HL Deb 11 February 2003 vol 644 cc637-62

House again in Committee on Clause 59.

Baroness Anelay of St Johns moved Amendment No. 86: Page 28, line 23, at end insert and have regard to their recommendations made as a consequence of that consultation

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 142.

The clause states that the Lord Chancellor can make changes to judicial titles, as we were discussing earlier, only if lie has first consulted the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the vice-chancellor.

The amendment is a simple probing amendment, as it asks what would happen if those people disagreed with the Lord Chancellor. What regard would he then have to their views? The amendment is merely a convenient peg on which to hang the question to the Government.

Amendment No. 142 is exactly the same kind of probing amendment with regard to Northern Ireland and judicial titles there. I beg to move.

Lord Borrie

My understanding is that there is a statutory requirement to consult; the noble Baroness will no doubt be pleased that the provision states that the Lord Chancellor "must" consult. When there is a statutory requirement to consult X and Y, that surely means genuine consultation in which the consultees are given precisely the information that they need in order to say something sensible in response. Their comments and recommendations would be properly considered. That is what consultation means.

In other words, the Lord Chancellor has regard to what the consultees say. Of course, that does not mean that he has to agree with it, but he must have regard to it. In short, it therefore seems that amendment is quite unnecessary.

Lord Waddington

I certainly agree with the noble Lord, Lord Borrie, that there is no point in consulting if, when one has consulted, one does not pay the blindest bit of attention to what comes out of the consultation exercise. I am sure that we would all agree with that. One would like to think that the amendment is entirely unnecessary, as he suggested. One would like to think that the Lord Chancellor, having consulted, would have regard to the recommendations that he received. I am sure that we are all at one in that. Unfortunately, history is not on the side of the noble and learned Lord the Lord Chancellor. He does not have a good track record.

I am sorry to bore the noble Baroness, but I still think that the matter is very important. There was consultation over the appointment of magistrates in the county palatine of Lancaster. At the beginning of 2000, an elaborate consultation procedure was launched and an enormous number of people of great importance in the county palatine were consulted: the 15 Members of Parliament in Lancashire; the 28 Members of Parliament in Greater Manchester; the 16 Members of Parliament in Merseyside; the leaders of the Lancashire County Council, the Blackburn with Darwen Borough Council; the leader of the Blackpool Borough Council; the leader of goodness knows how many other local authorities in the area; the vice-chancellor of the county palatine; the presiding judges on the northern circuit; the northern circuit judges: the resident judges in each Crown Court centre in the duchy area; honorary recorders; and the attorney-general of the Duchy of Lancaster. One can go on and on until one comes to the really humble people at the bottom of the list: former chancellors of the duchy and life Peers who have associations with the duchy area.

That is where I come in and that is why I know the whole story. A great consultation exercise was launched and the result was an almost unanimous thumbs down to the proposal that justices of the peace should be appointed by the Lord Chancellor in the duchy area, rather than as had been the case for hundreds of years, by the chancellor of the duchy. The Lord Chancellor has not paid the blindest bit of attention and, regardless, has incorporated in the Bill an amendment that reverses the result of the consultation procedures that were undertaken in such detail in 2000–01. The case is made for Amendment No. 86.

8.30 p.m.

Baroness Scotland of Asthal

I regret to say to the noble Lord, Lord Waddington, that I disagree that the case is made for Amendment No. 86. We respectfully suggest that this amendment is not necessary. As I said earlier, in relation to consultation the court has made absolutely clear the proper interpretation that that phrase should be given. I respectfully agree with the noble Lord, Lord Borrie. Lord Justice Simon Brown in Devon County, Council ex parte Baker (1995) (All England Reports 73, page 91) drawing from earlier authorities, described the requirements of consultation thus: that the product of consultation must be conscientiously taken into account in finalising any …proposals".

Lord Waddington

I do not want to waste time, but one must be clear about the history. This is not a case of the consultation process taking place and being immediately rejected by the Lord Chancellor. A consultation process took place which was accepted by the Government. The Government accepted the conclusions of the consultation process. I have a letter from the then Chancellor of the Duchy of Lancaster saying that as the proposals had no support in the county palatine, they would not proceed with them. That is the history of the matter.

Perhaps rather rudely, I wrote back to the then Chancellor of the Duchy of Lancaster, Mo Mowlam, saying, "My advice to you is perfectly simple: tell the Lord Chancellor to get his tanks off your lawn". Apparently she did so and the net result was that the Government did not proceed with the proposals. Having gone through that elaborate exercise with full consultation resulting in a resounding no and that no being accepted by the Government, I want to know why the Lord Chancellor uses this Bill to reverse the decision so recently made by his own Government.

Baroness Scotland of Asthal

I accept that the noble Lord, Lord Waddington, is excited about the issue in relation to the Duchy of Lancaster. On the previous occasion when we raised this matter in its proper place I promised the noble Lord that I would write to him. I shall do so. We are making inquiries as to the precise nature of the consultation. I remind the noble Lord that the present Bill arose as a result of a desire to unify the system, which is currently separated in the way that we have discussed at length. I hope the Committee will accept that this situation is significantly different from that which prevailed at the time the noble Lord described because of the discussions as to how matters should be arranged between the Duchy and the Lord Chancellor.

This is not a case of tanks on the lawn. The justices, whether lay or professional, provide a service. It is an honourable service and we seek to ensure that those who are entrusted with judicial office serve the people of this country in the most efficient and effective way and deliver a system of justice which works not for the benefit of those people who operate it, but for those who come before the courts seeking justice.

I understand the passion with which the noble Lord speaks, but I must say that it has reached a sad pass to talk about justice and its administration in terms of tanks on the lawn. There are no such tanks. There is one tank. That is justice. It is moving in one direction in order to give that justice to the people of this country.

I return to Clause 59 and to the consultation that the Lord Chancellor will be obliged to undertake with the most senior members of the judiciary as a result of this provision. It is right that we should bear in mind the history. We are in the happy position that Lord Chancellors, no matter of which complexion, have always enjoyed the benefit of good working relations with their senior colleagues. We do not anticipate that there will be any change in that. There is a huge level of respect between the Lord Chancellor and the senior judiciary. There is no reason to suppose that that will not continue.

As regards consultation, there is a duty to consult, as the noble Lord, Lord Borne, said—and I know that noble Lords will be delighted by the way in which it is phrased. That consultation must be a real consultation. We hope that the happy position between the noble and learned Lord and his brother judges will continue. I hope that satisfies the noble Baroness and noble Lords who have spoken most helpfully.

The noble Baroness asks what happens if they all fall out. So far the judges have been of good judgment. They have behaved judiciously and have been able to reach honourable compromises in the interests of justice. I hope that anyone seized of the offices that we have before us will continue to use that good judgment.

