown Court, county courts and magistrates' courts. That includes not only the administration of the courts but also services such as court security, which we have been discussing. But the clause makes it clear that the inspectors will also continue to report on the performance of the functions of the Children and Family Court Advisory and Support Service, now commonly knows as CAFCASS.

I know that by virtue of the amendment the noble Lord, Lord Hunt, seeks to exclude the administration of and services provided for the High Court from any possibility of independent inspection. Clause 54 provides that the Lord Chancellor may—I emphasise that this is a "may", not a "shall"—by statutory instrument modify the list of courts subject to inspection. The main courts currently omitted from the list are, as the noble and learned Lord, Lord Donaldson, said, the High Court and the Court of Appeal.

Clearly, resources will have to be made available before any further extension to the remit of the inspectorate. But that is not the same as excluding as a matter of principle independent scrutiny of the administrative systems for the High Court and Court of Appeal. Indeed, inspectors may well want to be able to track the passage of cases as they proceed through either the criminal or the civil system. That is why we have constructed the clause as we have. Independent inspection assists performance improvement by drawing attention to discrepancies in how courts are run and identifying and promulgating best practice, thereby helping to raise standards.

I understand the cynicism with which the noble Lord, Lord Hunt, views any such statement, bearing in mind his experience of ministerial office.

Lord Hunt of Wirral

I am grateful to the noble Baroness for giving way. My cynicism has now been proved justified by the fact that the Minister is reading from a Treasury brief.

Baroness Scotland of Asthal

If only that were so. It may be a poor thing, but it is mine own.

So the whole import of what we are trying to do by means of the Bill is to improve standards and achieve consistency and continuity of those standards. The question is always: how can we do that? The inspectorate may well have a role to play. The provision would guarantee that if the Lord Chancellor felt it necessary to extend that review and inspection to higher courts, that would be possible, so that we could track things and make the appropriate adjustments as needed.

Under the amendment, inspectors could examine the administrative system and services for the Court of Appeal if the Lord Chancellor so decides at some time in future. Why exclude the administrative system and services for the High Court? We do not consider that there is any justifiable reason why the way the High Court is administered should be exempted from independent inspection.

Of course, I understand the sort of tussles that the noble and learned Lord, Lord Donaldson, may have had in the past. I infer from what he says that the Court Service has been a major improvement on the difficulties that were previously experienced. We certainly hope through the Bill to build on that beneficial experience and try to ensure that we achieve qualitative improvement across the piece. We are trying to ensure that that is transparent and that we have evidence-based policies for change. We will fully consider that matter.

Lord Donaldson of Lymington

I was certainly not criticising the Court Service as it serves the civil division of the Court of Appeal. It was superb, excellent. Whether the Lord Chancellor felt the same about it, I do not know; he may have had cause to have reservations. The noble Baroness talked about tracking cases. If she really means that, we are right into the judicial field, because tracking cases involves listing, and listing has always been a sacrosanct activity. It lies at the heart of the administration of justice and is judicial.

Baroness Scotland of Asthal

I do not disagree with the noble and learned Lord. The listing of cases is judicial. We do not seek to change that. The noble and learned Lord will know that the Court Service acts in conjunction with the judges: the judges direct how such matters are to be dealt with; and the Court Service duly and properly serves the judiciary in a way that helps us to administer justice properly. We do not intend any of that basis, with which the noble and learned Lord is so familiar, to change. We hope that that balance will be preserved.

However, there are real opportunities for us to ensure that the system is as good as it can be. We are not saying that we will use the power immediately, it merely enables the Lord Chancellor, if he deems it appropriate, so to do. I hope that the Committee will be satisfied with that assurance.

The Committee will recall that Sir Robin Auld's recommendation 120 was for an independent inspectorate of the agency, which would become responsible for the management of all courts. The Crown Court and the county courts, listed in Clause 54(2), are already under common management of the Court Service. Likewise, the High Court and Court of Appeal are already administered by the Court Service and will in due course be administered by the new agency.

6.30 p.m.

Lord Goodhart

Before the Minister sits down, perhaps she will answer a question of mine. We have had a fairly general debate on Part 5 and the creation of the inspectorate, which in principle we strongly support. However, it contains a completely open-ended power to appoint any number of inspectors. No doubt the Treasury will keep that within reasonable limits, or unreasonably tight limits. Can the Minister give some indication of how many inspectors it is intended to appoint to carry out these duties?

