Courts Bill [H.L.]

HL Deb 28 January 2003 vol 643 cc1088-118

House again in Committee on Clause 4.

Lord Dixon-Smith moved Amendment No. 18: Page 2, line 40, at end insert— ( ) Before appointing the members of a court administration council, the Lord Chancellor shall consult judges, lay justices and local authorities serving in the area.

The noble Lord said: At this stage we are dealing not so much with what the noble Baroness, Lady Scotland, said are the Government's intentions but with what is written on the face of the Bill—that is, with the unrestrained power of the Lord Chancellor. I believe the noble Baroness when she says that, in practice, we shall be considering something rather different, but, in part, the amendments are addressed to that issue.

Clause 4(3) states baldly that members of the court administration council, are to be appointed by the Lord Chancellor". Presumably that is a complete and factual statement of the intended position. But, with the Bill as drafted, the Lord Chancellor can appoint who he pleases, as he pleases, subject only to Clause 4(4).

Amendment No. 18 in this group requires the Lord Chancellor to consult judges and magistrates before appointing members of a court administration council for a particular area. From what has been said, I am sure that that is the Government's intention, but it is not apparent from looking at the Bill.

I know that there is an issue as to the significance of what is said on the Floor of this House and on the Floor of another place and its validity in law, but, for the life of me, I cannot understand why, if the things we say on the Floor of the House have meaning, we cannot put them on the face of the Bill where everyone can read them and people outside the House can understand what is going on.

That is a particularly pertinent consideration in regard to Amendments Nos. 19,20 and 21. Clause 4(4) states what each council "must" have. We discussed the word "must" before the adjournment. The subsection states that each council must have one member who is a judge—not two or three or five, but one. It states that each council must have one member who is a lay justice—again, not three or six—and so on. Amendment No. 21 relates to paragraph (d), which refers to, two more members who are persons appearing to the Lord Chancellor to be representatives of people living in that area". The subsection goes on to say that each council "may" have other members. "May" is not an instruction; "may" is a possibility.

We had an interesting discussion on the size of the areas pertinent to the functions of court administration councils. The point was made by my noble friend Lord Waddington and others that the size of an area is relevant to the size of the councils.

The Minister says that Clause 4(4) merely sets out the minimum requirement. It may do—and I am happy to take her word for it. But that is not what is on the face of the Bill. The Bill as drafted states: Each council must have…one member who is a judge…one member who is a lay justice—two other members", and so on.

Bearing in mind that we do not know the areas for which the councils will be responsible—even if we did, I suggest that one such member would not be sufficient—I propose that each council must have, a minimum of 2 members who are judges…a minimum of five members who are lay justices", and, in subsection (4)(d), four members chosen from among those who are elected representatives of the people living in the area", as opposed to the designation in the provision as drafted.

The Minister has often spoken fulsomely—and I am grateful to her for it—of the need to involve local people and to make sure that the local community is fully committed to what is going on. I submit that, given the way in which the clause is worded, she has not fulfilled that ambition. I ask her to give serious consideration to this series of amendments. They go much further in committing the Government to the pledges made by the Minister than does the wording in the Bill as drafted. I beg to move.

Lord Borrie

The noble Lord, Lord Dixon-Smith, is perhaps at a disadvantage in having to propose these amendments after the Minister has commented on the provisions. Clarity was provided in her indication that the number of members in the different groups listed were minima, which many of us understood to be the case anyway, because that is what has to happen. In addition, Clause 4(4) concludes with the statement that each council "may have other members". The Minister indicated that, because in all probability there will be local areas of different sizes, the provision would be suitable for court administration councils of different sizes.

There are further strong objections to the amendments. Amendment No. 18 is surely unnecessary. Why should anyone—unless he or she has a perverse attitude towards the Bill—imagine that the Lord Chancellor would not consult appropriately in making the appointments? There is even greater objection to the other three amendments. Amendment No. 19 refers to judges being, chosen by the judges serving in the area". Amendment No. 20 refers to lay justices being, chosen by the lay justices serving in the area". In other words, they would be representatives rather than people appointed by the Lord Chancellor to do right by their own individual judgment, which is surely what we would want. Amendment No. 21 is even worse. It refers to, four members chosen from among those who are elected representatives", without saying how they are to be chosen. I ask the Committee to reject the amendments.

Baroness Anelay of St Johns

My noble friend Lord Dixon-Smith has given us an important opportunity to try to get some picture of how the Government expect the council to be composed. My approach shall be from that point of view.

First, I have concerns about the mechanics. As my noble friend pointed out, the council must have, one member who is a judge and one member who is a lay justice". But human frailty being as it is, what happens if, sadly, one of those members dies? If the council does not have a member who is a judge, does that invalidate its proceedings, or will provision be made for such circumstances in subsection (5)?

Secondly, my noble friend refers to the way in which the representatives will be selected or elected. Subsection (4)(d) states that each council must have, two more members who are persons appearing to the Lord Chancellor to be representative of people living in that area". Can the Minister give the Committee some idea of what the Lord Chancellor may base that decision on? Will it be on socio-economic profile, for example? What kind of language will the Lord Chancellor seek to adopt in defining how people may be representative? Obviously, that is pertinent with regard to the Government's statements on the future composition of your Lordships' House.

It is important that we have had this short debate because. as my noble and learned friend Lord Mayhew of Twysden and my noble friend Lord Waddington commented before the dinner break, we are being asked to put the seal on something whose real shape and form we know not.

Lord Thomas of Gresford

At present, magistrates' courts committees are elected by other magistrates in the same division. It is right in principle that those appointed to the new councils should be representative in the sense that they have gained the respect and support of their colleagues. Therefore, it is entirely appropriate, whatever their number, that members be elected—magistrates from among magistrates, judges from among other judges, and elected representatives who at least have the support of the population who elected them to their local authorities.

There are elements in your Lordships' House who like appointment; but, so far as I am concerned, legitimacy and accountability come through election. I support the amendments.

Baroness Scotland of Asthal

I am pleased that the noble Lord has been consistent in his desire to have an ever-greater number of elections. I shall bear that in mind in responding.

Before responding to the detail of each amendment, I ask the Committee to look at Clause 4(4) followed by subsections (5) and (6), which should be read together. I am grateful to my noble friend Lord Borrie, whose suggestion of the interpretation that we should give to Clause 4(4) is right. He is also right, therefore, to highlight the fact that "must" is attached to paragraphs (a) to (d), which give the minimum numbers required. Clause 4 also provides that each council "may have other members". That gives us flexibility so that, if necessary, there could be more than one judge.