Baroness Anelay of St Johns

I am grateful to the noble Baroness for her response. My noble friend Lord Waddington is right in saying that the quality of consultation is important. The Minister is right to point out that those who will be consulted in this specific circumstance are a limited but powerful group of people, to whom I am sure the Lord Chancellor should have due regard or else he might find their tanks on his lawn. So there could be difficulties. I certainly pay due regard to what the noble Lord, Lord Borrie, said.

Perhaps I had a rather mischievous reason for tabling the amendment. It struck me as intriguing—I say no more—that a statutory consultation is so clearly on the face of the Bill with regard to judicial titles and yet as regards the moot matter of the appointment of justices' clerks and their disposition, which we discussed earlier, there is no statutory consultation. I may return to that matter on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 agreed to.

Clause 60 agreed to.

Schedule 4 agreed to.

Clause 61 [Judges having powers of District Judges (Magistrates' Courts)]:

[Amendments Nos. 87 and 88 not moved.]

Clause 61 agreed to.

Clauses 62 and 63 agreed to.

Clause 64 [Criminal Procedure Rules]:

On Question, Whether Clause 64 shall stand part of the Bill?

Lord Hunt of Wirral

It is worth reflecting on the fact that the phrase which seems to have excited the Minister involving tanks on lawns was coined by a previous Labour Prime Minister. We should respectfully remind ourselves of that fact, although on this occasion it was utilised in a moderate discussion by my noble friend Lord Waddington. For the assistance of noble Lords, perhaps we may indicate that we shall return to the issue in debate on Clause 98 and the repeals schedule.

We are now considering rules of court—they will be known as criminal procedure rules—which govern the practice and procedure to be followed in the criminal courts in England and Wales. It is an important provision. The noble and learned Lord the Lord Chief Justice referred at Second Reading to the provisions. He made the valid point that the new criminal procedure rule committee would face a considerable challenge. He reminded us that the plethora of criminal justice legislation of recent years has created a criminal justice system, that is highly technical and of labyrinthine complexity".—[Official Report, 9/12/02; col. 26.] We would do well to reflect on that when we consider the rules. It would be helpful if the Minister could outline the timing and procedure now to be followed in establishing this important innovation.

Clause 64(3) confirms that criminal procedure rules may be made, for different cases or different areas". I understand from the Explanatory Notes that that distinction is intended to enable the committee to make rules in support of new initiatives. It would be helpful if the Minister could outline the initiatives that Ministers have in mind. I understand that at present they are considering a number of pilot schemes. Again it would assist the Committee if we were to have a resume of the pilot schemes to be established.

Clauses 64 and 65 are important clauses. We wish the criminal procedure rule committee well. However, it would be of great assistance if we could hear from the Minister as to how the rules are to be formulated and proceeded with.

Baroness Scotland of Asthal

This clause details membership of the new criminal procedure rule committee, which is to include representatives from across the criminal justice system and those voluntary organisations with a direct interest in the work of the criminal courts.

The committee will include as members the judiciary, the magistracy, representatives from both branches of the legal profession, the police and representatives of the other criminal justice departments. The wider community will be incorporated with the inclusion on the committee of representatives of voluntary organisations with an interest in the workings of the criminal courts. Therefore, those with a direct interest will be able to participate in the rule-making process. In his amendments to Clause 65, the noble Lord, Lord Hunt, proposes amending the membership of the criminal procedure rule committee and removing certain words from the Bill.

Lord Hunt of Wirral

It may be of assistance to the noble Baroness if I say that I was speaking merely to the establishment of criminal procedure rules under the Clause 64 stand part debate and have not yet moved—nor has the Committee—to the amendment to which I think that she began to refer.

Baroness Scotland of Asthal

I thank the noble Lord for his intervention, because I thought that he was moving Amendment No. 89.

As the noble Lord said, the case progression project is developing pilots of procedures that will lead to a quicker and more effective justice. The rules committee will develop rules that can be expected to support further development of the case progression project. I hope that that is helpful in describing to the Committee how we shall proceed.

Clause 64 agreed to.

Clause 65 [Criminal Procedure Rule Committee]:

8.45 p.m.

Lord Hunt of Wirralmoved Amendment No. 89:

Page 30, line 30, after "Officers," insert— "(k) one person who shall represent Victim Support,
  1. (1) one person who shall represent the National Association of Citizens' Advice Bureaux,"

The noble Lord said: We now move to the amendments to Clause 65. Perhaps, in responding to these amendments, the Minister may deal with the other questions that I posed in the Clause 64 stand part debate, to which she has not yet had a chance to respond. Those are the questions of timing: of how new initiatives are to be evolved; of what sort of pilot schemes are contemplated; and, indeed, of what sort of initiatives have given rise to the distinction in Clause 64 referring to different cases or different areas. I raise that point only because the Explanatory Notes make much of it and it would be helpful to hear an explanation.

As the Minister predicted, in moving Amendment No. 89 I suggest that Clause 65(2)(k) is unsatisfactorily worded because it suggests that on the procedure rule committee should be: two persons who appear to represent voluntary organisations with a direct interest in the work of criminal courts".

I find that wording unsatisfactory. I therefore move Amendment No. 89 and speak to Amendment No. 90, which, I think, would give a better opportunity to two important voluntary organisations that not only appear to have but actually have a direct interest in the work of criminal courts.

I speak of course of Victim Support and the National Association of Citizens Advice Bureaux. I suppose that I ought to declare an interest as president of my local citizens advice bureau—although that is an honorary position. But that, and my relationship with Victim Support over the years, has given me the opportunity to recognise that both those bodies perform enormously valuable service. There are many who could testify similarly in both this Chamber and another place.

Such groups should be appointed to the criminal procedure rule committee. The Bill merely suggests: two persons who appear to represent".

Perhaps the Minister will explain why the Government chose those words. It may well be that they have in mind appointing people who represent Victim Support and the NACAB, but it would be greatly to the benefit of the Committee if the noble Baroness would explain.

What I hope will come out of the Minister's explanation is an assurance that the people who will be asked to serve on the committee will actually work for and with voluntary organisations not just "appear" to represent them. I beg to move.

Lord Borrie

It might be unwise to be as prescriptive as the noble Lord, Lord Hunt, suggests. I too am well acquainted with the National Association of Citizens Advice Bureaux, and with Victim Support. They have been in existence for some time.

However, this Bill is meant to extend over many years. It would be a pity if the wording were so prescriptive that should a body change its name, disappear or merge into something else, that left the Lord Chancellor's Department without a choice, which is available in the present broader wording. Unless the noble Lord, Lord Hunt, is so strongly cynical that he feels that the Lord Chancellor's Department cannot fairly and objectively operate the system embodied in the clause, I should have thought it best left alone.

