Courts Bill [H.L.]

HL Deb 28 January 2003 vol 643 cc1044-74

5.12 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 (Lord Ampthill) in the Chair.]

[Amendment No. 6 not moved.]

Clause 2 [Court officers, staff and services]:

Baroness Gibson of Market Rasen moved Amendment No. 7: Page 2, line 7, after "(1)" insert "or transferred under Schedule 1

The noble Baroness said: In moving Amendment No. 7, I shall speak also to Amendment No. 8. I shall be brief. Amendments Nos. 7 and 8 aim to clarify this part of the Bill and to ensure that all relevant employees are covered by the Civil Service pension scheme.

The amendments stem from the concerns of the involved unions about the current wording of the Bill. Amendment No. 7 makes explicit that relevant staff transferred to the Lord Chancellor's Department will be eligible to join the Principal Civil Service Pension Scheme (PCSPS 2000) and that they will be covered by the scheme from day one of their transfer.

Amendment No. 8 aims to ensure that the Bill covers any contracts and sub-contracts entered into. There is always anxiety among staff when transfers occur. These amendments seek to help alleviate that worry. I beg to move.

Lord Goodhart

I can be even briefer on the matter. We on these Benches entirely support the amendments tabled in the name of the noble Baroness, Lady Gibson.

Baroness Anelay of St Johns

I cannot be quite as brief, but I shall not be too long. I add my support. The noble Baroness does the Committee and especially employees a service by tabling these amendments. We do not always see eye to eye on employment law, but today I am sure that we shall.

Perhaps the noble Baroness will also want the Minister to place on the record some of the assurances that have been given, both in the letter that the Minister was kind enough to send to noble Lords over the Christmas period, and in the letter of 28th January that was sent to the noble Lord, Lord Lea of Crondall, a copy of which was handed to me as I came into the Chamber. Both letters are useful.

Today is a significant clay for the noble Baroness, Lady Gibson, to move the amendments. Over the past 24 hours reference has been made, both on the radio and in The Times law supplement, to the fact that this may not be the last of the Lord Chancellor's empire building with regard to transfer of responsibilities. The report by Sir Andrew Leggatt is waiting hot in the wings and it looks as though tribunals—another not "unconsidered trifle"—are about to be snaffled up by this Autolycus of a Lord Chancellor.

So any provisions which the Government implement with regard to magistrates' courts may well become a model for what might happen to tribunal property and employment rights. Therefore, we should all look carefully at the assurances given by the noble Baroness. Perhaps we shall need to return to them on Report simply to tease out some of the details, because they will undoubtedly be of future significance if the noble and learned Lord the Lord Chancellor has his way.

Lord Thomas of Gresford

I follow the noble Baroness, Lady Anelay, in referring to the setting up of a department of justice, which I think was suggested today. That is a step forward towards the long-held Liberal Democrat policy of having a minister of justice. So we welcome the bringing together of factors which will make the transition to the appointment of a minister of justice instead of the Lord Chancellor that much easier.

However, the Minister may recall that at Second Reading I raised the question of the cost of transferring pensions to the Civil Service fund. I quoted the figures which had been given to me, which indicated that the cost of transferring the employees of London magistrates' courts to the Civil Service fund was £8 million. If that figure is extrapolated, it means that the cost for the whole of England and Wales would be in the region of £100 million in legislation that was supposed to be cost neutral. Has the noble Baroness considered what I said at Second Reading and does she have any comment to make on those figures?

Lord Bassam of Brighton

I am grateful to noble Lords who have spoken in this short debate. I hope that in responding I can reiterate the assurances that we have already provided by correspondence.

My noble friend Lady Gibson moved her amendment very succinctly and expertly, as one would expect. I shall try to run through its exact impact and the Government's view.

Clause 2(2) currently provides that any staff appointed by the Lord Chancellor to work in the courts would be eligible to join the Principal Civil Service Pension Scheme (PCSPS). The effect of the amendment would be to add an express provision stating that transferred staff are eligible to join the PCSPS immediately after their transfer. I doubt whether it is necessary to add a provision to the Bill for transferred staff to join the PCSPS because, as civil servants, they would be eligible automatically for membership on transfer into the employment of the Lord Chancellor.

Furthermore, we want to treat the pension provision for staff appointed by the Lord Chancellor under Clause 2(1) and those employees transferred to the new agency under Schedule 1 distinctly. This amendment would prevent us from doing that. That is because there is a possibility that staff who transfer to the new agency on the abolition of magistrates' courts committees will remain temporarily in their present pension scheme after the date of the staff transfer to the new agency while actuarial calculations and negotiations with the relevant trades union as to the terms of transfer of pension benefits are carried out. Paragraph 10 of Schedule 1 provides for that eventuality. As with transferred staff, those appointed by the Lord Chancellor under Clause 2(1) will immediately become eligible to join the PCSPS on the date of entry into the new agency.

Amendment No. 8 would replace the word "arrangements" in Clause 2(4) with the words "contracts or sub-contracts". Again, I rather doubt whether this amendment is necessary because the word "arrangements" has a wider meaning than the word "contracts". Clause 2(4) as drafted provides the Lord Chancellor with flexibility and allows him, for example, to enter into arrangements with agencies for the provision of temporary staff or to contract out entire functions. Most arrangements would be contracts. However, there may be situations where a secondee from another government department, or perhaps even from the private sector, works for the new agency on a loan basis. Therefore, the current wording provides for a wider range of eventualities.

It is our intention to reflect in legislation what happens in practice. Under current legislation, a distinction exists between staff in the courts employed under the Lord Chancellor's statutory powers via the Court Service and those employed under non-statutory powers. The former category includes staff employed under Section 27 of the Courts Act 1971; namely, those carrying out an administrative function within the courts.

Other categories of staff do not fall within the meaning of "administrative". They might be security staff, enforcement staff or cleaning and catering staff. They are employed via the Court Service under the Lord Chancellor's residual non-statutory powers.

We are obviously very aware of, and sensitive to, the concerns that the trades unions have raised about our wording on contracting out. We give an undertaking to hold further discussions with the unions, and we shall endeavour to report back to the House so that all those involved are aware of what has happened.

Lord Brooke of Alverthorpe

I thank my noble friend for giving way. I shall wait with interest to see what transpires on the further discussions that take place. I declare an interest as a pensioner with PCSU. If people, such as security guards and so on, are employed on a temporary basis to assist in the new agency, can the Minister explain how they will do so without a contract governing them to undertake such functions? So far as I am aware, any government department or agency would enter into a contract and would not simply have an arrangement.

Lord Bassam of Brighton

My understanding is that the term "arrangement" describes something which is temporary in nature, but there will be a contract which describes that arrangement. I am not sure that that necessarily helps the noble Lord but I believe that that is how it would work in practice.

Lord Thomas of Gresford

Do I understand from the Minister that there will be sheep and goats? The sheep, who are fully employed by the Court Service or whatever replaces it, will be included in the pension scheme; the goats, who are there because they are part of a privatised service hired by the Lord Chancellor, will not receive any pension at all. Is that what the Minister is saying in a very long passage?

Lord Bassam of Brighton

I do not believe that I said that at all. I urge the noble Lord to read very carefully what I said. I do not believe that he gave an accurate summary of what I said. I thought that I made the situation clear.

Baroness Gibson of Market Rasen

I thank the Minister for his interesting reply, to which I listened carefully. I thank Members of the Committee who have spoken and given support to the amendment. At present, I believe that the best thing I can do is to say that I would like to consider the answer in more detail in Hansard. Therefore, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Baroness Anelay of St Johns moved Amendment No. 9: Page 2, line 11, after "arrangements" insert "including contracting out services to private companies

The noble Baroness said: At this stage, this is purely a probing amendment. I tabled it during the early stages of the Bill, long before the noble Baroness, Lady Gibson, tabled her more comprehensive approach to the issue.

As I mentioned during debate on the previous amendment, it was very helpful of the noble Baroness, Lady Scotland, to write to noble Lords over the Christmas period. Certainly with regard to my own amendment in this group, I can be brief. I tabled it so that the Minister would have the chance to place on the record some of the assurances that she gave in her letter to noble Lords over the Christmas period.

With regard to the contracting out of services, I am very much aware that the assurances given by the noble Baroness may not go as far as one would like. I wait to hear what she says. As she is aware, we have perhaps a more open view of the contracting out of services than her noble friends may have. But my concern throughout is that, if there is privatisation of any of the services which come within the remit of the Bill, that privatisation should be appropriate. I am also concerned that the proper steps of prior consultation take place—in particular, with the judiciary and the unions.