I know that on other occasions mention has been made of Crown Court judges. En passant, circuit judges in the civil division, not just Crown Court judges, and others will have to be accommodated in the list. Additional magistrates or members of any other category could also sit on the council. The Committee will have noted that there are to be, two other members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience and, two more members who are persons appearing to the Lord Chancellor to be representative of people living in that area". Let me deal with what happens if someone dies. Clause 4(5) states: The Lord Chancellor must provide the councils with guidance about the way in which they should discharge their functions". However, Clause 4(6) specifically provides that: The guidance may, in particular, include provision about the constitution, procedure and quorum of the councils".

8.45 p.m.

Baroness Anelay of St Johns

It may be convenient for the Committee if I raise this point now. My difficulty still is that subsection (4) provides for an absolute minimum. A quorum means nothing if the provision requires that the constitution of the councils includes one of this type of person and one of that. I am worried that someone's dying may therefore invalidate the body as a whole. The Government may wish to consider some redrafting; I do not meddle in this area unless I genuinely feel that the Government should look at something. Perhaps "must" could apply except in the circumstances provided by the guidelines. One should never make suggestions on the hoof—I should have spoken to my noble friend Lord Renton before I dared mention anything to do with drafting—but is the Minister prepared to consider that?

Baroness Scotland of Asthal

I am certainly happy to consider that. We have responded to people's fears and anxieties that there would not be a minimum by saying that there must be one. I should like to reassure the noble Baroness, Lady Anelay, that we wish guidance and direction to be in place to ensure that there is provision for what happens in such and such an event. I am confident that we would be able to replace a member of the judiciary relatively quickly. There may, for instance, be arrangements as to what happens on the council. If a judge is ill and cannot attend, could a deputy stand in, such as a brother or sister judge in the same locality? We must look at the detail to ensure that such a provision is in place.

The real reason that we wanted to include the word "must" in relation to the minimum number was to reassure those who ask how we can guarantee that there will be anybody on the council. They might think, if the councils are subject only to guidance, that a new Lord Chancellor could go off on a frolic of his or her own and say that no judges should be on the council. We wanted the minimum to be provided for, but I understand the anxieties of the noble Baroness, Lady Anelay. I hope that we will be able to do what is necessary in guidance.

Let me deal with the amendments in sequence, starting with Amendment No. 18, in the name of the noble Lord, Lord Dixon-Smith. One effect of the Bill will be to end the requirement for local authorities to fund 20 per cent of magistrates' court expenditure. As the noble Baroness, Lady Anelay, knows, subsection (7) states: A council is not prevented from exercising its functions because of a vacancy among its members or a defect in the appointment of a member". That deals specifically with the point and adds to what I said earlier.

Local authorities used to be responsible for 20 per cent of magistrates' court expenditure. They will continue to be a valuable stakeholder, but I do not believe it appropriate in the circumstances for them to be formally involved in the appointments process, especially as they are not involved in the appointment of MCC members. It will place a burden on them which they do not have currently and which they may not welcome when the funding procedures have been changed.

In devising an appointments process, we will want stakeholders, in particular the judiciary and magistrates, to have confidence in the way appointments to the council are made. We will be consulting with stakeholders on the appointments process at a series of events to be held between January and April. For example, a representative of the local magistracy may be asked to sit on a panel that assesses applicants for the posts against clear criteria. Such an arrangement would be more appropriate than a general consultation.

As well as being inappropriate, the process that the noble Lord proposes seems unduly cumbersome. For the membership of the court administration councils we shall seek a transparent and open appointment process in which members are appointed for the skills that they can contribute to the efficient administration of all the courts.

Much of this discussion has been foreshadowed. Amendment No. 18 relates to who will be on the council and how they will be selected. I have outlined that the process will be transparent. Members could include professional judges, magistrates, people with knowledge of the local area, which might include a local councillor, for example, and people with appropriate knowledge of the work of the courts, which might include a volunteer from the witness support programme, for example. Appointments will be made on merit and will be fair. There will be open competition, with members selected who have the relevant knowledge. It is vital that the opportunity to become a member of the council is open to all sections of the community. In accordance with the Cabinet Office guidelines on public appointments, we are committed to achieving the equal representation of women and men, pro rata representation of members of ethnic minority groups and increased participation of disabled people. Various bodies in the public and non-profit sectors can provide advice and guidance in meeting these commitments.

How exactly will we do this? We can ensure that the opportunities are advertised nationally and locally. As well as the press, we can use other means, such as local open days, websites and advertisements on court notice boards or in public libraries, citizens advice bureaux and local community centres. We can also ensure that our commitment to encouraging minority groups to apply is clearly stated in any recruitment literature. We will continually monitor the selection process to ensure that this commitment is being fulfilled.

We want to ensure that the job specification for what members will be required to do is drawn as tightly as possible for the application process. The process will be competence and skills-based. We need to hear in mind that we are looking for people who can contribute towards the administration of local justice—people who can think strategically, focus on the delivery of services to the local community, be objective and make a positive personal impact. We are not looking for professionally qualified people such as accountants and personnel officers. These roles will be undertaken by officials in the new agency. We want people who can take the wider view without constraint. I hope that is a helpful outline of the way in which we intend to approach the issue.

On Amendment No. 20, Clause 4 requires each council to have a minimum of one lay justice. I have already spoken about flexibility and responsiveness to local situations, which will be vital to the success of the councils. In particular, local membership will need to vary. I therefore invite the Committee to take into account all that I said earlier about the need for that. We think that as a result the councils will be properly representative, as we desire.

The court administration councils are not intended as a substitute for wide consultation with magistrates and judges. We intend that the guidance to councils will include advice on when they should involve Bench chairmen, local magistrates, the judiciary or other stakeholders in their deliberations. The local chief officer will be under an obligation to involve the magistracy, just as the Court Service is obliged now under the terms of the framework document. Benches of magistrates associated with individual magistrates' courts will also still have influence over the operation of those courts. For example, they will continue to be consulted administratively about decisions to assign and replace justices' clerks. Benches and Bench chairmen must all feel that they have productive relationships with their clerks and administrators.

We want magistrates to have a say in how they should be consulted. As I said, the answer may vary from area to area. It is right that the arrangements we put in place should allow that. We will explore whether it would be appropriate for the court administration councils to establish consultative arrangements with the magistrates in their areas through, for example, a consultative panel. We will also make it a requirement that magistrates on the councils should be serving in the local justice area for which the council is responsible. That seems to be a reasonable requirement, and we shall give it further consideration. I very much heard what the noble Baroness, Lady Anelay, and other Members of the Committee said about that.