Lord Hunt of Wirral

I am grateful to the noble Lord, Lord Borrie, for giving way. I should like to point out that the National Association of Citizens Advice Bureaux was set up before I was born. I realise that that is just a flash in the pan compared to the experience of the noble Lord opposite. But the Bill contains mention of organisations from time to time. He will know that I am simply seeking to press the Minister to give an idea of the voluntary organisations the Government have in mind. I hope that the noble Lord does not for one moment think that I was trying to entrench two specific organisations forevermore, although I believe that both organisations will be with us for many years to come.

Lord Goodhart

I agree with the noble Lord, Lord Borrie; we do not want to be too prescriptive. But perhaps I too can plug an organisation about which I must declare an interest and say that Justice would be an admirable organisation to be represented on this committee. Indeed, it could be said that we need more than two representatives of voluntary organisations on the committee. I agree that Victim Support and NACAB would have a great deal to contribute; but so too would others such as Justice. There is certainly room for more than two representatives.

Lord Thomas of Gresford

Can the Minister say why it is necessary in Clause 66 to give power to the Lord Chancellor to amend what will be Section 65(2)? An amendment standing in the names of my noble friend Lord Goodhart, myself and the noble Lord, Lord Kingsland, is to be debated shortly. Why are those powers taken? I shall be grateful for an explanation.

Baroness Scotland of Asthal

There seems to be general agreement that it is necessary to include appropriate organisations. I thank the noble Lord, Lord Hunt, for his kind agreement with the good sense of my noble friend Lord Borrie, which was also reflected by the noble Lord, Lord Goodhart. I shall deal with the amendment therefore in the spirit in which it was moved.

As drafted, the provision allows for flexibility and inclusiveness in the appointment of representatives from across the voluntary sector. The proposed amendments would require the Lord Chancellor to appoint two additional members—representatives from Victim Support and the National Association of Citizens' Advice Bureaux (both excellent organisations of long standing)—to the committee.

If accepted, the amendment would enlarge what is already substantial membership at the risk of making the committee unwieldy. However, should increased representation of the voluntary sector prove to be desirable, it could be achieved by order, and the Lord Chancellor is to have the power to alter the membership of the committee under Clause 66. Perhaps I can just pick up on the point raised by the noble Lord, Lord Thomas of Gresford. One of the reasons for that power being included is to enable the Lord Chancellor to change the membership if the need arises. Furthermore, the amendment may cause unnecessary complications. In the event of either specified organisation changing its name, as mentioned by the noble Lord, Lord Borrie, the legislation would need to be amended. I accept that that is not what the noble Lord, Lord Hunt of Wirral, had in mind. The aim of Clause 66 is to ensure that there is sufficient flexibility.

Amendment No. 90 would remove the words "appear to" in respect of members of the committee representing voluntary organisations. That amendment was moved this evening.

Lord Hunt of Wirral

I spoke to it.

Baroness Scotland of Asthal

I thank the noble Lord. The use of the phrase is a common formulation in this context to avoid arguments as to whether someone is representative of a group. The phraseology allows for the president of an organisation to propose that a named individual should be considered as representative of that organisation. In turn, that would enable the Lord Chancellor to form the view that the person "appeared" representative. It does not allow for the possibility of the Lord Chancellor deciding that someone other than the nominee appeared representative of an organisation. Flexibility is necessary to ensure that a voluntary organisation may be represented by the person best placed to do so and to provide input to the committee, irrespective of whether he is an officer of the organisation. I hope that noble Lords will be content with that explanation.

I am happy to give Members of the Committee more information on the Question whether Clause 65 should stand part of the Bill. I understand that they wish to have that information on the record so that they can have time to consider it. I apologise if, at the start of the Committee, I did not pay sufficient attention to the fact that it was a clause stand part debate and focused instead on the amendments.

We believe that the framework for making rules for the criminal courts must be overhauled. That sentiment was expressed by various noble Lords on all sides of the House. At present, rules are considered by different committees and made by different means. There is no one forum for the discussion of general improvements to the running of a trial. The existing committees do not meet. Proposed rules for different criminal courts are considered in isolation. Rules, therefore, tend to be fragmented and deal with specific issues. They lack a common purpose and uniform presentation, which makes it harder for the public to understand them.

To modernise and streamline the manner in which the new rules are created, the criminal procedure rule committee will take on responsibility for work on criminal business. It will make rules to determine the practices and procedures to be followed in all criminal courts in England and Wales. By placing responsibility with one committee, more consistent rules should be developed. We hope that that will underpin the goal of greater integration in the criminal justice system. The committee would also participate in the longer-term aim of codifying criminal procedures. The committee will be responsible for the development of the rules governing the practice and procedure to be followed in criminal proceedings in the Court of Appeal, the Crown Court and the magistrates' court. I have already dealt with the role of the criminal procedure rule committee and those whom we believe will be represented on it.

In response to the noble Lord, Lord Hunt of Wirral, the committee will be established at the earliest opportunity following Royal Assent in 2003. A provisional or shadow body may be created early in the new year. It would be chaired by a senior judge and would carry out preparatory work in anticipation of the creation of the new committee. It would work in conjunction with existing committees prior to the creation of the criminal procedure rule committee.

The existing Crown Court and magistrates' court rule committees will continue to make rules for criminal practice and procedure for their relevant courts until the new committee is established. It is anticipated that they will continue to deal with the rules of civil proceedings undertaken in the Crown Court and in magistrates' court thereafter.

I have tried to give a full explanation because I hope that it will give Members of the Committee opposite an overview of where the Government hope to be going. We expect to bring together a working group, drawn from the organisations previously mentioned, to be represented on the committees, to consider the type of work to be undertaken and to liaise with the existing Crown Court rule committee. The work will be in parallel with the development of the new initiative to help the smoother progress of the courts.

Lord Thomas of Gresford

If the noble Baroness, Lady Scotland, is concerned with the fragmentation of practice in the criminal procedure, why is it that, under Clause 69, the Lord Chief Justice will give directions as to the practice and procedure of the criminal courts? What is the thinking behind that provision, which does not give, as I see it, the criminal procedure rule committee any role in deciding on practice directions?

Baroness Scotland of Asthal

There is, and always has been, a role for the learned judge in relation to this matter. We hope that the criminal procedure rule committee will provide an opportunity to obtain an overall view of the criminal procedure rules. We said that all will be represented—the judiciary, magistrates, the Bar, solicitors and all representative parties outlined. It is to be decided which level of judiciary will be sitting on the rule committee. I believe that the noble Lord, Lord Thomas, referred to the Lord Chief Justice.

Lord Thomas of Gresford

I am referring to Clause 69, which states that the Lord Chief Justice will decide on future practice directions. There may be some thinking behind this that I do not understand. If there is to be a criminal procedure rule committee, why is it that the committee will not consider practice directions, but that it is simply left to the Lord Chief Justice, with the concurrence of the Lord Chancellor, on his own?