At this point, I thank the Public and Commercial Services Union for its helpful and constructive briefing and for taking the time and trouble to come to the House to brief my noble friend Lady Seccombe and myself. I shall leave the meat of the argument to the noble Baroness, Lady Gibson, in her more comprehensive amendments. I beg to move.

Lord Clinton-Davis

I am not surprised that the noble Baroness has not chosen to elaborate on this ridiculous amendment. When she said that she had a more open mind than the Government, she really meant the opposite—that is, that she had a more backward-looking mind than the Government. I see nothing which the Lord Chancellor should do beyond what the Bill envisages at present. I ask the noble Baroness, who is usually diligent about such matters, to rethink the amendment entirely.

Baroness Anelay of St Johns

As this is the Committee stage, it may be convenient if I respond to the noble Lord now. As I said, I am open-minded. The amendment was tabled in order to give the Government the opportunity to put on the record the commitments that they gave to noble Lords in a letter over the Christmas break. Noble Lords who took part at Second Reading received the benefit of that letter. Other noble Lords did not necessarily do so. Perhaps a copy of the letter was placed in the Library. If so, that was good practice. I know that this particular Minister is almost always open to good practice. But, of course, members of the public do not have the opportunity to see the letter. Open government; open minded—that is me.

Lord Renton

I am very surprised at the comments made by the noble Lord, Lord Clinton-Davis, with whom I sometimes have the honour of agreeing, but not on this occasion. We should bear in mind that the Government who call themselves "new Labour" are far more broad-minded than old Labour used to be. On a number of occasions—I shall not cite them all—the new Labour Government have enlisted the help of private enterprise in order to perform public duties. That is all that the amendment suggests. I would have hoped that it would receive a favourable reception from the Government Front Bench.

5.30 p.m.

Lord Goodhart

I wish to speak to Amendment No. 11 which stands in the name of myself, my noble friend Lord Thomas of Gresford and others. Under Section 27(3) of the Courts Act 1971, as amended by the Deregulation and Contacting Out Act 1994, the Lord Chancellor may contract out the provision of officers and staff for non-judicial functions, but under Section 27(6) the Lord Chancellor must consult with the four senior judges before contracting out any services.

We believe that that obligation should be repeated in this Bill. If the Lord Chancellor is minded to contract out the provision of courtroom security to a private security firm—an example of what has already been contracted out—surely it is appropriate that he should consult with the senior judges. Picking up a point made by my noble friend Lord Thomas of Gresford, it is increasingly clear that the Lord Chancellor can no longer be regarded as a judge and that he should take the opinion of the judges—the four designated senior judges—before he contracts out any services that otherwise would be provided by the agency.

Baroness Gibson of Market Rasen

I notified the Public Bill Office that I wanted to withdraw Amendment No. 10, so I shall not speak to it. However, I wish to speak to Amendments Nos. 11 and 12. Overall the Bill has been welcomed by the relevant trade unions because it streamlines the system relating to the courts and brings in accountability where there was none before. Those points are seen as great steps forward. The single executive agency and the proposed courts' administration councils are welcomed. However, the unions have some worries about parts of the Bill relating to the management of the new systems and about contracting out.

Contracting out is not an easy subject to understand fully and requires some cross-referencing between Acts. In this context, Clause 2 raises some queries in my mind and in the minds of the trade unions representing the employees involved. Clause 2(4) appears to allow for the expansion of contracting out and removes the requirements and safeguards that currently apply: that is, consultations that take place with the senior judiciary, as the noble Lord said.

The Courts Act 1971, as amended in 1994, specifically provides that any proposals to contract out must be examined by four senior judges and both Houses of Parliament before any contracting out of court work can be undertaken. We cannot understand why those safeguards are being removed. The wording of the Bill appears to weaken considerably the safeguards currently surrounding contracting out and the unions involved have raised their anxieties with me and with other noble Lords. My noble friend Lord Lea of Crondall also indicated worries on this issue at Second Reading.

The system of scrutiny that has worked well until now is an important checking mechanism. Not only does it ensure the fair administration of justice; it also maintains the independence of that justice. These amendments have been tabled to reinstate the previous provisions from the 1971 Courts Act as amended in 1994; they redress what we see as a weakening of procedures that have worked well in the past.

Lord Hylton

I hope that whichever Minister replies to this amendment will answer fully the important points raised by the noble Lord, Lord Thomas of Gresford, on the previous amendment; namely, what is the real level of costs in transferring such staffs from their present employers to the Civil Service scheme and why should it be so costly to transfer their pensions? Those questions were not answered at all by the previous reply from the Government. I hope they will be answered now.

Lord Thomas of Gresford

I am grateful to the noble Lord for his support. It seems to me that the Government may have in mind reducing the cost by making more and more employees of the Court Service part of a contracted out service where pensions would not apply to them. That was the reason for my previous question. Putting two points together, is it intended, for example, that all court ushers should be part of a contracted out service? Or the office staff, or the listing officer? So many important functions in the courts are carried out at the moment by people who are fully part of the administration.

To cut costs it would be tempting for the Government to say that they will transfer to the Civil Service pension as full-time employees those who have some judicial function to perform or who have to exercise a judicial discretion, according to the terms of subsection (5) of the clause. That would refer to a limited class of people—perhaps court clerks, but not many below that level. It is possible, it seems to me, that employees will lose considerable rights as a result of this clause.

Lord Bassam of Brighton

Before I refer to the substance of the amendments I owe the noble Lord, Lord Thomas of Gresford, an apology for not addressing his point on costs. I did not have the figures to hand and still do not. I can refer him to the Explanatory Notes at paragraph 290 which gives a broad outline of costs. It says: The current cost of running the magistrates' courts is £435m per annum". Our intention is to ensure that there is a more than adequate resource for the new service. It is perhaps worth putting on the record what was expressed in correspondence on this point by Yvette Cooper, the Minister responsible for the Bill in another place. The letter was to one of the trade union representatives. She said: Funding the new agency. With regard to the point you raised about funding the new agency generally, this will be accommodated from within Departmental spending limits, using appropriate phasing and piloting as necessary. I agree that it is important that the new agency should be properly funded, which is why it will not be established until it is known how the costs can be met. As part of the development of the new agency's blueprint, more work is needed to determine the cost profiles associated with the management of the transfer of pay and pension responsibilities, buildings and associated contractual obligations to the new agency. Until a clear costs profile has been established together with how those costs can be met, clauses bringing the new agency into effect will not be invoked". I am conscious that the noble Lord, Lord Thomas of Gresford, sometimes pokes fun at what he may describe as "management speak", but I believe that this is a clear commitment to ensure that the agency is properly funded, and that until more precision can be brought to bear on the costs and the costs of transferring pay and pension responsibilities, those matters will not be established and put in place. That is a reasonable guarantee to give.

Perhaps I can go a stage further. We shall try to put more meat on the bones and see what more information can be provided in terms of facts and figures. It is only reasonable to make the point that such matters are part of an iterative process, that there is much to work out in the detail and so on, but our clear commitment is to undertake to do that.

We also want to offer reassurance, principally to the noble Lord, Lord Thomas, and to other noble Lords who have been responsible for properly tabling the amendments. There is no plan to expand contracting out as described. Contracting out will be used, as at present, simply to provide some flexibility. It is not part of the transitional plan. We cannot make it clearer or plainer than that. There is no hidden or secret agenda; it is simply to provide the necessary flexibility.

I turn to the amendment moved by the noble Baroness, Lady Anelay of St Johns. Clause 2(4) states: The Lord Chancellor may enter into such arrangements…as appear to him appropriate for the purpose of discharging his general duty in relation to the courts". The clause does not set out all the bodies or persons with whom the Lord Chancellor can enter into arrangements, as that would restrict his flexibility and choice. It is the Government's intention that the Lord Chancellor will be able to enter into arrangements with a range of people or bodies, including, as I said, private companies, self-employed people or independent contractors, as and when appropriate. For that reason, we doubt whether the noble Baroness's amendment is necessary or adds anything, although it is kind of her to have thought of the point. We are grateful to her for giving some further thought to the point, but we see no reason to go further than we have.

I am grateful to the noble Baroness, Lady Gibson of Market Rasen, for withdrawing Amendment No. 10. As the noble Baroness said, Amendment No. 11 would oblige the Lord Chancellor to consult heads of division before contracting out under Clause 2. I doubt whether a specific provision requiring him to consult heads of division is necessary or appropriate. The current statutory instrument, made under Section 27 of the Courts Act 1971—the Contracting Out (Administrative and Other Court Staff) Order 2001—provides for a general power to contract out the provision of services listed in Section 27(1) of that Act.