Finally, we have not yet decided on the process for selecting individuals to sit on the council. We are clear, however, that the process must be fair and open and that the aim is to select the individuals with the most appropriate skills and experience. We want the process of appointing magistrates to the council to command the respect of the magistracy and of other stakeholders. I am not convinced that the procedure recommended by the noble Lord, Lord Dixon-Smith, would achieve that objective. As I said, the appointments process is one of the issues on which we will be consulting in events from 30th January until April. The appointments process will be in line with the Code of Practice on Public Appointments. We will want to learn from the experience of the MCC members who are appointed by selection panels of local magistrates.

I therefore invite the noble Lord, Lord Dixon-Smith, to withdraw his amendment.

Lord Waddington

Can the noble Baroness help me with regard to Clause 4(6)? It states: The guidance may, in particular, include provision about the constitution…of the councils". It is the constitution that I am worried about. Will we in Parliament have knowledge of that guidance?

Baroness Scotland of Asthal

We are very sensitive to what a number of Members of the Committee have said about the need to look at the guidance. We are taking it back and investigating what opportunities there may be for scrutiny. We certainly understand the need that has been expressed both today and previously. It is important that Members of this place—and perhaps eventually Members of another place—have a much better and clearer idea of exactly what will go into the guidance. We will try to do that as best we can.

Baroness Anelay of St Johns

I am grateful to the Minister for answering my concerns about Clause 4(4). She directed me, very properly of course, to subsection (7), to which I was going to refer in later debates. The difficulty is that that subsection could inspire the very fear that she was rightly trying to allay. It could be alleged t hat subsection (7) is a way of getting round the minimum set in subsection (4). However, I do not seek to take the issue further now. I think that she and I are trying to reach the same objective. I am just not convinced that the current drafting helps to take us there.

Baroness Scotland of Asthal

I think that it does help. Earlier, the noble Baroness expressed the tension as follows: what if we do not have the minimum number and this provision is cited? We are confident that all the councils will have at least one judge, one magistrate and the other minimum numbers for which we have provided in paragraphs (a) to (d). It is likely, however, that a number of councils will have more than one of each. The expectation is that a great number of them will have more than one.

Subsection (6) sets out the guidance that may include provision about the constitution. That minimum will therefore be preserved. Subsection (7) ensures that, in the event of the circumstances that the noble Baroness, Lady Anelay, outlined—such as a member's death or illness—the council's acts are not invalidated by a short hiatus. That is why I am attached to the minimum; I would not want it to be removed or in any way watered down. Subsection (4) concludes by stating that we may have more than that minimum. In the guidance and other constitutional arrangements, we have an opportunity to state what should happen in the event of a death or similar event in order to make the arrangement valid. Subsection (7) specifically deals with the hiatus.

So it is unnecessary for us to undermine or touch that provision. However, several noble Lords have expressed their anxiety about certainty and we want to give the assurance that there will be no games playing and that that will be the least that the councils will have. Of course, we hope that many of them will have many other constituents, dependent on the needs of their area.

9 p.m.

Lord Thomas of Gresford

I listened carefully to the Minister but she has not answered my question. Why is straight appointment by the Lord Chancellor preferable to some form of representation?

Baroness Scotland of Asthal

I assume that the noble Lord suggests that all the posts be put up for election. Perhaps we could have an election by the judiciary. I invite him to think for a moment of the prospect of electing a High Court judge to sit on the matter and how long the college might take to decide on who needs that. It has always been convention that the divisions in the High Court have been able to come to an accommodation on how they allocate judicial time to fulfil such requirements.

The magistrates' courts have had the benefit of the panel. We shall consider the different nature of those whom we want to attract. However, at present, we do not have an election process for all public appointments. I respectfully suggest to the noble Lord that it would be extremely difficult if we did.

Lord Dixon-Smith

I am most grateful to all noble Lords who have taken part in this interesting discussion. It has at its roots the question of ownership of the local consultative council. Will it be a creature of the Lord Chancellor, or will it, as it properly must, be a creature of the local community? I hear what the noble Baroness has had to say. Our difficulty, as the Bill is drafted, is that the council could be interpreted as being the creature of the Lord Chancellor. I am clear about what she said, which is that it must be the creature of the local community. However, this is not a question of who holds the title deeds; it is a much more subtle question.

My amendments were intended to enable us to explore that question. We have had a useful debate. The noble Baroness may find it frustrating to have to keep repeating herself, but that is part of the purpose of the operation. Some interesting points have been raised. The noble Lord, Lord Thomas of Gresford, made clear that, if the council is to be effective, its members must have the support of their colleagues in the area. There is a question about how we arrive at that result, but if the council is to have the respect of the area that it is supposed to serve, that is essential. We cannot avoid that.

The noble Baroness said that the Bill ends the requirement of local authorities to fund 20 per cent of the expenditure. I accept that. However, I do not see the relevance of that to the constitution of the court administration councils. Court administration councils will have some local representation but that is not related to the question of funding, as I understand it. It is related to the question of having people on the court administration councils who know the area, who know what is going on, who know what the political—with a small "p"—questions are and who know the political background as a matter of instinct without being necessarily political. In that sense the question of expenditure is not relevant. Local authorities in the area of any court administration council will still be stakeholders in the area. If one completely ignores the question of elected members, the matter can become fraught with difficulty.

I heard what the noble Baroness said and will study it with some care. I rather infer from what she said that if I simply tabled an amendment stating what I considered to be the minimum in this matter she would not object to it although she might consider that it was unnecessary. I may be tempted to do that at a later stage. However, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

[Amendments Nos. 19 to 21 not moved.]

Baroness Anelay of St Johns moved Amendment No. 21A: Page 3, line 10, after "must" insert "by order

The noble Baroness said: In moving Amendment No. 21A, I wish to speak also to Amendments Nos. 21 B and 22. I can speak more briefly than I had expected due to the helpful intervention of my noble friend Lord Waddington.

These amendments relate to the issuing of guidance. I note that the Constitution Select Committee's report on the Bill drew attention on page 4, paragraph (b), to the procedural requirements for guidance which will be given by the Lord Chancellor under Clause 4 as it stands. The committee's report states that it is not clear whether such guidance is to be binding on the councils, whether it is to be publicly available and whether it may contain specific as well as general directions. I seek to probe the Government on those matters. I have read the response of the noble and learned Lord the Lord Chancellor to the committee. Will the Government give us assurances about what they will do between now and Report as regards considering the way in which these matters may be brought before Parliament for scrutiny?