Baroness Scotland of Asthal

I do not have the figures this evening. It is proposed that there should be a sufficient number of inspectors to carry out the duty. Question: what is sufficient? Those issues will be finely honed when we look at the ambit of the work with which the inspectors will be entrusted and the nature of the reports they will make to the Lord Chancellor.

Members of the Committee will know how important it is, particularly in relation to the CAFCASS element of this part of the inspectorate, to keep that under review. We will be looking carefully to make appropriate judgments and assessments as to how many will be needed. I hope we shall not be unduly restricted by the Treasury. However, it is a reality that we all know that resources have to be argued for. I know that all Members of the Committee will add their strength to ours to ensure that the Lord Chancellor's Department has sufficient resources to meet those important duties. Anything Members of the Committee can do to help I am sure will be gratefully received.

Lord Hunt of Wirral

The shadow of Her Majesty's Treasury hangs over this Chamber, particularly so during the course of this debate. I was a little saddened when the Minister confessed that she was reading from her own brief. I detected in it some sentences and phrases which I long recognise as what I would term "Treasury-speak".

The fact that such an independent and impressive Minister should have so quickly succumbed to using the same or similar language is a great disappointment to those of us who admire her progress within the Government. It will certainly not hold her back in anything save our affection and admiration. Indeed, it will enhance her speed through the corridors of power. But seriously, I agree with the noble Lord, Lord Goodhart, that this is an important development. We want to see value for money. It is important to track and trace public money when it is spent on such an important service. But I agree also with the noble and learned Lord, Lord Donaldson, that at the heart of this must lie the traditional independence of the judiciary. I should like to reflect not only on the comments made by the noble and learned Lord, but also on the response by the Minister.

Baroness Scotland of Asthal

Before the noble Lord sits down—I should not like the affection in which I am clearly held to be diminished—perhaps I may remind the Committee that one of the benefits of tracking, tracing and obtaining evidence is that it helps one to better argue one's case as to why the resources are well used. So evidence cuts both ways.

Lord Hunt of Wirral

I greatly admire what the Minister has just said, apart from the split infinitive. In any event, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Clause 55 [Functions of Chief Inspector]:

Lord Hunt of Wirral moved Amendment No. 85: Page 26, line 2, at end insert "which shall highlight best practice and catalogue inefficiencies

The noble Lord said: In essence Amendment No. 85 is a probing amendment. On these Benches we wholeheartedly support the need for an annual report and welcome the provision in the Bill which compels the chief inspector to make such a report to the Lord Chancellor. However, we welcome clarification of what the report will contain. In particular, we should like it to assess issues of best practice and inefficiencies. I look forward to the Minister's response. I beg to move.

Lord Bassam of Brighton

On the face of it Amendment No. 85 is a reasonable amendment. The noble Lord, Lord Hunt, is seeking to find out what the annual report will contain. Your Lordships' House likes annual reports so it is probably fair that we say what it will contain.

The chief inspector will want to highlight best practice and look at inefficiencies. We share the aim of the noble Lord, Lord Hunt, in that regard. However, the amendment is faulty in its drafting.

One of the primary roles of the inspectorate will be to investigate and highlight inefficiencies and ensure that best practice is disseminated. The Magistrates' Courts Service Inspectorate has been doing that since its inception. Indeed, it set up a website to disseminate such information. In addition, it is worth referring the noble Lord to the annual report for 2001–02, which highlights the many areas where magistrates' courts committees have instituted best practice as a product of the reporting process.

Clause 55(1) already requires the chief inspector to report on the inspectorate's discharge of its functions. Those functions are set out in Clause 54(1), primarily to report on the court administration system and court services and on the way in which CAFCASS has performed its functions. I find it hard to imagine how that reporting function could properly be discharged if the chief inspector failed either to highlight best practice or catalogue inefficiencies, where appropriate.

On the drafting point, Clause 55(2) is permissive. The Lord Chancellor will not be obliged to give such directions but could do so if he thought it necessary. The current provisions of Section 62 of the Justices of the Peace Act 1997 do not provide for the Lord Chancellor to give directions of this nature and although he has never found it necessary to give formal directions to the current chief inspector, we felt it appropriate to give the Lord Chancellor a power similar to that of the Home Secretary in relation to the probation inspectorate. Therefore we modelled this subsection on Section 7(4) of the Criminal Justice and Court Services Act 2000.