Given the broad terms of the 2001 order, there is a question over what consultation with heads of division would otherwise achieve. The order is only about the power to enter into contracts; it does not cover or govern any actual or proposed contracts. It is simply concerned with the power to enter into those contracts. I want it in the public domain and on the record that the Lord Chancellor would obviously wish to continue to consult in much the same way that he currently does. Regular consultation is carried out, in particular, with senior judges about contractual matters. We will continue to consult, and the normal processes will continue. The fears that have been expressed about the provisions are not justified. I hope that, in trying to describe the arrangements, I have provided the necessary assurance.

5.45 p.m.

Lord Ackner

Can I intervene without embarrassing the noble Lord? No one is levelling their guns at this Lord Chancellor, but, if we leave the power in without any obligation to consult, his successors would be immune from any obligation. The fact that the noble and learned Lord the Lord Chancellor has wisely consulted on major matters would be history. We need something that will bind his successors, who may not be as generously disposed to the judiciary.

Lord Bassam of Brighton

With the greatest respect to the noble and learned Lord, I must say that it would be a foolish Lord Chancellor who failed to consult. At this stage in these proceedings, we cannot legislate for every future Lord Chancellor and everything that he or she might do. However, we have well established, entrenched practice, which has served us well. Future Lord Chancellors would be ill advised to depart from good, well established practice.

Lord Clinton-Davis

My noble friend will correct me if I am wrong, but, as I understand it, he is conceding that the Lord Chancellor engages in such practices now. What is wrong with including the requirement in the Bill?

Lord Bassam of Brighton

We want to ensure, particularly in creating CACs, that we have the broadest possible opportunities to consult. If we put something in the Bill along the lines of what has been suggested, we may limit our flexibility and close down opportunities to consult those whom we need to consult.

Lord Clinton-Davis

Then, why cannot my noble friend include in the amendment after the words "the Vice Chancellor" something to the effect that the Lord Chancellor may consult such other persons as he deems appropriate?

Lord Bassam of Brighton

Such matters are probably best left to guidance, and the framework document will set out that guidance. It would be more appropriate for us to ensure that consultation arrangements are properly addressed in the framework documents. That is something for the future, but I can give an assurance that those matters will be dealt with directly in that document.

Amendment No. 12 would require the Lord Chancellor to obtain an order before entering into arrangements for the provision of officers, staff or services under Clause 2(4). The new unified courts agency should have the power to enter into contracts for administrative work in the courts as necessary, so that, for example, agency secretarial and clerical cover can be provided. The agency will consult the unions fully about any more significant proposals to contract out for staff, as opposed to directly employing them. I make that commitment.

We see no reason to maintain the provision that the Lord Chancellor must make an order authorising himself to do something. As the order currently in force is in the broadest possible terms, there would be no difference in outcome from that in the existing legal position. Moreover, the Bill specifies that some activities and posts will not be contracted out—justices' clerks, fines officers and officers and staff who discharge functions that involve making judicial decisions or exercising judicial discretion. We have specifically ruled out certain posts from the effects of contracting out.

We are aware of the concerns that the trade unions raised during the preparation of the Bill and their concerns about the ending of the requirement to make an order. I repeat our undertaking that we will discuss those matters further with the unions and, quite properly, report back to your Lordships' House.

I hope that, with that full response, the noble Baroness will feel able to withdraw her amendment.

Lord Thomas of Gresford

I take from the noble Lord's reply that the Government have not done the sums, do not know how much the reforms will cost and cannot introduce them until they have worked out the sums. If it so happens that the Government can balance the books only by contracting out services, they will do that and keep people off the pension fund. Finally, the Government do not want the judges interfering with the Lord Chancellor's ability to do that. That is what the noble Lord has told us in the past 10 minutes. I have the gravest fear that, if that is what happens, there will be considerable trouble among the administrative staff not just of Crown Courts but of magistrates' courts and county courts.

Baroness Anelay of St Johns

I begin by thanking my noble friend Lord Renton for his defence and support of the amendment. First, I turn to my Amendment No. 9. I thank the Minister for his helpful response; although, I am not sure how helpful it was to other noble Lords who have amendments in this group. The Minister has shown clearly that the noble Baroness, Lady Gibson, is right. Clause 2(4) allows the expansion of contracting out in the future. The Minister assures us that there are no plans systematically to expand contracting out. But, as the noble Lord, Lord Thomas of Gresford, said, the potential is there.

I consider that there may be good reasons—I may be on the Government's side for once—at some future stage for contracting out. Where we all agree is that we would consider them good reasons only if there had been proper consultation. I agree entirely with the noble Lord, Lord Clinton-Davis, with regard to the importance of consultation being up front and clear in the Bill. We shall need to look at that issue further.

The Minister said, "Ah, well, yes, we need flexibility on this", but one person's flexibility in management is another person's fracture. We do not want a fractured management. Certainly, at this stage, I shall withdraw the amendment, but it may not be the end of the story.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

Lord Goodhart moved Amendment No. 13: Page 2, line 16, at end insert "(including the functions of a fines officer)

The noble Lord said: I hope that Amendment No. 13 is unnecessary. Clause 2(5) rightly excludes the contracting out of judicial functions. The tines officers are a new form of officer with a duty to improve the collection of fines. I welcome that. Under Schedule 2, a fines officer has powers which clearly appear to be judicial: the power to vary a collection order, under paragraphs 7 and 11; possibly the power to determine the amount of an increase, under paragraph 9; and the power to issue a warrant, make an attachment order or a clamping order, under paragraph 13. Will the Minister assure us that these are regarded as the exercise of a judicial discretion or the making of a judicial decision? If that is the case, it would therefore be clear that the role of fines officer could not be contracted out, which we think is correct. If that is not so and if the role of fines officer could be contracted out to someone who was not a direct employee of the Lord Chancellor, that would be a matter of great concern to us. I beg to move.

Lord Jones

I speak with diffidence, following the noble Lords, Lord Goodhart and Lord Thomas of Gresford. It is clear that we must give full support to the collection of fines imposed by the court—not to do so would countenance the collapse of the entire system. However, there is concern among magistrates that fines officers will have the power to vary a fine without reference to the magistrates who impose them. That could surely undermine the validity of the sentence passed by the court.

Will the Minister consider that point in his response to the debate? Many magistrates would be grateful for a considered view of a matter that greatly exercises them. I know for sure that that is the case in north-east Wales. What checks will there be? What will be done to monitor this scene? How will the fines officer be responsive in all of this? On what grounds will a fines officer vary the fines of magistrates? Is there guidance other than in the schedule and in Clause 31? What links will there be between the magistrates and the fines officers? I was impressed by the point made by the noble Lord, Lord Goodhart, and I hope that the Minister will respond.

Lord Donaldson of Lymington

I had not expected to be in a position to raise this point. At Second Reading, I expressed doubts as to whether the position of the fines officer was compatible with the European Convention on Human Rights. The noble Baroness, Lady Scotland, was kind enough to write to me—stupidly I have left the letter behind—giving the Government's thoughts on this matter. If I have it wrong in recollection, I hope that she will correct me.

My recollection is that, in part, the fines officer will not be acting in a judicial capacity, but merely enforcing decisions already made by the magistrates' court. So be it. However, in part, the letter stated that the fines officer would be acting judicially in providing different remedies for collection of lines. It stated that that would be acceptable because there would be a right of appeal to court. I can see the noble Baroness nodding; perhaps my recollection is not far wrong.

Frankly, I was taken aback by that answer. If that is right, we can abolish the independence of the High Court, because there is always an appeal; we do not have to bother about the circuit court, because there is an appeal to the Court of Appeal; we do not have to bother about vast tranches of courts which no longer need to be independent and impartial and qualify under the European Convention, provided there is an appeal to a tribunal court which does qualify. I cannot believe that I understood the noble Baroness's letter correctly; or alternatively—I hesitate to suggest this as an alternative—that she understands the European Convention correctly.

Baroness Anelay of St Johns

Amendments Nos. 64 and 65, standing in my name and that of my noble friend Lady Seccombe, directly approach the point raised at Second Reading by the noble and learned Lord, Lord Donaldson. As a result of hearing and subsequently re-reading his speech, I decided to draft the amendments. The noble Lord, Lord Jones, has raised an important but wide issue. I do not believe that it would be helpful to the Committee if I rehearsed some of the arguments that will be put in detail later by my noble friend Lady Seccombe.

Lord Bassam of Brighton

As the noble Baroness, Lady Anelay, said, we shall discuss this issue at a later stage. In order to reassure the noble Lord, Lord Jones, and the noble and learned Lord, Lord Donaldson, I should put on record that the role of the fines officer is to manage the collection of fines on behalf of the court through the tines collection scheme. Before a fine may be enforced through the scheme, the court must first make a collection order. I believe that much is clear.