In the course of the discussion that the Minister was kind enough to hold recently—those who attended were, regrettably, a select few but we obtained good value from the Minister and her advisers—and, indeed, during the course of discussion tonight, the Minister has said that the Government are prepared to consider how they can make the functions of the CACs more clearly subject to parliamentary scrutiny. One way of doing that that was mentioned at the briefing meeting was to refer to the guidance in more forceful terms in the Bill. I refer to issuing the guidance by order. Has the Minister considered that matter further since the briefing meeting? Can she tell us the results of that consideration? Will she undertake between now and Report to consider the matter so that if I were to table an amendment on Report she would be able to respond to it more fully at that stage? I do not propose to take the matter further at this point. I beg to move.

Lord Goodhart

I strongly support these amendments. To some extent the debate we are having on this group of amendments, like the debate we had on the two previous groups, is really a curtain raiser to the major debate which we shall have on the next group. That group will try fundamentally to replace the scheme of the Bill by creating the area court management boards, which are intended to fulfil—perhaps rather more than fulfil—the role that we thought was envisaged in the White Paper of the area consultative councils as local management boards. One considers the amendment on the assumption that the amendments in the next group will not ultimately succeed, so one is looking at a situation in which area consultative councils still exist.

If that is so, the amendment would be essential, because the guidance is crucial to the whole operation. Like the noble Baroness, Lady Anelay, I was present at the briefing meeting at which the Government told us about all sorts of their excellent plans for what the court administration councils would do. That came close to what we envisage as a proper role for the local management boards. The trouble is that there is nothing of that whatever in the Bill.

That is a major problem for us. Even if what the Government now propose were carried into effect, nothing would prevent any future Lord Chancellor or Minister of justice from changing the whole scheme and producing something much more subject to central control, with much less local involvement. Therefore it seems essential that, if we cannot manage to get the scheme into the Bill, it should at least be in regulations, which are subject to parliamentary control. In view of the importance of the matter, we believe that approval of the guidance should require the affirmative procedure, as proposed in Amendment No. 21B.

Surprisingly, Clause 4(6) states: The guidance may, in particular, include provision about the constitution, procedure and quorum of the councils". That quintessentially seems something that one would expect to see in regulations, not merely in guidance. If that becomes material because we are unable to force the Government to put the matter into the Bill, we would regard the amendment as an obviously inferior but essential alternative.

Lord Waddington

My only criticism of the amendment is that it does not go far enough, for the reasons advanced by the noble Lord, Lord Goodhart. It seems extraordinary that we should want guidance about the way in which councils should discharge their functions to be laid down by order, but should not at the same time demand that provision about the constitution, procedure and quorum of the councils be laid down by order. I would like the noble Baroness to explain why the Government do not recognise that it is important that the power in subsection (6) be possible to implement only by order.

Baroness Scotland of Asthal

As I said at the meeting, I want to say straightaway that, in terms of what the Government want and what Members of the Committee have expressed, we are very much at one. That particularly applies to what the noble Baroness, Lady Anelay, and the noble Lord, Lord Waddington, have indicated today, and to what the noble Lord, Lord Goodhart, said about the purpose and the nature of these issues. We are considering how to give voice to that in a meaningful and satisfactory way. I understand absolutely that Members of the Committee are concerned to ensure that the guidance receives appropriate parliamentary scrutiny.

I have explained why I am not in a position to undertake to provide the Committee with a draft now. However, the Government are committed to ensuring that those who use the services offered by the courts, those who dispense justice within them and those who work to support the delivery of justice within them are consulted throughout the process of developing the new system of courts administration. The series of stakeholder events, which I have now mentioned on a number of occasions—they are planned from the end of this month through to April—will involve them in developing that guidance.

I have noted the concerns that Members of the Committee have expressed in general on this issue. I will consider all the amendments that have been put forward, with a view to ensuring that once the guidance is developed, it will be subject to appropriate parliamentary scrutiny. I can say now that I am not opposed in principle to the guidance taking the form of a statutory instrument, although I believe that the noble Lord, Lord Goodhart, is probably right to say that it would probably be more appropriate to do that in regulations rather than in an order.

Members of the Committee will have noted that all the technical provisions about proposed statutory instruments are located in one place; that is, Clause 97. That would be the place in which to specify whether the negative or affirmative resolution procedure should be used. I cannot give a guarantee at this stage but I can certainly say that we are looking at the matter in a concrete way to try to ensure that the best route is taken to give some reassurance in a form that the noble Lord finds acceptable. We will therefore need to consider the spirit of the amendment in the context of the drafting of the Bill as a whole. We very much take on board the thrust of what is said in this regard.

I hope to be able to give the noble Baroness, Lady Anelay, a more positive and definitive response on Report, but I am not able to do so now. We must consider all that is said in relation to the other parts of the Bill to establish how best to manage what has to go where. I am happy to assure Members of the Committee that we are by no means resistant to the thrust of the comments that have been made.

9.15 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister for those remarks, which may describe her overall approach in this regard—that she is prepared to look at the matter. My noble friend Lord Waddington is right: these amendments definitely do not go far enough and I should not have pressed them on that basis. I tabled them as the opening salvo—a gentle one—in the hope that we can entice the Government into doing the right thing. Of course, the opening salvo may turn into a deafening roar on Report if we are not able to find the right way forward in this regard. Because I am assured that we will go into much greater detail on Report, I shall not take up the time of Members of the Committee further at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21B and 22 not moved.]

Baroness Anelay of St Johns moved Amendment No. 23: Leave out Clause 4 and insert the following new Clause—

"AREA COURTS MANAGEMENT BOARDS

(1) For the purpose of implementing this Part, England and Wales shall be divided into areas.

(2) For each area there shall be a board (referred to in this Act as an "area courts management board") which is to exercise the functions conferred on it by virtue of this Act and any other enactment.

(3) Schedule (Area courts management boards) (which makes provision about the constitution of area courts management boards, their powers and other matters relating to them) is to have effect.

(4) References in this Act or any other enactment to an officer of an area courts management board are references to—

1. (a) any member of the staff allocated to an area courts management board to exercise the functions of an officer of the board, and
2. (b) any other individual exercising functions of an officer of an area courts management board by virtue of section 5(2).

(5) The initial areas for the purpose of implementing this Part are—

1. (a) the police areas listed in Schedule 1 to the Police Act 1996 (c. 16) (police areas), and
2. (b) the area comprising the Metropolitan Police District and the City of London Police Area.

(6) The division of England and Wales into areas for that purpose may be altered from time to time by order made by the Lord Chancellor.

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 28 and 30. These amendments appear in my name and those of the noble Lords, Lord Goodhart and Lord Phillips of Sudbury.

I propose to set the scene by explaining why we tabled the amendments. That history will be well known to Members of the Committee but it may not be as well known to those who read our debate in Hansard. I leave the meat of this matter—the reasons behind the amendments and the way in which they work—to the noble Lord, Lord Phillips of Sudbury, to explain later.