Baroness Scotland of Asthal

The Lord Chief Justice will not consider practice directions on his own. The whole purpose of setting up the criminal procedure rule committee is to enable all those operating within the system to be heard, in order that they can make specific recommendations in relation to proposed rules. As now, from time to time there will be occasions when the Lord Chief Justice must give a practice direction which may be within or without these rules. Presently, rules apply and practice directions are given. There is no change in terms of the nature of the rules and the directions. We hope that there will be a greater degree of consistency from the rule committee which will go right across the piece.

Lord Hunt of Wirral

I am grateful to the Minister for the interesting question and answer session on the respective merits of the civil procedure rule committee recommending changes in rules. As I understand it, the intention is for the Lord Chief Justice to chair the criminal procedure rule committee. However, I see—

Lord Thomas of Gresford

Under Clause 69, the Lord Chief Justice is acting on his own.

Lord Hunt of Wirral

I am not sure that the Minister has answered the point raised by the noble Lord, Lord Thomas of Gresford; namely, that in Clause 69(1) there appears to be a conflicting provision. It provides that the Lord Chief Justice, who chairs the committee", may, without the committee agreeing such procedure, make directions himself with the concurrence of the Lord Chancellor as to the practice and procedure of the criminal courts.

I agree with the noble Lord, Lord Thomas of Gresford, but there is a question as to why there are two separate provisions. There is, on the one hand, the criminal procedure rule committee chaired by the Lord Chief Justice. It has a clear role to play in the evolution of procedure. There is also the provision in Clause 69(1).

I am sure that there is a simple answer to the question and I have been talking away in case a simple answer is suddenly found. I hope that it will be.

Baroness Scotland of Asthal

At present, there is no statutory provision on practice directions for magistrates' courts. The noble Lord, Lord Thomas of Gresford, referred to Clause 69. That clause rectifies the position in respect of criminal proceedings, while Clause 76 makes similar provision for family proceedings. Clause 69 provides that no other person may give directions without the approval of the Lord Chief Justice and the Lord Chancellor. In practice, that power might be exercised by another senior member of the judiciary, such as the senior presiding judge.

The clause also provides that in giving directions which contain guidance as to law or in making judicial decisions, the Lord Chief Justice does not require the concurrence of the Lord Chancellor. Therefore, directions under subsection (4) may cover guidance to the judiciary on such matters as sentencing where it would be inappropriate to require the Lord Chief Justice to obtain the Lord Chancellor's concurrence.

There are therefore the criminal procedure rules and then the directions which may be given by the Lord Chief Justice. Of course we know that recently such a direction in relation to criminal sentencing procedures caused some—I am tempted to say '"notoriety"—speculation and comment.

Lord Thomas of Gresford

There is a difference between giving sentencing guidelines, the recent controversy to which the noble Baroness referred, and practice directions. I should have thought that practice directions were within the compass of the new procedure rule committee.

I shall read what the noble Baroness has said and if I understand it I shall not return to the matter.

Lord Hunt of Wirral

I am grateful to the noble Lord, Lord Thomas of Gresford, for continuing to press for clarification. I, too, want to reflect on what the Minister has said. She need have no concerns; we shall be dealing fully with the whole question of sentencing guidelines in Amendment No. 122. We shall deal with these important issues at a future time in Committee, but I am grateful to the Minister for having clarified the position so comprehensively. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

Lord Hunt of Wirral moved Amendment No. 91:

Page 30, line 38, leave out "may" and insert "shall"

The noble Lord said: The amendments in this group relate to the criminal procedure rule committee and the family procedure rule committee. Amendment No. 91 would insert in line 31 the word "shall" in place of the word "may". Amendment No. 92 would add after "Committee" in line 40 the words, necessarily incurred in the course of their work as members of the Committee".

Similar provisions are to be made in Amendments Nos. 104 and 105 on page 34.

The amendments simply seek to ensure that the noble and learned Lord the Lord Chancellor will take steps to ensure that those involved in the important work of the committees will not be out of pocket as a result. We would welcome the Government's assurance that the members of the committees will receive proper expenses. I beg to move.

Baroness Scotland of Asthal

I am grateful to the noble Lord for his explanation of these proposals. Amendments Nos. 91 and 104 would restrict the discretion of the Lord Chancellor in paying expenses for those working on or supporting the work of the committees. It is important that the discretion is retained in order that officials may monitor expenditure and ensure that payments are made in accordance with departmental financial controls. It is entirely reasonable for claims to be subject to scrutiny when payments are to be met from the public purse.

The provisions of the Bill are identical to the Lord Chancellor's power in relation to the Civil Procedure Rule Committee. The members of that committee are reimbursed routinely for travelling and out-of-pocket expenses incurred in the course of their work on the committee and it is intended that that would be the case for members of the criminal and family procedure rule committees. The discretionary power for the Lord Chancellor to reimburse members of the rule committee has worked well in the past and there is no need to alter this.

I turn now to Amendments Nos. 92 and 105 which seek further to define out-of-pocket expenses. I believe that the amendments would add unnecessary detail. The context is clear from the current provision. The discretion to pay expenses of itself will ensure that such payments will be confined to those necessarily arising from the work of the committee.

I hope that, with that clarification, the noble Lord will feel content and able to withdraw the amendment.

Lord Hunt of Wirral

I am grateful to the noble Baroness. I was a little concerned that one of the consequences of what the Minister has stated is that if there is no money in the budget then people will not be paid. However, that may be too trite an observation and so I shall take time to consider the matter further. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 92 not moved.]

Lord Hunt of Wirral moved Amendment No. 93: Page 30, line 43, at end insert— ( )Persons appointed under subsection (2) shall serve as members of the Committee for a maximum of three years.

The noble Lord said: Amendments Nos. 93 and 106 suggest that those appointed to the committees should serve for a maximum of three years, but the purpose of the amendments is simply to probe how long the Minister believes that a person would serve. Are there any reasons for removing a person? What are the criteria for selection on to the committees? I believe that we need some clarification on these matters and I look forward to the Minister's response. I beg to move.

Baroness Scotland of Asthal

I should say straight away that I rather doubt that the insertion of a statutory maximum period of appointment is necessary. It may have a detrimental impact on the progression of the committee's work. A statutory limitation could remove unnecessarily valuable experience from the committee and could cause considerable problems for the progression of its work. I am grateful to the noble Lord for saying that he does not propose that a three-year period should be maintained, but that he was using it more as a form of stalking-horse to look at the position.

The appointments process will be developed and carefully monitored to ensure compliance with Nolan procedures and guidance from the Office of the Commissioner for Public Appointments. The membership arrangements will adhere to agreed standards.

I do not have a pat answer in regard to the defined period. So far the period has been flexible, responding in relation to the nature of the rules under consideration and the experience of the individuals involved so that the committee has had the balance and the acuity required to deal with the specific areas of law under consideration. I shall certainly seek a clear answer from our officials as regards our provisional thinking, but I am not able to say to noble Lords that we have a fixed period in mind. We intend to take a flexible approach and to meet the needs of the committee.