If the Lord Chancellor is able to agree what is necessary with the chief inspector, as he always has done, then no formal directions will be given and the amended subsection will be completely redundant. The Home Secretary has not issued any formal directions about the contents of the probation inspectorate's annual report. He found no reason to do so because the contents of the report were agreed by mutual consent. The provision to give directions is there if needed.

I am interested in the points raised and may want to take away this amendment to consider whether the wording needs any adjustment. But it is perhaps worth looking at some of the issues which have been covered by the Magistrates' Courts Service Inspectorate over the past few years. A thematic review was conducted on case administration in family proceedings courts; on custody arrangements in magistrates' courts; on the justice's chief executive's remuneration; on the recruitment of senior managers in the magistrates' court service; on magistrates' courts and fine enforcement; on information for management on core performance measures and a look at the relationships between magistrates' courts committees and local authorities. Fairly extensive reviews have been undertaken. No doubt, similar sorts of thematic reviews could be conducted across the Court Service more generally. I am even told that there was a review of the use of sign language and foreign language interpreters in magistrates' courts. We would expect that tradition and the excellence that has been brought to bear on the Magistrates' Court Service to be more widely extended and developed as the inspectorate develops its role.

Lord Hunt of Wirral

I have a confession to make to the Committee. To some extent, the Minister was probably unaware that he was skating on thin ice, in particular when he said that he would like to take away the amendment to see whether the wording needed any adjustment. It does not. They are the words of the noble and learned Lord the Lord Chancellor. The directions have already been given. In describing the wording in Part 5, the noble and learned Lord the Lord Chancellor, said: It will ensure an improved and more consistent level of service to all court users by highlighting best practice and reporting on inefficiencies".—[Official Report, 9/12/02; col. 18.] If the Minister values his position, and I am sure that he does—we all do he might agree that the words of the noble and learned Lord the Lord Chancellor do not need any adjustment. In the mean time, I shall reflect on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clause 56 agreed to.

Clause 57 [Head and Deputy Head of Civil Justice]:

On Question, Whether Clause 57 shall stand part of the Bill?

Lord Carlisle of Bucklow

I hesitate to raise a matter at this late stage in the Committee. I merely ask whether this provision is necessary. Must we now have two additional bodies—the head and the deputy head of civil justice? We have a Lord Chief Justice, a Master of the Rolls, a Vice-Chancellor and a President of the Probate, Divorce and Admiralty Division. What will be the role of the two new appointees? Is the Minister satisfied that they are required, and that their role is proper? Will their role be administrative only, or will it be judicial?

Clause 57(2) states that no person shall be appointed to that office, unless he is—

  1. (a) the Master of the Rolls,
  2. (b) the Vice-Chancellor, or
  3. (c) an ordinary judge of the Court of Appeal".
Will the appointee be able to hold one of those positions also? If, for example, the current Master of the Rolls is appointed as head of civil justice will a new Master of the Rolls be appointed? Will the provision mean two additional judges in the Court of Appeal, or will the posts be filled by those already there? Those are merely probing questions. My main concern is that the civil justice system has got along well for many years without either of the proposed offices. Have they been fully evaluated? Is the Minister satisfied that they are needed?

Baroness Scotland of Asthal

I hope that the noble Lord will be comforted to know that the issues have been fully discussed in the judiciary. They stem from the Woolf reforms. I shall outline the ideas central to those reforms. Responsibility for the control of litigation had to pass from litigants and their advisers to the courts. That was to be achieved through a proactive system of case management for which the judiciary would be responsible. There should be a unified set of rules to replace those of the Supreme Court and the county court. There should be reform aimed at better co-ordination of the practices and deployment of the judiciary in the High Court and between the High Court and the county court.

For the proposals of the noble and learned Lord, Lord Woolf, to work in a single, co-ordinated, efficient and flexible system of civil justice, case management and judicial deployment, he recommended that there should be a senior judicial figure responsible for the whole corps of judges handling civil work, from district judges to High Court judges. That figure would have the same influence over civil judges as the Lord Chief Justice has over the criminal courts. The appointee must play an important role in encouraging the new team spirit and ensuring that judges at all levels work together to achieve a new culture of civil litigation that better meets the needs of court users. That is the role of the head of civil justice.

This is the first suitable legislative vehicle since it became clear that the post of the head of civil justice would be required on an ongoing basis. A deputy head of civil justice will be appointed only when necessary. It is considered that there is a need at present. The head of civil justice and the deputy head, where appointed, are to be ex officio members of the Civil Procedure Rule Committee. No other specific functions, duties or powers to be attached to the posts are to be provided in the statute.