I should like it to be further understood that judicial powers will not be usurped; neither will the power and validity of the court sentence be undermined. The court will continue to take the sentencing decision, but it will be for the fines officer to exercise the purely administrative function of applying any necessary enforcement measures. I hope that is clear. We can have further elucidation when we reach the relevant part of the Bill.

In respect of Amendment No. 13, I am confident that I can reassure the noble Lord, Lord Goodhart, on the point that he raised in the amendment. Obviously, the amendment would prevent the Lord Chancellor from contracting out the work of fines officers. We are grateful to the noble Lord for tabling the amendment, but we question whether it is necessary. An amendment to subsection (5) to prevent the Lord Chancellor contracting out the work of tines officers is, in our view, pointless. Clause 31(1)(a) clearly states that fines officers will be appointed by the Lord Chancellor. No mention is made of the Lord Chancellor being able to make arrangements under Clause 2(4) for the provision of fines officers. There is a distinction, which I am sure the noble Lord will understand.

Therefore, the Lord Chancellor would not have the power or the authority to contract out the work. I gave that reassurance in earlier debate. I hope that that reassurance will enable the noble Lord to withdraw his amendment.

I want to take up the issue raised by the noble Lord, Lord Thomas of Gresford. His summary of the Government's position was far wide of the mark. I am sorry he made the summary in the way he did because it tries to sour the debate. We should today be concentrating on the practical steps that the Government are taking to implement important legislation which seeks to modernise and improve the working of our courts system. We should focus on the reality rather than on an imagined and unconscious attempt by the Government to undermine its proper operation.

I hope that there is no cynicism in the debate because we are trying to improve the way in which the court system works. We want it to be more accessible, understandable and available, enabling the public—the consumers—properly to use it. I hope that we enter into a better spirit in discussing these important clauses and amendments.

6 p.m.

Lord Thomas of Gresford

Is cost not the greatest reality? The Minister says that the Government have not costed the proposal. Surely the consumer—the taxpayer—is concerned with cost. That is reality. I do not want to sound as though I am carping. But like are here to test the Government out on all the details of their legislation. We want to look at what appears to be a large loophole in the provisions of the Bill.

Lord Bassam of Brighton

I shall return to the point. It is incorrect to say that we have not costed the proposal. However, any reasonable person would see that it is right and proper that some of the detail is worked out during the process of bringing forward legislation. We want to ensure that the new system is proper and effective in its running and organisation. That is why we have been necessarily cautious in saying that we want to work out the detail and introduce a pilot scheme.

One cannot be precise at every instance when estimating exactly the breadth of the cost, but we want to ensure that the resources are available in order that the courts work effectively and properly in everyone's interest.

Lord Jones

I rise with practicality in mind and in the best spirit. Does my noble friend categorically say that the fines officer shall not vary the fines imposed by the magistrates?

Lord Bassam of Brighton

I make it clear to my noble friend that the fines officer does not vary the fines but that he will be able to vary the way in which they are collected. That is the point.

Lord Jones

My noble friend, with great courtesy, gave me the answer which I did not want. My question was specific and categorical. Will the fines officer have the power to vary the fines imposed by magistrates in the courts?

Lord Bassam of Brighton

I thought that I was clear. The fines officer will not have the ability to vary the quantum—the totality—of the fine. However, he may well vary the way in which the fine is collected; in other words, the collection period.

Lord Goodhart

Having looked at paragraph 7 of Schedule 2, I am by no means certain that the Minister's answer to the noble Lord, Lord Jones, is correct. However, that matter can be left until our debate on Clause 31 and Schedule 2.

Amendment No. 11 was tabled for debate to take place on the assumption that no alteration was made in the powers of a fines officer under Clause 31 and Schedule 2.

I am grateful to the Minister for putting on record the fact that the fines officer can be appointed only under Clause 2(1) and not by virtue of an arrangement under subsection (4). That satisfies the doubt which prompted me to table Amendment No. 13 and I therefore beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Provision of accommodation]:

Baroness Anelay of St Johns moved Amendment No. 14: Page 2, line 18, leave out "may" and insert "shall

The noble Baroness said: The purpose of the amendment is to make it clear that the Lord Chancellor should not be left with the discretion as to whether he should, provide, equip, maintain and manage such courthouses, offices and other accommodation to be used by the justice system but that he should have a duty to do so. The good old method by which we impose that duty is to change the permissive "may" in Clause 3(1) to the obligatory "shall".

If the requirement under the clause is simply that the Lord Chancellor may obtain the necessary budget and may spend it in the right way, we are leaving open the possibility that he may not choose to do so. That would seem objectionable. To echo a comment made by the noble Lord, Lord Bassam, I cannot imagine that any Lord Chancellor would not want to do so. Only an ill-advised Lord Chancellor would choose not to follow his duty in these respects.

Which Lord Chancellor would not want to make such provision? We allege no such thing against the current Lord Chancellor. Indeed, like the noble Lord, Lord Thomas of Gresford, I am not attacking the personality of any Minister. I am looking at a Bill which will be in place for generations to come and may see many characters come and go. We want to be sure that they all behave in the right way by our justice system.

Would our amendment box in the Lord Chancellor if he wished to take specific action? No, it would not. He would retain flexibility because we have left in place the provision that the buildings and contents he should provide will be those he believes to be appropriate. We therefore leave him discretion on what he does; we say merely that it would plainly be daft if the Bill did not give him the absolute duty to provide the buildings and equipment.

Our amendment guarantees to the public that now and in future the Lord Chancellor will ensure that there is proper provision of the physical resources which support our judicial system. I beg to move.

Lord Renton

Amendment No. 14 is important. In order that justice may appear to be done, it must be carried out in circumstances which impress the people. That can occur only if the courts are properly maintained, are suitable and efficient places in which to work, and where necessary have the royal coat of arms. Therefore, the Lord Chancellor of the day should be under a strict obligation to spend public money on ensuring that the courts are properly maintained. That is why I hope that the Government will sympathise with the amendment moved by my noble friend.

Lord Mayhew of Twysden

I hope that the Minister will feel able to accept the amendment. If not, perhaps I may direct his attention to line 10 on page 3 of the Bill. There he will see, in relation to the establishment of court administration councils under Clause 4, that subsection (5) states: The Lord Chancellor must provide the councils with guidance about the way in which they should discharge their functions". Why is it right to have "must" there if it is not right to have "shall" in the part of the Bill with which the amendment is concerned?

Lord Bassam of Brighton

On the face of it, this seems an innocent and worthwhile amendment. I was sitting there thinking that I should concede. However, on reading my notes again, I have to reconsider that proposition.

It seems a sensible amendment—the noble and learned Lord, Lord Mayhew of Twysden, put it in good terms—but my understanding of the impact is that it would place the Lord Chancellor under a duty, as the noble Baroness, Lady Anelay, said, to provide court-houses and other accommodation. That is certainly the Lord Chancellor's intention and exactly what we want to do. But Clause 3(1) is modelled on Section 28 of the Courts Act 1971. I was not anywhere near government in 1971—I was probably preparing for my A-levels—but no doubt the draftsman considered that what he had drafted at that time was fit for purpose. The important point is that, as the clause is drafted, it empowers the Lord Chancellor to provide such accommodation. Changing the power to a duty would, I am advised, prevent the Lord Chancellor from entering into arrangements with other persons or bodies for the provision of accommodation as set out in Clause 3(2).

That would be the effect of the amendment. To give its impact some body, some life, I am advised that it would specifically prevent the Lord Chancellor from entering into arrangements with people such as the Deputy Prime Minister in respect of any property held by him. The effect of the amendment would be to impose a straitjacket and prevent the flexibility required under the original legislation to allow arrangements to be entered into for the use of properties held by other departments. That is the explanation.

We always pay great attention to suggestions for improving the quality of the wording and we shall certainly have another look at it. But the amendment could have an unfortunate and unintended consequence. We wish to ensure that courts are properly provided for, properly equipped, properly maintained, and so on. That is the intention, as it was in 1971 when the legislation on which the clause is modelled was originally drafted.

Lord Clinton-Davis

Before my noble friend sits down. I fail to understand his logic. I would much prefer that he said here and now that the Government will have another look at the matter. My noble friend has not delivered that assurance. He may have intended to, but we have to observe firm rules here.

A sensible case has been argued. We have an opportunity to look at the matter again. On the face of it, inserting the word "shall" in Clause 3(1) is very sensible. Can I hear from my noble friend again in regard to that?

Lord Thomas of Gresford

I support the amendment. The Lord Chancellor is not going to build the court-houses with his own hands. I do not see how his flexibility to hire other firms to build court-houses is affected by changing "may" to "shall".