I hope that the noble Lord will be content with that response. Obviously if I have further and better information, I shall write to him.

Lord Goodhart

The Minister referred to the Nolan principles. Under the classic Nolan principle there would normally be an appointment for a period of three years, renewable once but not more than once. Is that the kind of appointment period the Government have in mind?

9.15 p.m.

Baroness Scotland of Asthal

I cannot say whet her it would be for a period of three years. I assume that that would be the normal way. Certainly all the appointments made in the past have tended to be for a period of three years. There are occasions when particularly difficult issues come before the rules committee where specific specialisation may be necessary, where alternate opportunities need to be taken and other people co-opted. I cannot give a definitive answer in relation to that.

We very much value the work of the rules committee. It has given huge attention to some of the detailed practical issues. We have benefited from having on it practitioners, judges and people from representative bodies and we have taken advantage of their experience. To be absolutely frank, those who have a real talent for this kind of work tend to be treasured and invited on to the committee for as long as they can bear it. They do good work.

I cannot give the Committee a better answer at the moment. If I obtain more information, I shall be happy to write to noble Lords.

Lord Hunt of Wirral

I prefer not to be known as a "stalking horse", as the Minister called me—perhaps a "treasure". In view of what she said, I should like to feel that any contribution I make will be treasured. However, I am not too sure that all my contributions today have been so regarded by the noble Baroness.

I swiftly move to thank her for that clarification and to thank the noble Lord, Lord Goodhart, for probing in the way that I should have done vis-à-vis the Nolan committee. I was involved in the setting up of that body, which has been very successful.

I agree that the Civil Procedure Rule Committee has been a remarkable success and has made a significant contribution towards improving the civil justice system. We wish the new criminal procedure rule committee well. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 [Power to change certain requirements relating to Committee]:

Lord Goodhart moved Amendment No. 94:

Page 31, line 7, at end insert"— ( ) No order may be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.

The noble Lord said: Clauses 65 and 72 specify the membership of the criminal procedure rules committee and the family procedure rules committee respectively, both of which will be newly created bodies. Clause 78 amends the existing legislation on the membership of the Civil Procedure Rules Committee, which is an existing body.

Clauses 66, 73 and 79 give the Lord Chancellor the power to change the categories of membership by statutory instrument. Although there is a requirement for consultation, in each case the negative resolution procedure is provided for.

I have to accept that the Delegated Powers and Regulatory Reform Select Committee stated in its report on the Bill that, Potentially, the order-making power could be used in a way which changed the balance of the Rules Committee but we consider that the negative procedure probably provides a sufficient degree of parliamentary control".

We disagree with that.

This is an important power and these are three important committees which, between them, have very extensive powers over virtually the whole of our judicial procedure. We believe that a change in the rules of membership should require the affirmative procedure. I beg to move.

Lord Hunt of Wirral

I rise merely to support the words of the noble Lord, Lord Goodhart.

Baroness Scotland of Asthal

I hear everything that the noble Lord says in relation to the need for these committees to be stable and not to be changed, and what he says in relation to the affirmative procedure. I know that the noble Lord has read in full the committee's reasoning in reaching the conclusion that the negative resolution procedure is the better. I respectfully endorse all those comments. I say further that, of course, there will be little temptation for any future Lord Chancellor to re-weight the balance of, for instance, the family procedure rule committee in favour of the state over the rights of the individual in family proceedings. I believe that scrutiny by the negative procedure will give us sufficient security.

The comment of the noble Lord, Lord Hunt, in relation to the way in which the Civil Procedure Rule Committee has worked is absolutely right. We have no reason to believe that the two new committees will not be equally effective and successful and receive the necessary plaudits.

I hope that the noble Lord will be content with that. If he feels the need for further explanation, I can provide that at length. However, it might be better to move on.

Lord Goodhart

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

Clause 67 [Process for making Criminal Procedure Rules]:

[Amendment No. 95 not moved.]

Lord Hunt of Wirral moved Amendment No. 96: Page 31, line 16, leave out ", with the concurrence of the Secretary of State,

The noble Lord said: This amendment seeks to leave out the words, with the concurrence of the Secretary of State",

so that the subsection would read: The Lord Chancellor may … allow, disallow or alter rules so made".

The amendment seeks to probe why the concurrence of the Secretary of State is required.

Members of the Committee will note that in Clauses 74 and 80, dealing with the process for making family procedure rules and civil procedure rules, the concurrence of the Secretary of State is not required. There, the power to, allow, disallow or alter rules so made",

is given to the noble and learned Lord the Lord Chancellor alone.

Why will the Secretary of State have to give his consent for the making of criminal procedure rules, and what procedures will the Government be putting in place for the making of the rules? Will the Secretary of State merely be presented with a document by the noble and learned Lord the Lord Chancellor, and told: "Here are the rules I wish to make. Do you concur"? Or will the Secretary of State have an input into the making of the rules themselves and into the noble and learned Lord's decision-making as to whether to allow, disallow or alter the rules? I beg to move.

Baroness Scotland of Asthal

As the noble Lord may know, the Lord Chancellor is responsible for the administration of the courts, but the Home Secretary bears responsibility for criminal policy.

The creation of the criminal procedure rule committee is an initiative which has the wholehearted support of the Attorney-General and the Home Secretary. Many court processes originate from legislation taken forward by the Home Secretary, and it is desirable that the Home Secretary should be involved in the final stages of the rule-making process.

Closer liaison between officials of all three departments will help to ensure that future legislation is developed consistently and economically across the criminal justice system. I can reassure the noble Lord that the rule committee will be making the rules, not the Lord Chancellor. I hope that explains why we believe that it is helpful for the Home Secretary to be involved in this way. It will provide greater consistency and we hope that it will make the path smoother in the future.

Lord Hunt of Wirral

I am grateful to the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 97: Page 31, line 17, leave out ", disallow or alter" and insert "or disallow

The noble Lord said: In moving Amendment No. 97, I shall speak also to Amendments Nos. 98 and 99, 109 to 111 and 117 to 119. Although it is late, I shall have to take a little time, because they are important amendments. It is certainly the most important group of amendments we have debated today and among the most important tabled to the Bill.

We have three rule committees: the criminal procedure, the family procedure and the Civil Procedure Rule Committee. They are there to make rules, but the Bill says that the, Lord Chancellor may … allow, disallow or alter",

those rules. I have no objection to the Lord Chancellor allowing them or, for that matter, disallowing them. It is fair that he should have a veto.