I hope that that helps to explain why the new roles are considered helpful. They help the management of, and deployment of, the judiciary across the piece. We have responded to the issue throughout the Bill. We have tried to listen both to those responsible for administering justice in court and to court users in order to fashion provisions in a way that better delivers, or better helps them to deliver, the outcome that we seek. The provision is just another response to the requests that have been made. It is perfectly reasonable and proper for judges to seek to so arrange themselves.

Lord Carlisle of Bucklow

My second question was whether the head and the deputy head of civil justice will also have a judicial role, or whether they will be full-time administrators. Can the head of civil justice also hold the post of Master of the Rolls?

Baroness Scotland of Asthal

They will be judicial roles. It is a burden that, in addition to sitting in a judicial capacity, judges have been instrumental and helpful in ensuring that our courts work properly. Noble Lords know the credit that should be given to judges for undertaking those duties. They are usually additional to their duties as full-time judges. We now have designated judges for various circuits. Presiding judges take on additional duties in that capacity. We often hear our judges being inappropriately denigrated. I take the opportunity to say how much we value the incredible amount of work that they do in that regard.

Lord Donaldson of Lymington

I support the Minister's views. When I was Master of the Rolls, it seemed absurd that, strictly speaking, my remit did not extend beyond the Court of Appeal. To some extent I got over that by having discussions with the noble and learned Lord, Lord Lane. But he took the view that civil courts at High Court level—known as assize courts at the time—were his problem because they were part of the Queen's Bench Division rather than mine. That was illogical. He had plenty to do if he confined his work to the criminal courts at every instance. It would have been much more sensible for me to have responsibility for civil courts at every instance. I did not intend to go pottering in the circuit courts to have a look-see. I merely wanted to seek a strategic direction. It did not happen then, but I am delighted that it is happening now.

Lord Hunt of Wirral

I should like to thank my noble friend Lord Carlisle for raising an important debate on clause stand-part. I agree with the comments made by the noble and learned Lord, Lord Donaldson. I join the Minister in paying tribute to the judges and to court staff for the tremendous work that they do.

However, the Minister widened the debate to cover the state of the civil justice system with her comments about the present situation. We shall be turning to financial matters and the question of court fees when we discuss Clause 87. I should like to flag up with the Minister concern that all is not well with civil justice in the United Kingdom at present. That is not just my view. On 1st December 2002, speaking on "Newsnight", the Master of the Rolls, the noble and learned Lord, Lord Phillips of Worth Matravers, said that the civil justice system was creaking at the seams and could well fall apart.

When I read that on the BBC's website, I wanted more detail and asked for the full transcript. The Master of the Rolls said: It is creaking at the seams because of lack of resources". He continued: We have to modernise and the court service had prepared a magnificent modernisation programme. All it needed was the funding, and in this spending round we haven't had it. If we don't modernise, the system is going to fall apart". He later stated: We have been keeping going as a result of the devotion of the court staff and the judges, in conditions which are hardly viable. We can't go on forever". The Minister heard the speech at Second Reading of the noble and learned Lord, Lord Woolf, the Lord Chief Justice, who was previously Master of the Rolls and introduced the civil justice reforms. I am sure that we shall return to this issue, but I did not want this brief debate on the civil justice system to pass without reminding noble Lords of the words of the noble and learned Lord, Lord Woolf. He said: Throughout England and Wales, courts are deprived of the technology which has been repeatedly promised and which should be at the heart of the civil justice reforms". He also commented that our commercial court at the present time is a disgrace and, of course, should be the envy of the world. He concluded his comments stating: That position is not tolerable".—[Official Report, 9/12/02; col. 28] In the Minister's winding-up speech on that occasion, in referring to the speech made by the Lord Chief Justice, she said: The noble and learned Lord, with his usual precision, has highlighted a number of issues that I am sure will excite our interest for some time". She continued: I dare not go further".—[Official Report, 9/12/02; col. 83.] Perhaps she might do so on this occasion.

Baroness Scotland of Asthal

The noble Lord, Lord Hunt, tempts me. But one of the wonderful things that I have learnt from being a Minister, speaking from the Dispatch Box, is to resist such temptation.

Clause 57 agreed to.