I was around in 1971, in a brand-new court-house in Mold—the palace-on-the-hill—which really was splendid. However, on visits there over the past 10 years, as I said in the Second Reading debate, there have been buckets all over the place to catch the water coming through the roof. I believe that the Lord Chancellor has not given the right priority to the maintenance of some of these excellent court-houses. The word "shall" would impose a duty—something to which people could point—and require the proper repair of court-houses currently in existence.

Lord Hylton

The 1971 Act has been quoted as a precedent. I am sure that at that time the concept of private finance initiatives had never been thought of. It is very much on the agenda now. I wonder whether the Government's reply, to which we listened carefully, might not conceal an intention to provide new court-houses by PFI.

Lord Fraser of Carmyllie

One of the oddities of the opposition to the change is that, in replying to the argument, the Minister seemed to address himself to the "may" found in Clause 3(2) rather than the "may" which is the subject of the amendment—leave out "may" and insert "shall"—at page 2, line 18.

It is perfectly appropriate that the Lord Chancellor should be under a duty in subsection (1), but when it comes to the issue of making arrangements he should be given a degree of discrimination and allowed to use his best discretion in these matters. There is nothing incompatible between having "shall" at page 2, line 18, and "may" in subsection (2) at line 21.

Lord Donaldson of Lymington

Would it be unkind to suggest to the Minister that he has overlooked his best point—that is, that guidance is free and putting up court-houses is not?

Baroness Anelay of St Johns

I am grateful to all noble Lords who have taken part in this short debate and for the support of my noble friend Lord Renton, my noble and learned friend Lord Mayhew, and the noble Lord, Lord Thomas of Gresford.

The noble Lord, Lord Clinton-Davis, urged his noble friend the Minister to look at this matter again, but there is no need. As the Minister said, the Government have an opportunity here to do something simple. There is no need to wait. My amendment would not impose any prohibition on the Lord Chancellor from doing his job properly. Indeed, it would ensure that future generations of Lord Chancellors would do their job properly.

I would have been happy if the Minister had stayed with his first comment, that the amendment was innocent and worthwhile and that he should concede. I shall give him a chance to think again by seeking the opinion of the Committee.

6.18 p.m.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 100; Not-Contents, 92.

Division No. 1
CONTENTS
Ackner, L.	Elton, L.
Anelay of St Johns, B.	Fookes, B.
Arran, E.	Fraser of Carmyllie, L.
Barker, B.	Gardner of Parkes, B.
Brooke of Sutton Mandeville, L.	Glenarthur, L.
Brougham and Vaux, L.	Glentoran, L.
Byford, B.	Goodhart, L.
Caithness, E.	Goschen, V.
Campbell of Alloway, L.	Greaves, L.
Carnegy of Lour, B.	Greenway, L.
Cavendish of Furness, L.	Hanningfield, L.
Colwyn, L.	Harris of Peckham, L.
Cope of Berkeley, L.[Teller]	Harris of Richmond, B.
Cox, B.	Henley, L.
Dahrendorf, L.	Home, E.
Dean of Harptree, L.	Howe of Aberavon, L.
Deedes, L.	Howe of Idlicote, B.
Dixon-Smith, L.	Hunt of Wirral, L.
Donaldson of Lymington, L.	Hylton, L.
Dundee, E.	Jenkin of Roding, L.

Kimball, L.	Rodgers of Quarry Bank, L.
Lamont of Lerwick, L.	Rotherwick, L.
Lang of Monkton, L.	St. John of Bletso, L.
Lindsay, E.	Saltoun of Abernethy, Ly.
Livsey of Talgarth, L.	Sandwich, E.
Lyell, L.	Seccombe, B.[Teller]
MacGregor of Pulham Market,	Selborne, E.
L.	Shaw of Northstead, L.
Mackie of Benshie, L.	Shrewsbury, E.
McNally, L.	Shutt of Greetland, L.
Maddock, B.	Skelmersdale, L.
Mar and Kellie, E.	Stewartby, L.
Marlesford, L.	Stodart of Leaston, L.
Mayhew of Twysden, L.	Stoddart of Swindon, L.
Miller of Chilthorne Domer, B.	Strange, B.
Monson, L.	Strathclyde, L.
Montrose, D.	Taylor of Warwick, L.
Moynihan, L.	Tenby, V.
Naseby, L.	Thomas of Gresford, L.
	Tordoff, L.
Newby, L.	Trefgarne, L
O'Cathain, B.	Waddington, L.
Oakeshott of Seagrove Bay, L.	Wakeham, L.
Onslow, E.	Wallace of Saltaire, L.
Palmer, L.	Walmsley, B.
Peel, E.	Walpole, L.
Perry of Walton, L.	Warnock, B.
Phillips of Sudbury, L.	Watson of Richmond, L.
Rees, L.	Weatherill, L.
Renton, L.	Wilcox, B.
Roberts of Conwy, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Graham of Edmonton, L.
Allenby of Megiddo, V.	Grocott, L.[Teller]
Andrews, B.	Hardy of Wath, L.
Archer of Sandwell, L.	Harris of Haringey, L.
Ashley of Stoke, L.	Harrison, L.
Bach, L.	Hayman, B.
Bassam of Brighton, L.	Hilton of Eggardon, B.
Blackstone, B.	Hollis of Heigham, B.
Borrie, L.	Howells of St. Davids, B.
Bragg, L.	Howie of Troon, L.
Brennan, L.	Hoyle, L.
Brooke of Alverthorpe, L.	Hughes of Woodside, L.
Brookman, L.	Hunt of Kings Heath. L.
Burlison, L.	Irvine of Lairg, L.(Lord
Campbell-Savours, L.	Chancellor)
Carter, L.	Jones, L.
Chandos, V.	Layard, L.
Christopher, L.	Lea of Crondall, L.
Clark of Windermere, L.	Lipsey, L.
Clarke of Hampstead, L.	Lofthouse of Pontefract, L.
Cohen of Pimlico, B.	Macdonald of Tradeston. L.
Corbett of Castle Vale, L.	McIntosh of Haringey, L.
Crawley, B.	[Teller]
David, B.	MacKenzie of Culkein, L.
Davies of Coity, L.	Mackenzie of Framwellgate, L.
Davies of Oldham, L.	Merlyn-Rees, L.
Dean of Thornton-le-Fylde, B.	Nicol, B.
Desai, L.	Orme, L.
Dixon, L.	Pendry, L.
Dormand of Easington, L.	Pitkeathley, B.
Dubs, L.	Radice, L.
Elder, L.	Ramsay of Cartvale, B.
Evans of Parkside, L.	Randall of St. Budeaux, L.
Evans of Temple Guiting, L.	Rendell of Babergh, B.
Farrington of Ribbleton, B.	Richard, L.
Faulkner of Worcester, L.	Scotland of Asthal, B.
Gale, B.	Simon, V.
Gibson of Market Rasen, B.	Smith of Leigh, L.
Golding, B.	Stone of Blackheath, L.
Goldsmith, L.	Symons of Vernham Dean, B.
Gordon of Strathblane, L.	Taylor of Blackburn, L.
Gould of Potternewton, B.	Temple-Morris, L.

Thornton, B.	Wilkins, B.
Uddin, B.	Williams of Elvel, L.
Walker of Doncaster, L.	Williams of Mostyn. L.(Lord
	Privy Seal)
Warwick of Undercliffe, B.	Winston, L.
Whitaker, B.	Woolmer of Leeds, L

Resolved in the affirmative, and amendment agreed to accordingly.

6.28 p.m.

[Amendment No. 15 not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Establishment of court administration councils]:

Lord Dixon-Smith moved Amendment No. 16: Page 2, line 37, after "into" insert "a minimum of 25

The noble Lord said: Clauses 4 and 5 contain the core of the way in which the new, unified courts administration service is to operate. I find myself in some difficulty. I suspect, as must most other Members of the Committee, that the Minister must be embarrassed, because she cannot tell us in detail how the system is to work. Whenever we begin to approach the detail, the whole system is "out for consultation" and no decisions are to be taken until we have the results.

I find it passing strange that we should be invited to approve legislation to establish a new system when we do not have a clear picture of what it will be. It is somewhat unsurprising, therefore, that these two clauses have attracted a large volume of amendments.

Perhaps I may begin with a quiet question to the Government on Clause 4(1). It states: England and Wales is to be divided into areas". Is that wording appropriate? England and Wales was certainly a discrete administrative area prior to devolution and the establishment of the Welsh Assembly. However, I am fairly confident that there are those in Wales who would argue that Wales is now a separate entity and that the clause ought therefore to read: England and Wales are to be divided". Although primary legislation can properly apply across England and Wales, the Welsh have particular rights and a particular status.