I am worried, however, by the Lord Chancellor's power to alter them, because a power to alter rules is, in effect, a power to make them. It is not quite an unfettered power to make them, because the Lord Chancellor cannot initiate a rule change. When he alters the rules, it must be within the scope of the rules presented to him by the rule committee. However, the power to alter rules is given without the Lord Chancellor having to go back to the rule committee to get its concurrence to the alterations that he proposes to make. It is wholly wrong that the Lord Chancellor has even a somewhat limited power to make rules on his own. It is highly dangerous.

If the Lord Chancellor is unhappy with some aspect of rules made by the committee, there should be a process of negotiation. Of course, he can indicate to the committee that he would disallow a proposed rule unless changes were made to it. The rule committee can then agree with the Lord Chancellor on the changes that should be made to it. That is the right and proper way of doing it. It would be wrong, however, for the Lord Chancellor, when presented with a set of rules, aspects of which he does not like, to be able to proceed entirely off his own bat and substitute his own rules for those made by the rule committee without seeking the committee's concurrence.

The measure represents an important innovation. The Lord Chancellor has never had power to alter the rules made by the Civil Procedure Rule Committee or by its predecessor, the Supreme Court Rule Committee. He did at one time have power to alter the rules made by the County Court Rule Committee, but that power was given up some years ago. It is wrong to bring back the Lord Chancellor's powers in relation to county court rules and extend them so far beyond anything that existed before. It is another example of the centralising tendency to which the Government are all too prone. The proposal to allow the Lord Chancellor to alter rules presented to him by the rule committee without the concurrence of the committee in the alterations should be rejected. I beg to move.

9.30 p.m.

Lord Hunt of Wirral

Of course, we strongly support the words of the noble Lord, Lord Goodhart. On Amendments Nos. 97, 109 and 117, we share his concern about the power given the Lord Chancellor to alter rules. It gives the Lord Chancellor blanket discretion to rewrite the committees' proposals. In such circumstances, why have the committees in the first place?

Of course, Clause 67 provides that before altering rules so made, the Lord Chancellor must consult the committee, but he does not need to seek its approval. The noble Lord, Lord Goodhart, made that point clearly. I do not know what form the consultation will take, but the power to alter rules, which is not allowed for the civil procedure rules, stands out as being felt necessary uniquely for criminal procedure rules.

The Home Secretary may well have insisted that there should be the power to alter criminal procedure rules; otherwise I do not understand the force of the provision that alteration has to be permitted for the criminal procedure rules, but for civil procedure rules the power is only to allow or disallow. Why does the Lord Chancellor get the power to alter?

Lord Goodhart

I thank the noble Lord for giving way. This applies to the civil procedure rules. Clause 80, which inserts a new section into the 1997 Act, contains the process for making civil procedure rules. The bottom line on page 30 says: The Lord Chancellor may allow, disallow or alter rules so made

Lord Hunt of Wirral

The noble Lord. Lord Goodhart, is right. However, Section 2(8) of the Civil Procedure Act 1997 does not contain those words. As the noble Lord has pointed out, we suddenly find "alter" inserted in Clause 80. Until now, it has not been thought necessary. I hope the Minister can explain why the power to alter is suddenly emerging for the criminal procedure rules and the civil procedure rules.

Baroness Scotland of Asthal

I understand why the issue concerns the noble Lord, Lord Goodhart. I hope that I shall be able to quieten his troubled spirit and satisfy the noble Lord, Lord Hunt.

I assure the Committee that there is nothing sinister hidden in the provision enabling the Lord Chancellor to alter the rules made by the rule committee. As the noble Lord, Lord Goodhart, mentioned, the power was in existence for over a century for the county court rules. I do not believe that its restoration would represent a radical change from the current position.

At present, the Lord Chancellor has the power to allow or disallow a set of rules. That means that he does not have the power to change even a minor issue if he agrees with the majority of the rules. If a Lord Chancellor were minded to disallow rules—I stress that this would be an extremely rare occurrence—he would doubtless discuss the matter with the rule committee. I am sure a compromise would be reached on the rules that ought to be made. The same would happen if the Lord Chancellor disagreed over a particular rule. He would discuss it with the committee and no doubt an agreement would be achieved.

For all three rule committees, we have provided that the Lord Chancellor is required to consult the committee before he alters the rules. Giving him the power to alter rules after consultation means that instead of having to disallow an entire set of rules, he would only be altering them. We respectfully suggest that that is a less blunt instrument.

The power to alter rules will ensure that any amendment to rules submitted by the committee can be expeditiously completed. For the criminal procedure rule committee, there is a provision in the Bill that rules may not be altered without the concurrence of the Secretary of State and consultation with the committee. These arrangements would facilitate a situation in which, should there be a difficulty on a particular rule, an agreed amendment could be quickly implemented following consultation with the committee. This would not undermine the fundamental principle that it would be the committee's role to make the rules and not the Lord Chancellor's.

The power to alter rules will be particularly beneficial when the committees are required to deal with urgent matters. The power to alter rules would also provide for any instance where the rules made by the committees failed to reflect the intention of Parliament when an Act was passed. Although that would be a rare occurrence, it would allow the alteration of individual rules rather than forcing the Lord Chancellor to disallow a set of rules on a particular matter.

I should also clarify that it is intended that this power would usually be exercised only where a minor alteration to rules is necessary. It is not intended that the power should be used to replace rules made by the committees. It is necessary in order to ensure that in the event of a difficulty being discovered, the rules could be amended rather than having to be returned to the committee to be remade in toto.

I hope that that explanation satisfies the Committee that the power to alter rules is neither novel nor dangerous and that the noble Lord will feel content to withdraw the amendment. I emphasise what I said earlier; namely, that in the past it has always been possible for the rule committee to reach an accommodation in relation to these issues. That has worked well. As I say, we expect the power to be exercised rarely.

Lord Goodhart

I suspect that the noble Baroness will not be entirely surprised to hear that I remain entirely unpersuaded by her advocacy on the matter. She did her best. However, given that there is a requirement on the Lord Chancellor to consult the rule committee before he makes alterations and, as I understand it, the alterations may be made some time after the rules have been made, I see no reason why the Lord Chancellor should not be required to go one step further and obtain the concurrence of the rule committee to any alterations which he wishes to make. That seems to be wholly in line with the basis on which the various rule committees operate and I think that it is plainly the right way to handle the matter. I shall withdraw the amendment tonight but it will be high on the list of amendments which I intend to bring back at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 98 and 99 not moved.]

Lord Hunt of Wirral moved Amendment No. 100: Page 31, line 24, leave out from "Rules" to third "of" in line 25 and insert "shall not be made unless a draft of the instrument has been laid before and approved by resolution of both Houses

The noble Lord said: I rise with renewed vigour to move Amendment No. 100 and to speak to Amendments Nos. 112 and 120. If the Lord Chancellor is to make alterations to the rules, particularly if they have been made contrary to the advice of the committees, should there not be an extra parliamentary check on the making of such rules? As was clear from the debate on a previous amendment, up until now civil procedure rules were subject to negative resolution under the Civil Procedure Act 1997, and we were content with that. But given this power to alter the rules and the power to consult the committees, but not necessarily to obtain their consent to the alterations, it is clearly necessary for there to be a further parliamentary check. This amendment would require that procedure rules should be subject to affirmative rather than negative resolution. Amendments Nos. 112 and 120 are similar in effect. I beg to move.