Clause 58 [Ordinary judges of the Court of Appeal]:

Lord Donaldson of Lymington moved Amendment No. 85A: Page 27, line 17, leave out from "styled" to end of line 18 and insert ""Justice of Appeal"

The noble and learned Lord said: We now move on to a rather different subject matter. This amendment, and the provision in the Bill itself which I seek to amend, is concerned with style. But not style in the sense in which we all refer to it in everyday language. In this context, style means the formal label which is attached to an office. Perhaps I may illustrate that best by looking at Section 4(2) of the Supreme Court Act 1981. This provides that the puisne judges—I trust that Hansard will spell that correctly—of the High Court shall be styled justices of the High Court.

I doubt whether any judge of the High Court has ever been concerned with the expression, "justices of the High Court", once he had read it in his patent of appointment. In his personal social capacity he—in the case of male judges—would be addressed, being a knight, as Sir John Whatever. In the case of lady judges, they would be addressed as Dame Mary Whatever. In their professional capacity, male judges would be known as Mr Justice X and lady judges known as Mrs Justice X. Neither has the slightest to do with the style as laid down in the statute. It is a matter of supreme unimportance in the High Court as to how judges are "styled".

As regards the question of the Court of Appeal, the current position is that' there are three lady members. I looked at the entries in Who's Who—my copy is a little out of date so I have only two of the lady members' entries to read. One is Dame Brenda Hale; the other is Dame Mary Arden. The entry for Dame Brenda Hale reads: HALE, Rt Hon. Dame Brenda (Marjorie), DBE 1994; PC".

It goes on to give her professional appellation: Rt Hon. Lady Justice Hale".

That is exactly parallel in the entry for Dame Mary Arden. And they are in bold. After the entries, in ordinary type, it says, "a Lord Justice of Appeal".

I should like to make matters clear. Neither the 1981 Act, as originally enacted, or as proposed to be amended, would affect Dame Brenda Hale's social and personal appellation or her professional appellation. It is true that the professional appellation has changed since I was last involved. It was described to me as a practice direction issued by the noble and learned Lord, Lord Bingham of Cornhill, when he was the Master of the Rolls. I have no problem with that whatever.

But Amendment No. 85A casts doubt on the unisex character of a large number of historic titles. I am indebted to the President of the Family Division for the term "unisex"—I had not thought of it. I thought of "titles which have no gender indication of themselves", but unisex puts it more neatly. I cannot possibly provide a complete list but I had a quick look in the Reader's Digest dictionary, which is an odd source but it yielded the following: the Lord Advocate, Lord of Appeal in Ordinary, Lord Chamberlain, Lord Chancellor, Lord Chief Justice, Lord Lieutenant, Lord Mayor, Lord of the Manor, Lord Privy Seal, Lord Provost and Lord Steward—there must be others.

The view which I believe was taken at one time by parliamentary counsel was that no change was necessary because the Interpretation Act took care of it. But I do not think that that was an entirely satisfactory answer.

I can understand the ladies' feeling that they ought not to be dependent on the Interpretation Act. However, if the provision is altered, one must be careful as to how it is altered. My amendment seeks to substitute for the awful mouthful "Lord Justice of Appeal" or "Lady Justice of Appeal"—it does not add "as the case may be," but it might have done—the simple remedy of striking out the word "Lord". One is then left with "Justice of Appeal", which is an appellation used in some Commonwealth countries.

It exactly describes what the judges are and it causes no problems or casts doubt on the unisex character of other offices—many of which have been held by women, none of whom have suggested a change. We have even had the Lord President of the Council in this House and I know of no suggestion that that should be changed. I suggest that if the ladies want a change, let them have a change. We are not tampering with what they would be known as socially or professionally. We are examining only the formal label.

Let us, for goodness sake, have "Justice of Appeal", which avoids all those problems and, so far as I can see, must meet whatever are the legitimate aspirations of these ladies. I have doubts as to whether the Minister will give me much help today, but if not perhaps she will explain to me in words of one syllable the advantage of having Lord Justices of Appeal or Lady Justices of Appeal as compared with Justices of Appeal. I commend the suggestion and hope against hope and without expectation that I shall receive some encouragement. I beg to move.

7 p.m.

Lord Goodhart

I support the amendment. I say no more than that for two reasons. The first is that the noble and learned Lord, Lord Donaldson of Lymington, has expressed it fully and clearly and no additional explanation is required. The second is that I do not believe that this is an amendment on which we should spend more than 10 minutes.

Baroness Anelay of St Johns

I am afraid that the 10-minute barrier may just be beaten, but we will have to see. I, too, support the noble and learned Lord's amendment. He spoke with great clarity. As he made clear, he is not talking about political correctness and he has put the whole debate in its right framework. We need accurate descriptions which do not offend the office-holder but do convey to the public what someone is doing. He has found the right solution with "Justice of Appeal".