Briefly, the effect of the three amendments would be to create a structure that we believe is preferable to the CACs. We believe that it is vital for the local structure to be the authoritative voice of local justice. I am grateful to all those who have briefed us on these matters—in particular, the Central Council of Magistrates' Courts Committees and the Magistrates' Association, both of which support the amendments.

I note, in particular, that over the past couple of months the Magistrates' Association has taken care to consult its 30,000-plus members to ensure that there is support for any action that it might take over these amendments. Indeed, members feel so strongly that they have written directly to noble Lords on this side of the Chamber. I have received letters from, among others, the branches at Bromley and East Yorkshire, whose members very much support the amendments that we have put forward today and who object to the Government's plans for CACs.

I make it clear from the start that none of us will argue for the status quo. We have not objected to the abolition of magistrates' courts committees per se, and we have not sought to oppose the Question that Clause 6 stand part of the Bill. But we do want to move on to a better system for delivering local justice. We argue that, if the committees are abolished, the replacement structure must be better. At present, we do not consider that the CAC structure is better. We are trying to find a system that is.

At Second Reading, we went into detail about how we felt that the Government had done a U-turn. I shall not repeat all those arguments now. In her letter to noble Lords and, again, tonight, the Minister said that what is important is the substance of the role, and not the name. I agree with her. But the difficulty is that we say that the substance of the role of CACs as set out in the Bill is simply not acceptable. It is not merely the name; it is the substance. It is not what the Government first offered in their White Paper. We are afraid that we shall end up with a mere talking shop which will not earn local credibility or respect.

Very briefly—as I said, I shall leave the meat of this issue to the noble Lord, Lord Phillips—the amendments are as follows. Amendment No. 23 seeks to insert a new clause to establish area courts management boards. They will enable national priorities to be interpreted in the light of local circumstances and local needs. The boards will be corporate bodies. Their boundaries will match those of the 42 criminal justice areas for England and Wales. They will be based on police areas but will treat the Metropolitan and City of London as one criminal justice area rather than two police areas. I set that out in response to a comment made by the Minister. I hope that the explanation is sufficient.

The objective of the structure is to maintain and enhance local capacity to meet the Government's aim of improving efficiency by creating common boundaries across all the agencies in the criminal justice system. Our objective is to make the local bodies definitely the authoritative voice of local justice. I beg to move.

Lord Borrie

I do not know whether it is appropriate to intervene at this point. If it had not been for the matter of proposing the resolution, I would have sought to intervene before the noble Baroness, Lady Anelay, sat down. This series of amendments deals with the functions, powers, constitution and so on of court management boards. Are the amendments meant to apply not only to the administration of magistrates' courts but also to the administration of justice in the Crown Court and county courts so that the present existing unified system under the Court Service would be changed completely to that of a locally administered service in X number of areas?

Baroness Anelay of St Johns

The noble Lord, Lord Borrie, has jumped ahead. I was trying to present the case in a dual way in that I would set the scene and the real explanation would come from the noble Lord, Lord Phillips of Sudbury, who, as a lawyer, is better able to provide that. This is passing the buck and enjoying it.

The amendments are put forward for a sensible reason. As the noble Lord, Lord Borrie, will be aware, both these Benches and the Liberal Democrat Benches have worked very closely on this matter with the Central Council of Magistrates' Courts Committees and the Magistrates' Association. Therefore, it would be wrong for me to jump in and answer the noble Lord's question, which, I believe, should properly come at the end of the speech of the noble Lord. Lord Phillips. However, if he is still unhappy at the end of that, I shall certainly be delighted to come back and answer any further questions.

Lord Phillips of Sudbury

I believe that I can answer the pertinent question posed by the noble Lord. Lord Borrie, by saying: largely, yes. The effect of these three long amendments is to turn the tables on Clauses 4 and 5 so that the ultimate, decisive powers will rest with the board—I shall speak to that in a moment—rather than as Clauses 4 and 5 state, with the Lord Chancellor. We understand how fundamental the change is; we also understand that there will be ramifications in the directions that the noble Lord, Lord Borrie, enunciated and there is no amour propre about the particular arrangement here. If necessary, we shall have time to change the wording and the disposition of provisions before the next stage.

We are dealing with an argument about where power should lie ultimately, although it has been heavily disguised by what the Government have said and by what the noble Baroness has said here and at the meeting. We are not dealing with recommendatory or consultative power, but with real decisive power. On these Benches we are at one with the Conservative Benches and we believe that no good case, no remotely sufficient case has been made for what would be a radical departure from an age-old system that requires improvement and requires movement in the direction in which other parts of the Bill take it, but which does not deserve this fundamental upheaval in terms of powers.

I shall briefly read from what the Magistrates' Courts Service Inspectorate said in its 1998–99 report which was confirmed the following year: on the whole the MCC structure seems still to work well. It has shown itself capable of reform, and of increasing efficiency and effectiveness. The challenges help MCCs to strengthen their membership and improve their procedures to meet the new requirements". This debate is bizarre. Again and again in her replies the Minister does not refer to the provisions in the Bill, but to provisions that are not in the Bill and to proposals that the Government may advance, whether in the form of guidance or whatever else in the future. We must bear in mind that on this Bill we have the cart before the horse, with the consultation coming after the Bill is debated. We are at the start of much of the consultation process.

It is all very well for the Minister to say that hereafter we shall have to put flesh on the bones; it would be better to say that we should put flesh on the skeleton. So much of the essential substance of what should be in the Bill is not there. The noble Baroness is never less than gracious and never less than helpful. But it is not sufficient or right for the House to deal with such a hugely important piece of legislation on the basis of trust, hope and expectation, particularly when it concerns where power lies. The power is being removed from where it lies at present to another place, in fact to the Lord Chancellor who is centralising the whole of this unified system in his own hands.

Where power is concerned, a bird in the hand is worth two in the bush. When dealing with the Government and with Whitehall I suggest that a bird in local hands is worth 10 in any Whitehall bush. It is all very well to talk about the efficiency and improvements that the Government have asserted will result from their grand designs, but it rarely appears to come to pass. There is an amount of scepticism among magistrates. They look at the centralising reforms in education, health and transport and they are not encouraged. If one compares the rhetoric that preceded reformation Bills with the aftermath, one will understand. We have been through such a situation with the county police committees and probation committees. There was precisely the same kind of attempt to centralise ultimate power in Whitehall—in a Minister—and, wisely, we rejected it.

The central issue of whether this is a shift from what preceded it needs to be knocked on the head. It would be like something from Alice in Wonderland if we were to pretend that the White Paper was not different from what is in the Bill. I shall remind the Committee what the White Paper said: We expect the decision making to be decentralised to the local management boards". That is not consistent with Clauses 4 and 5, however eloquent or ingenious the Government's advocate. The clauses give no decision-making powers to the councils, which are not management hoards anyhow.