Lord Goodhart

If the amendments to which I spoke in the previous group were to be accepted by the Government, I should be content for the present position to continue; namely, that the negative procedure is adequate for rule changes. I see that the noble Lord, Lord Hunt of Wirral, nods his head. If that was not to be the case, it would be essential that there be parliamentary control over alterations in the rules. In those circumstances, I would fully and completely support the amendment.

Baroness Scotland of Asthal

I am grateful for the noble Lord's indication that the negative procedure is more appropriate for rules, because in that he implicitly recognises the worth of the committee's detailed scrutiny of the rules and the fact that it is unlikely, with the greatest respect to either House, that there will be those here with greater ability to scrutinise the rules and make sure that they work effectively than in the committee. I understand entirely what has been said on negative resolution.

I emphasise that we anticipate that the power to alter will be exercised very rarely and sparingly. Therefore, to subject the rules to the affirmative procedure in our normal expectation would be rather burdensome. Members of the Committee will know the difficulty of finding parliamentary time in both Houses, and we think that that would be too heavy a club to deal with the issue in relation to alteration.

I listened carefully to what the noble Lord said in relation to the amendment and to what was said by the noble Lord, Lord Hunt. We will look again at alterations, although I cannot tell the Committee that I have any real expectation of material change. However, even if the noble Lord succeeds in relation to other amendments, it would be quite wrong to have required an affirmative procedure in relation to this amendment. We would have to think again.

Lord Goodhart

Speaking for myself and not for the noble Lord, Lord Hunt, I would be content if the affirmative procedure was limited to rule changes made by the Lord Chancellor under his power of alteration, and the negative procedure continued to be used where the rules had been made by the rule committee and allowed by the Lord Chancellor.

Baroness Scotland of Asthal

I am grateful for that indication, which I shall take away and consider. If the issue can be resolved amicably during our meeting between Committee and Report, so be it. We will obviously return to the issue on Report. On the basis of what I have said, I hope that the noble Lord will withdraw the amendment.

Lord Hunt of Wirral

It has been a most useful discussion. The noble Lord, Lord Goodhart, and I have made our position absolutely clear. We are grateful to the Minister for her assurances, and in particular for her promise of further discussion and deliberation. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 67 agreed to.

Clause 68 [Power to amend legislation in connection with the rules]:

Lord Hunt of Wirral moved Amendment No. 101: Page 31, line 29, leave out "or desirable

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 102 and 113.

At the moment, the clause would enable the Lord Chancellor, with the concurrence of the Secretary of State, by order to, amend or repeal any enactment, or amend or revoke any provision of subordinate legislation, to the extent that he considers necessary". The amendment would remove the words "or desirable", which immediately follow "necessary".

I am not sure in what circumstances an amendment would be desirable if it were not necessary. With such a huge and wide-ranging Henry VIII power in the clause to make amendments to legislation, it would be helpful if the Minister could say why such sweeping powers were necessary. It would allow the Government to rewrite the statute book because they believe that it is desirable to do so to facilitate the making of procedure rules which in the light of previous debates may have been rewritten by the Lord Chancellor in any event. Amendment No. 102 would require the affirmative resolution procedure to be used.

I am sure that I have no need to refer the Minister to paragraph 15 of the report of the Delegated Powers and Regulatory Reform Committee, in which it was made clear that in relation to Clause 68 and 75 it did not consider that the Government had made out the case for the negative procedure. I hope that the Minister will take on board the amendments that I have tabled. I beg to move.

9.45 p.m.

Lord Goodhart

Amendments Nos. 102 and 113 stand in my name and that of my noble friend Lord Thomas of Gresford and the noble Lord, Lord Kingsland., has added his name. It will probably be unnecessary to discuss them at length because I understand from the seventh report of the Delegated Powers and Regulatory Reform Committee, which deals with the government response to the earlier report of that committee, that the Government intend to apply the affirmative procedure when the Henry VIII powers under Clauses 68 and 75 are used to amend or to repeal any enactment. I hope that the noble Baroness will be able to confirm that that remains the intention of the Government.

Baroness Scotland of Asthal

I am happy to confirm that that is the Government's intention. The noble Lord is right to draw attention to that, for which I thank him. In response to the noble Lord, Lord Hunt, it is not the intention of the Lord Chancellor to rewrite the rules. The noble Lord, Lord Hunt, said that the Lord Chancellor will rewrite the rules; he will not. I reiterate that the clauses that we would intend to change would be the minor rules in relation to the rules committee and not those of major consequence.

The matter of desirability is relevant, as the work of the committee may uncover anomalies in the criminal law that could be remedied by virtue of the powers set out in Clause 68. There may be some instances where revision of existing legislation may provide benefits to all those involved in the workings of the criminal courts; for example, using modern language to articulate the law, making it easier for the man in the street to understand. In the strictest sense, changes such as those may not be necessary, but they may well be desirable in bringing about improvements in the running of a trial and helping to ensure that the lay man or woman is able to understand what is happening. That is what we are talking about. In view of what I have said about the affirmative resolution procedure, I hope that the noble Lord will be content.

Lord Hunt of Wirral

I am grateful to the Minister for those words, on which I shall reflect. In the mean time, I beg leave to withdraw the amendment.

Amendment by leave withdrawn.

[Amendment No. 102 not moved.]

Clause 68 agreed to.

Clauses 69 to 71 agreed to.

Clause 72 [Family Procedure Rule Committee]:

Baroness Anelay of St Johns moved Amendment No. 103:

Page 34, line 4, leave out "one person with" and insert "two persons with current"

The noble Baroness said: In moving Amendment No. 103 it may be convenient for the Committee if I speak also to Amendment No. 114, which is not grouped with it but which I can deal with now. I return to the membership of procedure rule committees, particularly with regard to those persons who have knowledge and experience of the lay advice sector or consumer affairs as regards the civil procedure rule committee and as regards the family procedure rule committee, those persons who have experience in and knowledge of the lay sector, lay advice sector or the system of justice in relation to family proceedings.

I can be relatively brief because we had some discussion earlier today with regard to the valuable input that there will be from the lay sector. My questions for the Minister relate to the number of these persons it is felt would give sufficient expertise for the successful operation of these committees and whether that experience should be current. If someone is so good at committee work and so helpful to it, it is seductive to allow them to remain—as the noble Lord, Lord Goodhart, said earlier—if one does not have any rules; and, if they are a lay person, they then lose touch with current developments. I have worked most of my life in the voluntary sector and it is very difficult sometimes to let certain volunteers go even though they no longer have direct experience. Therefore, these amendments are probing ones on which to hang those questions.