My question relates to whether there is a problem in any event. The noble and learned Lord referred to the fact that there are three lady members of the Court of Appeal. Have the Government received representations from the judiciary, the Law Society or the Bar that they do not like the current statutory definitions. If so, I should be interested to hear of them. In this House, for example, I have not heard Members who are ladies objecting to being called a Peer. We are well aware that a Peeress is not a Peer but someone who is married to a Peer. There may well therefore be occasions when the feminine use is not an accurate description of the person who holds the post. I shall be interested to see how the Government reached their current state.

Finally, I noticed that the noble and learned Lord, Lord Donaldson, referred to other office-holders from his Reader's Digest list and to that of Lord Chancellor. I was interested in the fact that when the noble and learned Lord the Lord Chancellor launched the Bill, the only conversation he had with the press about titles was with regard to that of Lord Chancellor. He put up the bubble for the cartoonists to use by saying that it would not offend him at all if there were soon to be a Lady Chancellor. Let us not pussyfoot around the matter: if by any remote chance the current Lord Chancellor were to retire before the next general election—and I make it clear to my political masters that I am talking only about the time prior to the next general election—the only person who is in the running to be the first lady Lord. Chancellor is in the Chamber now, and it certainly is not me.

Baroness Scotland of Asthal

I am grateful to the noble Baroness for her extravagant comment. She normally shows excellent judgment and I am sad to see that she has departed from it on this occasion.

I say straightaway that I see the attraction of the simplicity of the formula proposed by the noble and learned Lord, Lord Donaldson. However, in response to the comments of the noble Baroness, Lady Anelay, it is only right to say that there is a long-standing commitment. It was made by my noble and learned friend the Lord Chancellor to the President of the Family Division, in particular, in relation to Clause 58. The clause is put forward in order to give voice to that commitment.

Clause 58 is drafted and is intended explicitly to recognise the female members of the Court of Appeal and acknowledge existing practice in the way in which they are addressed. It enshrines in legislation the position as it has stood since the noble and learned Lord, Lord Bingham of Cornhill, issued a practice direction in 1994 when he was Master of the Rolls to afford the current President of the Family Division the courtesy of being referred to as "Lady Justice" Butler-Sloss.

If the Bill were to apply the construction favoured by the noble and learned Lord, the prefix "Lord" and "Lady" would simply be left to convention. While of course I agree that it is likely that the convention will persist, the Government believe that it is desirable to fulfil a long-standing commitment to the serving female members of the Court of Appeal and their successors to equalise the position. Therefore, it is an honourable support of what we had promised to do.

I should tell the Committee that there are those female judges who are of the view that to fail to recognise the male and female styles of office would be quite wrong and that to make the office gender-neutral rather than recognise the female style would be offensive. Furthermore, serving male members of the Court of Appeal would be alarmed to lose the appellation "Lord". Those are remarks made outside and I do not necessarily comment one way or the other. However, I do say that this is a long-standing commitment and we believe it only right and proper that we honour it.

Lord Mackay of Drumadoon

Would the Minister care to comment on one practical consequence of the noble and learned Lord's amendment? In the Law Reports, judges at first instance are referred to "J". In the Court of Appeal, they are referred to "LJ". One would therefore have "Hale J" or "Hale LJ". How would Jane Brenda Hale be referred to were she a Court of Appeal judge known as a "Justice of Appeal"? One would need to have more than "J" to distinguish her from when she sat on her own. If a new system had then to be introduced—that of "Hale J of A"—people looking at Law Reports might wonder why for years judges were known as "LJ" but are now known as "J of A". That seems to me to be a mouthful.

In the jurisdiction where I serve as a High Court judge, we call male judges Lord X and we call lady judges Lady X. That causes us no practical difficulty at all, but perhaps that is one example of how the Scots take a slightly more enlightened approach to matters than do our brothers and sisters south of the Border.

Baroness Scotland of Asthal

The noble and learned Lord is certainly right to say that if we leave it as "Lord Justice" and "Lady Justice", then the initials will remain as "LJ" and "LJ". I do not think that it is necessary for me to explore what other appellations might be attached if we moved to using simply "J".

Lord Renton

Before the noble Baroness sits down, perhaps I may raise a point which has not been mentioned so far. Various High Court judges and women members of the Court of Appeal are awarded the DBE; they become Dames of the British Empire. I hope that my ignorance may be forgiven, but should they be called Dames, Ladies or what?