We should examine what is provided for in the clauses. The Lord Chancellor appoints every person; the Lord Chancellor gives guidance; and the Lord Chancellor receives recommendations to which he must have regard. The 30,000 magistrates in this land think of the recommendations that they are asked to make about court closures. There is a right of appeal to the Lord Chancellor with regard to a court closure, the sort of appeal that the noble Baroness said that we might get for certain other matters with regard to the Bill. The Committee will know that the number of occasions on which an appeal to the Lord Chancellor against a court closure has been upheld is infinitesimal. There is scepticism about such arrangements.

I also notice that the issue of the composition of the councils has come up several times. The noble Baroness said that the Government had provided for—I noted the wonderful phrase that she used—"an irreducible number" of magistrates on the councils. I can tell the Committee why it is an irreducible number: it is one. I marvel at the passion with which the Minister assuages the fears of paranoid magistrates. At the moment, there are 12 on magistrates' courts committees. What is one among six?

As the noble Baroness, Lady Anelay of St Johns, said, there is huge discontent among magistrates. They are slow to anger. They are judges. They are deliberative, sensible people. However, they are now extremely concerned about what is in train. If the Magistrates' Association is thought to have been slow to gird up its loins, that is because it has consulted 30,000 magistrates. It is a charity and feels inhibited about the strength with which it expresses its views.

I shall read another document that may help us better to understand why the magistrates have no faith in an administration that will not put anything in the Bill. I have a court circular that was issued at the end of November, under the name of Mark Swales, the criminal courts' business redesign manager. It says: The Bill provides for a summary offence to be treated in the same way as an indictable offence and will allow proceedings to be brought anywhere in England and Wales, rather than just in the 'LJA' where the offence is committed. This will have the effect of reducing delay by allowing bulk processing of cases and will allow specialist courts within an area to hear certain types of cases. Whilst the prosecutor will decide the court, they will do so in accordance with directions to be issued by the Lord Chancellor, with the concurrence of the Lord Chief Justice, as to where the cases are to be heard. The directions will state that people should appear before a court in the local justice area in which the offence was committed, or suspected to have been committed unless other factors are applied, such as the hearing of bulk issue cases in a particular court, the hearing of cases by a specialist court or the convenience of witnesses and victims". That sort of scenario—a magistrates' court system run by administrators who think in terms of bulk case management—has added greatly to the anxiety felt by all justices. Those in east Yorkshire put it rather well, when they said that, the most important feature of the current magistrates' court system was that local justice was dispensed by local magistrates in local magistrates' courts, managed by a local magistrates' courts committee". The Government talk about the increased accountability of the new councils, but no one has made the point that lay justices are intrinsically accountable in a way that professional judges never are. They are butchers, bakers and candlestick makers from the community over which they preside. That is the last surviving element of justice of the people. by the people and for the people. If we take away from them the powers that they have left to organise justice in their petty-sessional divisions and in their magistrates' courts areas, their belief is that a number of factors will follow from that. Local magistrates' independence will be affected; the dictates of administrative convenience—the so-called efficiency which is one of the statutory aims of all this—will override the interests of justice; their jobs will be less interesting; their roles will have less status; and local justice will go down the pan. And local justice—although much lip service is paid to it—is the cornerstone of the lay justice system. If the magistrates cease to have familiarity with their localities and their people, and they cease to be able to have regard to local sentiment, a great deal will have been lost. It is no good the Government pretending that this issue is not part and parcel of the consequences of going down this road.

Therefore, I say to the Government that they must take on board that decisive powers must rest with local management boards. Nothing else will do. It is an irreducible requirement. The Government must understand that; it is no good relying on 101 elements of soft soap.

Finally, the delivery of justice is hugely complex. There are always elements that can be improved. However, by and large, this is a system that has stood the test of time. I urge the Government to have regard to the prospect of losing some of the best magistrates now serving—as is happening in some counties. I see the noble Lord, Lord Bassam, looking askance at that. The evidence from magistrates' courts committees is—this is not my view, but at Second Reading I quoted from the report of the Suffolk magistrates' courts committee—that good magistrates are folding their tents and saying, "Enough is enough". Recruiting the best magistrates is becoming more difficult. The decline of status and morale are devastating to the magistracy as a whole.

I do not need to spend much time on the amendments because they are self-evident. If anything, they are too long. But it is abundantly clear that the proposal does not simply remove all power from or retain all power with the proposed area courts management boards. In Schedule 1, the Lord Chancellor is given a whole raft of intervening powers. In subsection (7) of the new clause proposed in Amendment No. 28: The Lord Chancellor may determine whether any provision made by an area courts management board under this section is sufficient". He can intervene with a management order under subsection (12); he can intervene in the composition of the boards; he can give direction to the boards. Therefore, it will not be sufficient or satisfactory for the Government to pretend that this is denying the Lord Chancellor the necessary powers to take steps where a management board is failing in its tasks.

I shall leave these three amendments at that. but urge them on the Committee.

Lord Jones

Within these amendments is the core of the belief that our courts should be rooted in the locality. Any mooted central control in these debates has been cast as negative and unwelcome. Ministers disagree and give assurances. Reform and value for money there must be and, perhaps occasionally, even court closures. The noble and learned Lord the Lord Chancellor must surely be in leadership in this.

My anxiety is that as a consequence of necessary reforms our local magistrates, their courts and their structures are cast down. That is what I fear. I fear that something highly valuable and very precious will be lost in the consideration of new legislation. My noble friend Lady Scotland is leaning over backwards to do the right thing and to assuage our concerns. I want to emphasise that magistrates give so much, but I note that many are standing down. Recruitment is becoming more difficult, particularly of younger magistrates whom we now need.

I am grateful to the noble Lord, Lord Phillips, for succinctly expressing his support for the amendments. He referred to the Magistrates' Association, to court closures and to the organisation Justice. Magistrates are volunteers. They serve with distinction and often for decades. They become expert, wise, mature and capable of dispensing good local justice. My judgment is that they might lose confidence if they see any significant loss of the current local grounding of the organisations within which they now serve. The ultimate and decisive powers should remain in the locality. That was the cry from the noble Lord, Lord Phillips, during his impassioned remarks today.

The magistrates are local and accountable. The blunt fact is that the system of the magistrates' courts as described is successful. They are working. It is a British phenomenon and it has emerged slowly. It should not be humbled or dismantled. My noble friend the Minister is not intent on premeditated mischief and she will always listen and respond to widespread concerns throughout England and Wales.