This is a simple question. It could have been asked by means of a further amendment, but I did not think that appropriate. The amendment simply seeks to add to Clause 4(1) a minimum number of areas for which there should be court administration councils. We are dealing with practicalities.

Amendment No. 17 is somewhat different. It ties the court administration councils to police areas, as happens under the existing system. That point is acknowledged in the response of the noble and learned Lord the Lord Chancellor to the Select Committee on the Constitution in which he acknowledges that the existing limits are to be the base blocks of any new system.

But the Bill does not indicate how England and Wales is to be divided. Theoretically, there could be one court administration council for England and another for Wales. That would be preposterous. But if the scale of the London Magistrates' Courts Committee operation were applied throughout the United Kingdom, one might have eight or nine court administration councils. There would be a logical basis for that, although one could argue that it was impractical. If there were one court administration council to cover the whole of the North, I wonder whether it would take much longer to travel from the east coast to the west coast of that region than it does to travel from the northern boundary of London to the southern boundary, such is the state to which its traffic system has been reduced.

Outside the London area, an area on that scale would be far too big. It would be administratively impossible for a court administration council to operate in an area of that size and to understand local pressures and nuances, which, it is implied, councils must do. So, my first cock-shy—I admit that it is such, because there is no absolute logic in it—is that we should include "a minimum of 25" in the Bill. It is a nice simple number, although it was not the first one that Came into my head. It would allow considerable streamlining of the present system, if it were genuinely desired, but it would have disadvantages. There is much to commend the present arrangements, whereby the magistrates courts, which handle the vast bulk of cases numerically in any event, the police and the Probation Service all work on similar areas.

But the difficulty is that we cannot get any solid information from the Government on precisely what they intend. So my second thought was that we should use the police force area as the basic block, as is almost current practice. It makes a good deal of sense. Large geographic areas would still be involved. A very diligent group of people would be needed to know and understand their area, its pressures and difficulties, and, most importantly, how to improve and streamline a service in the interests of the community they represent.

So, Amendments Nos. 16 and 17 are grouped together. I hope that the Government will indicate not only their reaction—

Lord Renton

I thank the noble Lord for giving way. Is he proposing that there should be as many court administration councils as there are police authorities?

Lord Dixon-Smith

That would be the effect of Amendment No. 17. It is very practical. The new administration must start somewhere. Tying the number of court administration councils to the number of police forces would give us an existing pattern of building blocks. But that does not prevent the numbers from falling. A reduction in the number of police forces, which may happen, would provide an opportunity for a change in the courts administration system. The difficulty is that, under the Bill and from what we have learned so far, we have no means of judging what should happen and whether it will work. I beg to move.

Lord Jones

My Lords, I follow the noble Lord, Lord Dixon-Smith, with some diffidence. In the White Paper Justice for All the Government promised that court management decisions would be taken locally by local management boards. They also stated that, resources can be managed flexibly to meet local requirements". If I understand it correctly, instead we are told that management boards are now to be court administration councils to provide the noble and learned Lord the Lord Chancellor with recommendations, which are not necessarily binding. Might that result in an erosion of local accountability rather than the enhancement promised six months ago by a Minister in a letter to all magistrates? I emphasise that magistrates' courts committees currently include in their membership 12 justices of the peace who practise in the area. Under the proposals, each court administration council would have only one justice of the peace as provided at line 3 on page 3 of the Bill in subsection (4)(b).

It is fair to argue that this will not keep the courts, in touch with the communities they serve", as promised previously by the noble and learned Lord the Lord Chancellor.

Lord Dixon-Smith

I hesitate to intervene on the noble Lord, Lord Jones, but I think that he is debating my next group of amendments rather than the present one.

Lord Jones

The noble Lord, Lord Dixon-Smith, argued so persuasively that he stirred my enthusiasm.

Lord Waddington

I am very glad to follow the noble Lord, Lord Jones, because I agree with almost every word he said. We are entitled to guidance on how many areas it is proposed to divide England and Wales into.

If there is to be only one justice of the peace for each court administration council, it follows, as night follows day, that the council cannot have any meaning unless it covers only a relatively small area. The document that was put in the Library—the so-called statement about the principles which will form the basis of the agency's framework document—refers more than once to local areas. That means different things to different people. I hope that by the end of this debate we will at least have a clearer exposition from the Government as to what sort of areas they have in mind. Only when we know how large these areas are can we begin to debate seriously what the representation on the court administration councils could be. It seems absurd that we should be asked to discuss the councils' composition when we have no idea what sort of areas they will cover. If the Government are to stick to the idea of having only one JP per council, it follows that if those councils are to have any meaningful role, they will have to cover relatively tightly drawn and small areas. We could not have nine or 10 covering the whole of England and Wales.

Lord Mayhew of Twysden

I warmly endorse what has been said by the noble Lord, Lord Jones, and my noble friend Lord Waddington. This is controversial because of the anxiety felt about some provisions that greatly enhance the centralisation of the administration of justice in this country at the expense of the well tried and greatly admired local accountability of magistrates' courts. That is the context.

I hope that the Minister took on board what the noble Lord, Lord Jones, said. Are the Government aware that the Magistrates' Association and the Central Council of Magistrates' Courts Committees are at one in objecting to the proposals? They do not object to them in principle, because they realise that there may be better ways of managing the magistrates' courts than through the magistrates courts' committees, as at present constituted and distributed. But they were reassured to read in the White Paper that, as the noble Lord, Lord Jones, said, there would be true accountability with meaningful local management with an overall guiding national framework for the unified court. Now it appears, from the Bill, that the CACs will not have any decision-making powers. As the noble Lord, Lord Jones, said, even the recommendations provided by the council are due to receive only a measure of due consideration from the Lord Chancellor.

We hope to find an explanation in what the Minister has to say for the U-turn in respect of what the White Paper and the letter in August referred to by the noble Lord, Lord Jones, promised. What is the reason for the U-turn and what is the proposed scale of distribution of CACs? If there are to be only a small number, that is a further blow to local accountability and local contact with the administration of justice, and that is greatly feared from this part of the Bill.

6.45 p.m.

Lord Phillips of Sudbury

Amendment No. 17 is replicated in Amendment No. 23. I think it fair to say that Amendments Nos. 23, 28 and 30, in the names of Members from Liberal Democrat and Conservative Benches, cover the points made by the noble Lord, Lord Dixon-Smith, rather more fully. It may be best to keep our powder dry for later.

Lord Thomas of Gresford

On the specific issue of the numbers of court administration councils, I refer to the letter written by the noble Baroness, Lady Scotland, on 23 December last when she replied to the noble Viscount, Lord Tenby, saying: No decision will be taken about the number of Court Administration Councils until there has been consultation with all stakeholders. Our consideration of these matters will of course take full account of the need to fit with the criminal justice areas (which are clearly a building block of the new organisation), and other considerations (such as the needs of civil and family justice). This is in accord with Sir Robin Auld's recommendation 102". In fact, as I recall from his report, Sir Robin Auld did not approve of the idea of 42 councils. I should like an assurance, once these consultations with stakeholders have been completed, that each criminal justice area will have a court administration council.

The noble Lord, Lord Dixon-Smith, referred to Wales. These matters are not devolved to Wales, but I can understand the Lord Chancellor considering Wales in this respect. The fact that it is easier for the noble Lord, Lord Jones, and me to get to London than to Cardiff is neither here nor there. The temptation to have one court administration council for Wales would be considerable. I look forward to the Minister's assurance that that is not the plan.

Viscount Tenby

Keeping one's powder dry is rather a good thing to do at this stage. Let us not rush ahead too far. We are, as I understand it, talking about the specific amendments of the noble Lord, Lord Dixon-Smith. But since my name has kindly been mentioned by the noble Lord, Lord Thomas of Gresford, let me say that I said what I did on Second Reading in an effort not to dismember the 42 existing councils which are showing signs of succeeding. They have been up and running for only 18 months. To take all that to pieces, petulantly, like a child in a nursery, may be a mistake. If the system is running, we should not muck about with it. That was the point that I was trying to make. As far as the amendment of the noble Lord, Lord Dixon-Smith, is concerned, I am interested to see how the argument develops.

Lord Jones

When the noble Lord, Lord Dixon-Smith, examines Hansard tomorrow, he might see that I constructed my argument around his generous cock-shy of 25.

The noble Lord made an interesting point at the beginning of his remarks on Amendment No. 16 regarding Wales. I thought that I should inform him that the noble Lord, Lord Richard, chairs an all-party commission that has been set up by the Assembly for Wales. The noble Lord might wish to go before that commission with his interesting suggestion or to write to the noble Lord, Lord Richard. I think, however, that he might have more success with the noble Lord, Lord Richard, than he will ever have with the noble and learned Lord the Lord Chancellor.