Baroness Scotland of Asthal

I think we have settled the matter by saying that it is preferable for them to be called "Lady Justice" as opposed to "Dame". If we were in America, I suppose that another construction could be put on it.

Lord Donaldson of Lymington

I find it surprising that this has been put on the basis of honour. I understand that some years ago the present Lord Chancellor made a commitment to alter the position of lady members of the Court of Appeal so that they could be called "Lady Justice". That has now taken place. However, I cannot believe that his commitment was to a particular form of words, which is what is now being suggested.

I have not met any male judges who have commented other than to say that this is a matter of indifference. So we are left in the position that two lady members of the Court of Appeal have said, "We need statutory protection". Does that make sense? Has the Lord Chancellor gone further by saying, "Of course you can have statutory protection, but not necessarily in this form". If the proposal is a better form, then so be it.

In answer to the point made about law reports, I strongly suspect that they would continue to be described as "LLJ", and quite rightly so. However, if one wanted to be purist about the point, it would not be "J of A", but "JA" and "JJA". We have been told that the Scots are ahead of us in this matter—of course they always are; I say that in order to bring the noble and learned Lord on to my side—but in effect we are seeking to do the same thing. It would be "Lord Justice Smith" and "Lady Justice Hale". That is exactly how it is done in Scotland and thus I do not see any problem here.

I have heard no reasoned support for the change proposed in the Bill as opposed to the change that I have suggested other than that, without the benefit of argument, the noble and learned Lord the Lord Chancellor committed himself to a particular form some years ago. I think that it is a terrible comment on the legislature of this country if we are to be stuck with that.

Baroness Scotland of Asthal

I should make it plain that the views expressed are not simply those of the current female judges of the Court of Appeal; they are held by other aspirants to that post.

Lord Donaldson of Lymington

I am obliged to the noble Baroness. I was unable to undertake a trawl. It may be that when other noble Lords read this interesting exchange in Hansard, it will be suggested that I return to the matter. I shall reserve that right, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

7.15 p.m.

Clause 59 [Power to alter judicial titles]:

Lord Donaldson of Lymington moved Amendment No. 85B: Page 28, leave out line 2.

The noble and learned Lord said: I am sorry to take the time of the Committee once more and I apologise in particular to the noble Lord, Lord Goodhart. I can deal with this point very briefly.

Clause 59 is concerned with judicial titles and sets out a list of what are said to be such titles which the Lord Chancellor wants to take the power to alter. Included in that list is the Master of the Rolls. I want to make it clear that I do not seek to make a NIMBY point, but the fact is that the Master of the Rolls is not a judicial title. I was sworn in as Keeper or Master of the Rolls and Records of the Chancery of England. That is not simply a matter of form.

The office goes back certainly to Norman times. The earliest record of a Lord Chancellor that I could find was a reference to Lord Chancellor Maurice, who became the Bishop of London in 1086. That was the historic function of the Lord Chancellor; that is, to keep the king's conscience. In other words, he was the king's chaplain. I do not doubt that in those days the office holder meddled in politics, as does the present Lord Chancellor.

In parallel with that office, and I suspect at much the same time although the first record I could find refers to 1268, was the office of the Master of the Rolls, who acted as the king's secretary responsible for keeping copies of all state documents. That job has never changed and it is not simply a formal description; you actually do it. When I was Master of the Rolls I was asked to authorise the transfer of a document which, for various reasons that I need not go into, had been kept in the Lord Chancellor's safe. The document was to be transferred to Her Majesty's family archives at Windsor instead of back to the Public Record Office, where it ought to have been sent. I executed an order and even imposed conditions. I had to be satisfied that Her Majesty wanted the document and that the Chancery of the Rolls of England would be properly annotated to show where the document had been stored.

In addition I was responsible for approving or disapproving—usually disapproving—arrangements for the custody of manorial records. Anyone who tried to export a manorial record found that I would not let him do so. That was an active role. I was also responsible for registered deed polls involving changes of name. That function produced a crisis. A gentleman wanted to register a change of name, but there were solid objections to allowing him to do so. I stated immediately that someone else would have to deal with the matter because, first, I knew the gentleman, although not well. More seriously, however, my son had been working for him and was in the process of suing him for his fees. However, I discovered that I could not give up the function because there was no deputy. The statute has been changed to provide that the Master of the Rolls can appoint someone to act on his behalf. I have mentioned those points to show that the office is alive and well.