Lord Thomas of Gresford

It is a pleasure to follow the noble Lord, Lord Jones. We live perhaps 10 miles apart in north-east Wales and it may be that our confidence in the magistracy depends on the locality from which we come. I strongly suspect that the magistrates of north-east Wales are replicated all over England and Wales and are all of the same quality.

It is interesting to see how the Government have reached this position. The Auld report made no recommendation. The report at page 294, paragraph 73, having recommended the abolition of the Courts Service and the magistrates' courts committees, stated: It would be for others to determine the most practical way to link administratively and geographically the three Criminal Court divisions that I propose and the civil and family courts". We are concerned with two divisions and not three. The issue next surfaced in the House of Commons on 9th July 2002 when Yvette Cooper said: It is important that decisions about courthouses and the provision of services at the local level be taken as far as possible at the local level, by the people who have the experience and the knowledge of local circumstances". She is the Parliamentary Secretary to the Lord Chancellor's Department and she refers to "decisions". She went on: That should continue. It is part of the current system that it is a matter for magistrates courts committees in the first instance to make decisions about court venues and where services should be provided. We need to retain such local decision-making. It is also important that rural decisions are taken into account.—[Official Report, Commons, 9/7/02; col. 736.] In the White Paper, Justice for All, published in that same month, the proposal was for unification of the courts administration as we know it within the single agency. It was said that the key was the proposal to establish local management boards, which would continue to provide a role for magistrates in the strategic management of their courts but which would also bring on board the local judiciary and members drawn from the wider community. Nothing could be more straightforward than those two statements—in understandable, clear English—from Yvette Cooper and from the White Paper, Justice for All.

But then the English began to get turgid and difficult to follow. A written statement was laid in the Library on 4th December, which stated: Court Administration Councils will work in partnership with local chief officers. They will make a non executive contribution to the development of local strategy for delivering high performance and securing value for money within the national policy and performance framework". Writing on 9th January to the Constitution Committee, as it appears in its third report, the Lord Chancellor said: Court administration councils will ensure that local people have a real say in the running of courts in their area. They will make a non-executive contribution to the development of local strategy for delivering high performance and will work in partnership with local chief officers to do this. The Lord Chancellor continued: The new agency will not be centralised. It will be responsive to local needs through a network of empowered local managers and accountable through the community-focused Court Administration Councils. These bodies will bring together representatives of the local community and the judiciary, lay and professional, with real influence on the administration of the courts. Where decisions are best made locally they will be". That is jargon. I know that the Minister objected to the word "guff' when I used it in a previous Committee meeting, so perhaps I may put it in my own language—that is, geiriogrwydd—which, for the benefit of Hansard, when translated means "guff".

We need to pin down precisely what the role of these councils is to he. The noble Baroness, Lady Scotland, wrote to us all and tried to set out what was to be the role. She stated: the Court Administration Councils will approve the area's strategic plan—this will include the area's estate strategy (including any proposals to open or close courthouses); its staffing structures and recruitment and retention strategy; and spending priorities for the year, including any major local projects". Let us pause there for a moment. The councils are to approve these matters. What if they do not approve them? Suppose a council is in conflict with someone who is administering the courts as part of the agency; suppose there is a difference between them, and the councils do not approve. What happens then? We do not learn that from this document.

The letter continues: Throughout the year, Councils will receive regular performance reports and will propose remedial action, where necessary". Suppose that the proposals are not accepted or carried out. What happens then? At the end of the year, Councils will contribute to their area's annual report". What does that mean? What are they to contribute? A rundown of what has happened during the year? Local managers will be accountable to them as well as to the national agency if they tail to deliver the plans that they have agreed with them". How are local managers to be accountable? Will the councils have the power of hiring and firing them or anyone employed in the agency? I very much doubt it. I very much doubt that the councils will have any redress except a right of access, as the letter states, to the national chief executive about any issue, including managerial performance.

So the people appointed to the councils by the Lord Chancellor—they will not be elected; there is no democratic element in the process—will be there, flapping on the sidelines, without arty power to take decisions. How can we go from what Yvette Cooper said in another place about the need to retain local decision-making to the position now encapsulated in the Bill? And why is it expressed in such involved language, which in effect conceals the lack of power that the councils will have? It may be accidental. I cannot imagine the noble and learned Lord the Lord Chancellor or the noble Baroness, Lady Scotland, ever writing in this kind of style.

There is a further passage that I think is rather nice. The agencies are to take a "holistic" approach—as though we are talking about aromatherapy! That is not the language of government Ministers, yet that is what is appearing. In the course of our debates in Committee, we must get through all that and pin the Government down—not with the kind of bile that the noble Lord, Lord Bassam, was referring to, but pin them down nevertheless—as to what they mean.

If the genuine intent is to allow magistrates to retain a power of decision-making—as was originally promised to them—we shall avoid at future stages of the Bill divisions which may well lead to all kinds of conflicts between ourselves and another place. That is one way to proceed. But it would be much better for the Government to explain in clear, simple language, as Yvette Cooper did on 9th July last year, what the councils are about.

Lord Waddington

Surely, by now, the Minister must be aware that there is a feeling of betrayal over the proposal that advisory bodies should take the place of magistrates' courts committees. The wording it the White Paper is absolutely plain. I am afraid that I must repeat it yet again: We expect managers of Courts to be accountable to new local management boards, We expect decision-making to be decentralised to the local management boards". Nothing will persuade this Committee that an advisory council is anything like a board which has managerial responsibilities. There is a clear case for any new bodies having responsibility for all the courts. We know that. But these bodies should be there to manage, not merely to advise. They should be there to ensure an efficient and effective system to support the carrying on of the business of the courts.

I simply do not understand how the noble Baroness can stand at the Dispatch Box and say with a straight face that the undertaking given in the White Paper is being honoured. No one in his right mind can argue that an advisory council is the same as a management board. What we are hearing today is an attempt to justify a complete reversal of policy by the Government and an attempt to justify a Bill which by no means honours the undertakings given in the White Paper and the undertakings given to the magistracy. No wonder people are cross.

Lord Borrie

I was most interested to hear the comments of the noble Lord, Lord Phillips of Sudbury—in particular because he answered the question that I put to the noble Baroness, Lady Anelay: she, as it were, passed it over to him. I believe his answer was that the local area court management boards proposed in his amendment would be concerned not merely with the administration of justice in magistrates' courts but also with the administration of justice in the Crown Court and the county courts—which is quite different from the present situation, where they are under a court service. I was interested for several reasons. Like my noble friend Lord Jones, the noble Lord, Lord Phillips, argued that we should all cherish and value the work of magistrates as a special feature of this country's administration of justice compared with that of others. Surely we should all share that view.