Lord Waddington

I hope that the Minister will answer this simple question: how can we be expected to agree Clause 4(4)—the composition of a council—until we are told how many councils there will be and how large will be the areas that they cover? Now we are told that the number of councils will not be determined until there is further consultation. In that case, I repeat what I said a moment ago: how, until that consultation has taken place, can we possibly agree the composition of the councils?

Lord Hylton

The Government have a duty to the Committee to disclose the basis on which they have been consulting. Either they must have approached the consultees saying that they had no ideas and wanted to hear their views, or they must have put forward thoughts on the nature and size of the areas. The Government should enlighten us.

Baroness Anelay of St Johns

I support both amendments tabled by my noble friend Lord Dixon-Smith. I well understand why some Members of the Committee may have gone slightly wide of the wording of the amendments. They may have an early draft of groupings that took them further into the Bill. That may well have caused the problems.

As my noble friend Lord Waddington, and the noble Lord, Lord Hylton, have just said, the amendments relate exactly to the crucial point of what the Government are saying when they consult on the number of the councils. If we do not know the number, we do not know how we can advise on how the rest of the Bill should be drafted.

I was intrigued to note in the report on the Bill by the Select Committee on the Constitution that, in response to questions about the number of areas, the noble and learned Lord the Lord Chancellor echoed, but did not quite copy, the answer from last summer quoted by the noble Lord, Lord Thomas of Gresford. The noble and learned Lord said: The 42 criminal justice areas will be the building blocks"— building blocks again— for the new structure, though a specific link to them in statute would be restrictive". It looks like our old friend inflexibility again. He went on: if other criminal justice agencies were to change their area structure, the courts would not be able to adapt quickly". We shall have a full opportunity to discuss that on later amendments, as the noble Lord, Lord Phillips, has said. However, that accusation cannot be levelled at Amendment No. 16, which merely says that there should be a minimum of 25. That gives the Government the opportunity to put clearly on the record the terms on which they have consulted so far. Have they proposed any particular minimum or maximum? In what context are people responding? Can we be assured that we shall have a truly local structure? We do not currently have that assurance. The Government should have consulted first and brought the results to this House.

Baroness Scotland of Asthal

I am in an interesting position. The purpose of the consultation process is to make sure that the local voice is heard and that no arbitrary decision is taken centrally about the number of councils that are necessary to meet the needs of the people of our country. If we did not believe in partnership or in listening to the people who operate the system and to the evidence, it would have been possible to pick a number out of the air and impose it. We thought that would be a fundamentally flawed approach.

The court administration council areas will set the structure for the councils and the new agency with which the councils will work in partnership. It is essential that we choose the right areas so that they are at the right level to have local cohesion and to operate as viable management units for all the courts business in the magistrates' court, the Crown Court and the county court.

There was extensive consultation on the framework and the need for a unified administration. That came from Lord Justice Auld's report and a number of other sources. There is a lot of support for the principle that unified administration will bring many worthwhile benefits.

We are open in principle to the setting of a minimum number of court administration council areas. We do not intend, as some may suspect, to establish as few as possible to water down their influence in some way. However, we need to consider carefully the level at which that minimum should be set so that it does not create an undue restriction. We are not willing to make a cock-shy of it to satisfy everyone immediately. We want to get this right.

The clause already requires that the area structure be set by order, which will give an opportunity for parliamentary scrutiny before the area structure is set. The area structure for the councils and the new agency is one of the issues that we intend to consult on, as all those who have spoken know. We know that the areas will differ one from another. We do not believe that one size fits all. What may be right for Wales may not be right for the North West. I reassure the noble Lord, Lord Thomas of Gresford, that Wales is as precious to us as is England. We would not give up an inch of it. We want a proper balance. We want the right size to meet the needs of each area. That is what we must do.

We have also set minimum standards. There have been comments about the provision for only one magistrate. We are not prescribing that there should be only one magistrate on each council. We are setting that as an irreducible minimum. We shall talk about those issues in due course.

These consultations are taking place across the country, starting this month. The first consultation is on 30th January and they will continue through to April. These events will help us to develop a clearer picture of what the area structure should be and what might be appropriate as a minimum number of council areas. I therefore invite the noble Lord, Lord Dixon-Smith, to withdraw Amendment No. 16.

On Amendment No. 17, the noble Lord is right that the police authority areas are the basis for the criminal justice system structure. However, as the noble Viscount, Lord Tenby, is aware, the criminal justice areas are not exactly the same as the police authority areas. The Metropolitan Police and the City of London Police areas are treated as one. I presume that the noble Lord's intention is to create a link to the 42 criminal justice areas, not to the 43 police authority areas. I shall reply on that basis.

If the court administration councils are to make an effective contribution, their areas should set the structure for the new agency, with which the councils will work in partnership. It is essential that we choose the right areas so that they are the right level to have local cohesion and to operate as a viable management unit for all the courts' business in the magistrates' court, the Crown Court and the county court. On a number of occasions in our discussions there has been a proper concentration on the magistrates' courts, but almost no mention that we are also including the civil and Crown Courts in the new administrative procedure. That is a very important point, because some of our practical gains will come from that unification.

The new structure needs to enable us to improve the services to local community and court users and to operate effectively at the level of the 42 criminal justice system areas, as well as within the business network of the civil and family jurisdictions. We intend to ensure that the court administration councils can make an effective contribution to local strategy, to provide for day-to-day operational decisions to be taken locally wherever possible, to reduce the currently wide variation in performance across the country, to ensure that the public receive consistent standards of service from all courts in all jurisdictions, and to support the judiciary and the magistracy at all levels. If Members of the Committee, looking at the whole country, are already able to say that we should have 27, 31, 42 or 43 councils, then I can only respectfully say that they are in a far better position than I am.

We intend to get this right, not for ourselves but for those who use our courts day in and day out. The noble Viscount, Lord Tenby, is right. The rearrangement into the new areas has brought benefits, which is why we say that it is a building block. We will not injudiciously throw away that which has worked unless and until we discover that there is a better arrangement. We can discover that only by having intense conversations with all the parties across the country who are best able to advise on the best structure. Perhaps 25 is the right minimum number. Perhaps it is 35 or 40. I simply cannot give the Committee that assurance now. Neither am I willing to sacrifice the benefits that will come from that consultative process, as that is how we will ensure sound management for the future.

We are examining the issue as profoundly and thoroughly as we can. Members of the Committee have said that they would like more detail today, and I would love to be able to give them that detail today. However, I give the Committee this assurance. As and when the consultation results come through, we will make that information available to the House as speedily as possible and the House will have an opportunity to discuss it.

I understand the Committee's anxiety about the threat of enhancing centralisation. As I said, however, that is not our intent. I understand, too, the anxieties expressed by the Magistrates' Association and others about the nature of their function. When we come to debate that issue, I shall seek to address those fears. I say now that our intent does not differ; we differ only on how the intent is carried out. The Government share the Committee's desire to ensure that the local nature of service delivery not only continues but is improved and enhanced.

7 p.m.

Lord Waddington

If the areas are going to differ in size, does it not follow that it might be appropriate to have differently composed court administration councils depending on whether they looked after the interests of a large area or a small one? Will we not finish up with the same difficulty when we examine Clause 44? We are supposed to decide the composition of the councils, but we are entirely in the dark as to the number and shape of the areas. If there were a very large area, and therefore a council which had to cover a very large area, there would be a very strong case for a minimum of two, three, four or more JPs on the council, whereas there may be a case for a minimum of only one JP on a council looking after a more compact area.

Baroness Scotland of Asthal

The intention is that there should be a minimum of one. That would be the irreducible minimum. However, the noble Lord is right to say that, because of the difference in need of different areas, the councils may be constructed differently and have different compositions. We propose to ensure that the framework is right. The fundamental principles on which each council operates will be the same, but they will allow sufficient flexibility and variation to respond to local needs. As the noble Lord rightly said, the larger areas may have many more members. Various and differing consultative sub-boards may also be set up. We intend to examine all those issues in detail and they will be included in guidance. The framework document will help us greatly with the parameters. We shall continue to put flesh on the bones. As that flesh becomes manifest, we shall ensure that that information is brought back to the House.

Lord Mayhew of Twysden

I am most grateful to the noble Baroness. However, she has painted a vivid picture of the Government feeling their way through territory which appears to be almost unknown in this consultation, and yet she has not provided an answer to the question that I ventured to ask. What has already been made known to the Government to bring about the change between what was promised in the White Paper and what the Bill currently characterises for the CACs?