With regard to the family procedure rule committee in Clause 72, I notice that subsection (2)(o) states that it will have one lay member, but that under Clause 78(3)(g) the civil procedure rule committee has two such persons. Can the Minister tell us why there is a difference between those two committees? I appreciate that there may be a proper reason; I am simply intrigued as to why there is a difference. I beg to move.

Baroness Scotland of Asthal

Perhaps I may take up the last point of the noble Baroness because I do not have specific briefing on it. What springs to my mind is that the breadth and disparity of civil work may be far broader than that in the criminal procedures. Those in the criminal sphere have to deal with the same ambit of cases, whereas those in the civil sphere could deal with, for instance, both family and commercial matters. I say that as a suggestion.

Baroness Anelay of St Johns

I am grateful to the noble Baroness for beginning with that point, but my question relates to the fact that the first subsection to which I referred deals with family procedure, not criminal, and refers to one lay person, whereas the civil procedure provision refers to two. The family procedure is dealt with separately.

Baroness Scotland of Asthal

Then the argument gets reversed because that is a specialisation, so only one lay person is needed. Civil procedure is broader, so two are needed. I think that is the answer. If I am wrong I shall certainly clarify it for the noble Baroness.

The Government appreciate the thinking underlying the amendment, that the lay advice sector members of the family procedure rule committee have experience that is current. We understand the necessity for that. Like the noble Lords, the Government do not want members of the rule committee to be out of touch. However, we are doubtful about the wisdom of adding the word "current". The main problem is that that would exclude someone who has very recent experience of the lay advice sector. For example, an applicant may have built up a vast depth of knowledge over 20 years in the field and left a month before applying for the position. So if the amendment were accepted, the applicant would have to be rejected and that knowledge would be lost, but we understand the point the noble Baroness makes about those who are no longer in practice remaining on committees for a number of years where their practice is not fresh. We understand that that is a difficulty.

There is a difficulty in using the term "current", because what is current today may not be current tomorrow, and then how does one decide what at any given time is current?

We have considered that the breadth of work in family jurisdiction is much narrower. I confirm that it was thought necessary to have only one lay advice sector member. That is the rationale behind it. I hope I have explained why we think these amendments are not necessary.

As regards Amendment No. 114, to which the noble Baroness has spoken, the main difficulty is that it could exclude recent experience. I give an example of someone who has worked for a citizens advice bureau for 20 years but again has stopped the month before. That is the same sort of case. We have not found any reference in primary legislation to the use of the word "current". I hope that that helps the noble Baroness.

Baroness Anelay of St Johns

I am grateful to the Minister. She has reassured me in some respects but has raised questions that I should have asked the first time round. I do not seek to be difficult: her response was helpful.

I seemed to be fixated with the dreadful word "current" when I sought to deal with the amendments over the Christmas period. I shall have to get out of the habit of using the word. The noble Baroness properly takes me to task on the use of it in this context. But the Minister brings to her defence the example of someone with 20 years' experience of a citizens advice bureau. That can happen easily. People either stay for a short while, moving on to paid employment, or stay for a lifetime. Such a person could have hands-on experience of specialised work but, having left a month previously, under my rules he or she would be disbarred. I am more persuaded by my argument that they may have to be disbarred. I am uncomfortable with the fact that someone with such experience, but without the knowledge of development, should have input. His experience might become almost frozen in aspic.

My experience of the judicial system is that one needs that mix of experience and the knowledge of how things are changing to be able to advise properly on rules. We are speaking of changes of rules. It is an important point that I shall consider carefully.

Baroness Scotland of Asthal

I hear what the noble Baroness says. We envisage that those issues will be taken into account when we recruit. The noble Baroness will know that there are those who progress in the citizens advice bureaux from dealing with individual cases to a more managerial role. Twenty years' experience can mean different things. It can mean no growth and stagnation or dramatic growth over a period of time. In recruiting people, we have to ensure that they have the breadth and freshness of experience so that they can bring the acuity we shall need as regards scrutiny of the rules. The noble Baroness is right. It is critical that those entrusted with this role have the ability to direct their minds to what the rules will have to accomplish.

Baroness Anelay of St Johns

I am grateful to the Minister for that helpful addition. She speaks of the different experiences of volunteers within an organisation such as the CAB. Many in the metropolitan areas who are paid advisers may have had a long career. The noble Baroness is right. Some people specialise in specific advice. She brings me to the second part of the question that I need to pose as a result of her first answer. She is making it possible for me not to return to these matters on Report, so she is doing a service at least to her own side if not to my own. Perhaps I should not have said that since my Chief Whip is present.

I come to the number of members of the committees. As the Minister said, because the family procedure rule committee has a narrower remit and is more specialised, perhaps one only needed one member. The problem she then raises in my mind was this. What kind of specialist group within the voluntary sector do the Government think relevant? Can the noble Baroness give the Committee an idea of which bodies might have the relevant experience for membership?

Baroness Scotland of Asthal

It would be almost invidious for me to pick. For example, if I said, "the NCH", then others might say, "Why them?". We shall seek someone who has the breadth of knowledge that covers the subject matter with which we must deal. Especially in the field of family law, one can think of several who have to deal with all aspects of family law relating to children—public and private sector intermingled. So we must carefully consider during the recruitment process whether we have the balance of experience that we need on the committee, so that when it scrutinises it has all the skills that we want it to have to make the rules robust and sound.

10 p.m.

Baroness Anelay of St Johns

That was even more helpful. The Minister has not only reassured me, as I confirm that she has about the membership and its nature, but put on record a snapshot—that belittles it, but that it is what it is—of the kind of expertise for which the Government are looking. That may well be used to persuade organisations that might otherwise not have done that they should consider giving the Government ideas about who should be members of those committees. I am especially interested in the Minister's comments about breadth of experience across the public/private partnership—that is a valuable approach. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 104 to 106 not moved.]

Clause 72 agreed to.

Clause 73 [Power to change certain requirements relating to Committee]:

[Amendment No. 107 not moved.]

Clause 73 agreed to.

Clause 74 [Process for making Family Procedure Rules]:

[Amendments Nos. 108 to 112 not moved.]

Clause 74 agreed to.

Clause 75 [Power to amend legislation in connection with the rules]:

[Amendment No. 113 not moved.]

Clause 75 agreed to.

Clauses 76 and 77 agreed to.

Clause 78 [Civil Procedure Rule Committee]:

[Amendment No. 114 not moved.]

Clause 78 agreed to.

Lord Evans of Temple Guiting

I beg to move that the House do now resume.

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

House resumed.

House adjourned at three minutes past ten o'clock.