That covers the day job and I turn now to the moonlighting function of the Master of the Rolls, if I may put it in those terms. Over the years the extra functions of the Master of the Rolls have taken many forms. At one time the Master was also the Speaker in the House of Commons. Indeed, one of my more distinguished predecessors, Sir John Trevor—I hope that I do not defame him—was the Speaker towards the end of the 17th century. Sir John incurred the wrath of the House of Commons by taking a bribe of £1,000 from the Corporation of London to expedite the passage of a corporation Bill. The Commons thought that too much and showed signs of removing him as Speaker.

Sir John Trevor knew a trick or two; he knew that the House of Commons had no jurisdiction if the Mace was not in its place, so he took it home with him. For four days there was an impasse. Eventually the situation was resolved. He ceased to be Speaker, but he remained Master of the Rolls for another 20 years. So the jobs have varied a great deal.

The only reason why I and my successors as Master of the Rolls have been able to perform a judicial duty at all is that the Supreme Court Act provides that we are ex officio judges of the Court of Appeal. So it is entirely inappropriate that the title of Master of the Rolls should be included on this list. I venture to suggest that it would be a major legislative solecism if it remained there. I hope that this amendment will have more success than the previous one. I beg to move.

Baroness Anelay of St Johns

The noble and learned Lord has given a fascinating exposition of the role of the Master of the Rolls. The post has been around for several centuries and I should have known more about it than I did. It is certainly still alive and kicking.

I look forward to the Minister explaining what the Government consider to be the legal position and whether they consider that the post is indeed a judicial office. I was intrigued by the parting shot of the noble and learned Lord that the Master of the Rolls sits as an ex officio judge in the Court of Appeal. If the post of Master of the Rolls is to remain listed and the Government consider it to be a judicial office, and may therefore wish to change it in the future, do they have any such intention at this time and, if so, what name are they considering?

I noticed that in introducing his amendment the noble and learned Lord referred to being sworn in as "Keeper" and Master of the Rolls. Will we have "keepers" in future?

Baroness Scotland of Asthal

I am again grateful to the noble and learned Lord for his erudite exposition and for his reminder of the historical route from which the post of Master of the Rolls derived. Let me say straight away, by way of reassurance, that the title of Master of the Rolls will not be changed. The Lord Chancellor does not at present have any plans to make an order altering either the title of the office or the way in which its distinguished holders may be styled.

The Government wished to include in the Bill a general power to alter judicial titles if the need arose for modernisation purposes. It may be the case that where the functions of a post, very often not stipulated by statute, change, it may be helpful to court users to change the name to reflect that. The Government took the view that it was not desirable to pick and choose between titles, however unlikely substantive changes to some of them may be—particularly the most senior.

The clause has been drafted to include all judicial titles in the Supreme and county courts. However, I am aware that the noble and learned Lord has not tabled the amendment, as he put it, because he wants to be "NIMBY" in relation to this matter, but rather because he believes that the title is not judicial. That is where we part company. Far be it from me to question the noble and learned Lord's wisdom on this matter but, although the Government accept that it does not have its origins in a judicial title, over the years the title has become one which most people would accept is appended to a judge.

There are numerous examples of that. Section 2(2) of the Supreme Court Act 1981 refers to the Master of the Rolls being one of the ex officio judges of the Court of Appeal; Section 10 of the same Act sets out the procedure and eligibility for appointment to a number of offices, including Master of the Rolls, under the title "Appointment of Judges of the Supreme Court", and so on. So, although it may not have started off with a judicial role, it certainly has one now.

It is fair to say, therefore, that it is commonly acknowledged that the Master of the Rolls carries out judicial functions and that, to use the term of the noble and learned Lord, being a judge is his day job.

Lord Donaldson of Lymington

It is not my day job.

Baroness Scotland of Asthal

The Master of the Rolls has an important judicial role. To return to my earlier point, it would not be right to single out this particular judicial title and exclude it from those listed in Clause 59. Given my reassurance in relation to the continuance of the title of Master of the Rolls, I invite the noble and learned Lord to withdraw his amendment.

Lord Donaldson of Lymington

I shall certainly withdraw the amendment for the time being, and probably for ever. My parting shot to the Minister is that if the Government want to do that, why do they not alter the heading of the clause from "Power to alter judicial titles" to "Power to alter titles"? I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume. In moving the Motion, I propose that we return to this business not before twenty-five minutes past eight o' clock.

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

House resumed.