Baroness Scotland of Asthal

One Member of the Committee—I cannot remember now whether it was the noble Lord, Lord Thomas of Gresford, in his usual charming turn of phrase, or the noble Lord, Lord Waddington—suggested that the Government had made a U-turn on local management boards. I say absolutely that there has been no U-turn. We have strengthened the local focus.

As demonstrated by our decisions, we have decided that an executive agency that provides a national framework will best respond to the needs identified to us both in the Auld report and in the other assessments of the necessary changes. We thought it important that the external members of what will be the local management board have a statutory identity, and we propose to give them that in the clauses which cover court administration councils. Although some have latched onto the name, we believe that the important point is not the body's name but what it does. It may be called a council or a board. We will examine how the functions between the different parties will operate.

Through the guidance and the framework document, we hope to give not only the Committee but all those with anxieties about the matter, both in the magistrates' community and elsewhere, the types of reassurance about how the arrangements will work that they clearly need. We want to make it clear that our intention as expressed in the White Paper has not changed one jot.

Baroness Anelay of St Johns

Perhaps I may intervene very briefly. As we are in Committee, we have the wonderful luxury of being able to pick up on one or two little points.

It may be appropriate for me to return later, when we come to my Amendment No. 23, to the noble Baroness's comments regarding actions rather than words. I should like now simply to ask her a question about consultation. In a previous debate, she tried to be helpful about the current consultation. She said that the Government will publish the consultation and that the House will be able to debate it. Does she recognise that noble Lords need to have that debate before the Bill leaves this House? In saying that we will have a chance properly to consider the consultation within the context of this legislation, was she undertaking to speak to the Leader of the House to ensure that we do not reach Report stage before we have that consultation?

Baroness Scotland of Asthal

The noble Baroness knows better than I that that is a matter for the usual channels. We have indicated how the timings will run. We intend, as and when we get the initial outcomes from the consultation, to try to make an on-going assessment and share it as soon as is practicable.

As noble Lords who attended the relatively small meeting hat was held will know—I say small because, although it was open to all, few had the burden of attending, perhaps because the fire was then not as evident as it clearly is in the House today—we are not consulting on specific options. Instead, we are using the large and small areas as scenarios. We are asking stakeholders—if the noble Lord, Lord Gresford, wants me to list whom I mean by stakeholders, I am happy to do so again, but it will be in Hansard, if that assists him—what structure they think would best help them to achieve the objectives set out before we present options.

After that consultation process, we will narrow the options, stating what appears to be beneficial and less beneficial. Through that process, we hope to engage people appropriately.

Lord Dixon-Smith

I am grateful to all those who have taken part in this debate and, in particular, the Minister for doing her best in what are exceedingly difficult circumstances to be as helpful as she can. I salute her for that and have every confidence in her in the matter.

However, we still face a dilemma. Procedurally, it would have been perfectly possible for the Government to complete their consultation and take the relevant decisions for us to know what we were doing. However, the Bill is before us and we are being asked to take the decision without knowing in any way how the new system is to work. How can we possibly make a valid and sensible judgment?

The noble Baroness kindly said that the new structure would have to be introduced by order. So it may. That indeed brings the matter before us again, but the procedure for orders is that we accept them or reject them. We cannot alter a comma or a capital letter. On a matter of such significance, I fear that we are being treated in a somewhat cavalier fashion. The other procedure was available under which we could have known what was to happen.

I stick simply to the issue of numbers. I cannot say that I am satisfied with the answer that I have received, because I have not received an answer. Given that, I beg to test the opinion of the House.

7.14 p.m.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 92.

Division No. 2
CONTENTS
Anelay of St Johns, B.	Jenkin of Roding, L.
Barker, B.	Kimball, L.
Brooke of Sutton Mandeville, L.	Laird, L.
Brougham and Vaux, L.	Lindsay, E.
Buscombe, B.	Livsey of Talgarth, L.
Byford, B.	Luke, L.
Caithness, E.	MacGregor of Pulham Market,
Carnegy of Lour, B.	L.
Colwyn, L.	McNally, L.
Cope of Berkeley, L. [Teller]	Maddock, B.
Craigavon, V.	Mar and Kellie, E.
Crickhowell, L.	Marlesford, L.
Dean of Harptree, L.	Mayhew of Twysden, L.
Deedes, L.	Miller of Chilthorne Domer, B
Dixon-Smith, L.	Montrose, D.
Donaldson of Lymington, L.	Moynihan, L.
Dundee, E.	Norton of Louth, L.
Forsyth of Drumlean, L.	O'Cathain, B.
Fraser of Carmyllie, L.	Onslow, E.
Gardner of Parkes, B.	Palmer, L.
Glenarthur, L.	Pearson of Rannoch, L.
Glentoran, L.	Peel, E.
Goodhart, L.	Perry of Walton, L.
Goschen, V.	Phillips of Sudbury, L.
Greaves, L.	Rees, L.
Griffiths of Fforestfach, L.	Renton, L.
Hamwee, B.	Roberts of Conwy, L.
Hanningfield, L.	Roper, L.
Harris of Peckham, L.	Rotherwick, L.
Harris of Richmond, B.	St John of Fawsley, L.
Henley, L.	Saltoun of Abernethy, Ly.
Hogg, B.	Sandwich, E.
Home, E.	Seccombe, B. [Teller]
Howe of Aberavon, L.	Shaw of Northstead, L.
Hunt of Wirral, L.	Shrewsbury, E.
Hylton, L.	Shutt of Greetland, L.

Skelmersdale, L.	Waddington, L.
Stodart of Leaston, L.	Wakeham, L.
Stoddart of Swindon, L.	Wallace of Saltaire, L.
Strathclyde, L.	Warnock, B.
Thomas of Gresford, L.	Wigoder, L.
Thomson of Monifieth, L.	Wilcox, B.
Tope, L.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Hayman, B.
Andrews, B.	Hilton of Eggardon, B.
Archer of Sandwell, L.	Hollis of Heigham, B.
Ashley of Stoke, L.	Howells of St. Davids, B.
Bach, L.	Howie of Troon, L.
Bassam of Brighton, L.	Hoyle, L.
Blackstone, B.	Hughes of Woodside, L.
Borrie, L.	Hunt of Chesterton, L.
Bragg, L.	Hunt of Kings Heath, L.
Brennan, L.	Irvine of Lairg, L. (Lord
Brooke of Alverthorpe, L.	Chancellor)
Brookman, L.	Jannerof Braunstone, L.
Brooks of Tremorfa, L.	Jones, L.
Burlison, L.	Layard, L.
Campbell-Savours, L.	Lea of Crondall, L.
Carter, L.	Lipsey, L.
Chandos, V.	Lofthouse of Pontefract, L.
Clark of Windermere, L.	Macdonald of Tradeston, L.
Clarke of Hampstead, L.	McIntosh of Haringey, L.
Clinton-Davis, L.	[Teller]
Cohen of Pimlico, B.	MacKenzie of Culkein, L.
Corbett of Castle Vale, L.	Mackenzie of Framwellgate, L.
Crawley, B.	Massey of Darwen, B.
David, B.	Merlyn-Rees. L.
Davies of Coity, L.	Nicol, B.
Davies of Oldham, L.	Orme, L.
Dean of Thornton-le-Fylde, B.	Patel of Blackburn, L.
Desai, L.	Pendry, L.
Dixon, L.	Pitkeathley, B.
Dormand of Easington, L.	Ramsay of Cartvale, B.
Dubs, L.	Randall of St. Budeaux, L.
Elder, L.	Rendell of Babergh, B.
Evans of Temple Guiting, L.	Richard, L.
Farrington of Ribbleton, B.	Sainsbury of Turville, L.
Faulkner of Worcester, L.	Scotland of Asthal, B.
Filkin, L.	Simon, V.
Gale, B.	Slynn of Hadley, L.
Gibson of Market Rasen, B.	Symons of Vernham Dean, B.
Golding, B.	Taylor of Blackburn, L.
Goldsmith, L.	Temple-Morris, L.
Gordon of Strathblane, L.	Tenby, V.
Gould of Potternewton, B.	Thornton, B.
Graham of Edmonton, L.	Warwick of Undercliffe, B.
Grocott, L. [Teller]	Whitaker, B.
Hardy of Wath, L.	Wilkins, B.
Harris of Haringey, L.	Williams of Elvel, L.
Harrison, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.23 p.m.

[Amendment No. 17 not moved.]

Lord Bassam of Brighton

For the convenience of the Committee, given the hour at which we have arrived, I beg to move that the House be resumed. In moving the Motion, I suggest that the Committee meets again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to

House resumed