The excellence of so much of the speech of the noble Lord, Lord Phillips, was spoiled by three matters. First was his obsession with the notion that the Lord Chancellor wishes to centralise in his own hands all power relating to the administration of justice. The second was the noble Lord's failure to address himself to the argument of Lord Justice Auld in his massive report of a couple of years ago for a unified system of court management. Thirdly, I was concerned that the noble Lord made no mention of the fact that magistrates, whose role in life we all cherish, will gain something in return for the loss he described. He never mentioned that they will gain a role in the administration of all courts through the Bill's proposal for court administration councils and their larger consultative role.

The Auld report's case for a unified court management system was made powerfully a couple of years ago. It proposed the replacement of the present system of two separate court structures whereby Crown Courts are run by the Court Service and magistrates' courts are run by local Magistrates' Courts Committees, which makes for much inefficiency. I am still unsure whether the two opposition parties are for or against unification of the court management system. It' they are in favour, it is odd to go about unification by proposing that in the administration of all courts in the country there should be a division of responsibility among—pick your number—42, 30 or however many areas.

The noble Lord, Lord Thomas of Gresford, quoted from the Auld report. At least he paid attention to it. The report, at page 292, states that there should be, an executive agency providing a national service but with maximum delegation of managerial responsibility and control of resources to an accountable 'local manager' working in close liaison with the professional and lay judiciary". Clause 4 seems to provide for that. But the opposition parties seem to want 42 different bodies, or whatever number they propose, not a unified national service. The logic of the Auld report was to point to a national executive agency, which I shall not describe because my noble friend Lady Scotland did so adequately on 20th January as reported at column 543 of Hansard. She referred to an executive agency working in partnership with the court administration councils for each area, with each such council comprising members of the lay and professional judiciary and representatives of the local community.

The Auld report also pointed to a local manager being employed by the court agency, not, as the opposition parties propose in their amendments, by a local management board. The amendments seem to constitute a complete turnabout from a unified structure, as the noble Lord, Lord Phillips, admitted. Their effect would be nowhere near what the Auld report recommended as desirable and sensible for a rational court structure.

10 p.m.

Lord Fraser of Carmyllie

The noble Lord's quality of offensiveness is such that he almost persuaded me not to make this brief speech. At the risk of attracting death stares from my noble friends on the Front Bench and from the noble Lord, Lord Phillips, I have some sympathy with the Government's position. If the issue had been restricted to that of the magistracy, I would have had complete sympathy with the amendments.

There is a real argument to be engaged in about the desirability of a unified court system. I know that I am a tedious advocate of the virtues of the Scottish system, but we have something like that. Nevertheless, in England, the magistracy is one of the jewels in the crown. The Government damage, at their risk, that wonderful contribution of lay justice which is not to be found anywhere else in the world and ought to be held in the highest possible regard.

As I understand the role of the court administration councils, and as the Government wish to advance them, they should give the Lord Chancellor recommendations on how he should discharge his general duty in relation not only to magistrates' courts but to the Crown Court and county courts. I am sufficiently old-fashioned to believe that the Queen's writ should run uniformly over the whole country. The Lord Chancellor has a general duty, and he should discharge it. In that context, regretfully, I do not entirely buy into the arguments that have been advanced, given the context within which the council is to be established.

The noble Baroness, Lady Scotland, may find a measure of comfort in what I have said, but let me tell her that I find the relationship between subsections (1) and (3) of Clause 5 so offensive that even if no one else divides on the relevant amendment, I shall. I have no doubt that the Lord Chancellor should have a general duty. I shall at a later stage have longer observations to make about this quite unnecessary restriction that the court administration councils can only make recommendations relating specifically to the area for which they are established. I give the noble Baroness, Lady Scotland, fair warning. It seems a key point, and perhaps she would like to reflect on it before we next return to the Committee stage. In short compass, at present, I hope that I have given her at least a small measure of comfort.

Lord Hylton

It is regrettable that we should be discussing these important amendments after dinner, at 10 o'clock, in a thinly attended Committee.

I have a good deal of sympathy for this group of amendments, but feel that they could be considerably improved. Subsection (4)(a) of Amendment No. 23 refers to an officer of the board". I would like it to refer to officers of the courts, whose first loyalty is to the court and the interests of justice and not the interests of some centralised administration. The proposed subsections (7) and (8) in Amendment No. 28 seem to give back to the Lord Chancellor the widest possible powers to do whatever he likes. I do not think that can be quite right or achieves the purpose.

Can the present system of justice, as exercised in magistrates' courts on a voluntary basis by volunteers, be combined with the professional courts with professional judges and juries? The two seem very different animals and I wonder whether the benefits claimed in the Auld report are real.

Lord Dixon-Smith

I shall briefly support the amendments. Given the Government's reluctance to show any sign that they wish to move on the substance of these clauses, the amendments will inevitably have to come forward and are bound to be strongly supported. Had the Government shown some sign of movement, there might have been some justification for staving them off. Like my noble and learned friend Lord Fraser, I have considerable support for the idea of a unified courts administration system. However, the fact is that we have a lacuna in the information provided to us and we can get no answers. The inevitable result of a vacuum is that something will try to fill it. The amendments have a great deal of merit and are worthy of support in the absence of any movement or indication by the Government of precisely how the new system will work.

Baroness Scotland of Asthal

I note that it is now five past 10. Although I would like to be telegraphic in my response, as the noble Lord, Lord Kingsland, would have put it, these amendments deserve a full response, because so many points have been made. I commend to the Committee the comments made by my noble friend Lord Borrie. For a moment I wondered whether there was unity of purpose to unify the courts. I adopt every statement made by my noble friend. I am most grateful for the support of the noble and learned Lord, Lord Fraser, although I understand that it is given with a caveat.

There has been no U-turn. We have local decision-making. These decisions will be taken locally by chief officers in partnership with the court administration council. I am most grateful to my noble friend for reminding the Committee of what Lord Justice Auld said in the report that has caused us to seek to reform the courts administration structure in the way we suggest.

Lord Thomas of Gresford

Does the noble Baroness accept that Lord Justice Auld said nothing about councils? He said that he leaves that to others, as the quotation that I gave shows.

Baroness Scotland of Asthal

That is right. I shall not reiterate everything that my noble friend Lord Borrie said. He rightly referred to the comments of Lord Justice Auld that telegraph the way in which he suggests this may be managed and informed on a local basis, outlined in detail. That is echoed in the structure we have adopted.

I appreciate that, at first blush, the suggestion in the amendments seems attractive—until one examines how it will work. We are told that there is agreement that a unified system has merit. We see much of that merit in the Court Service at the moment—the ability to move the occupation of courts from one area to another, the way in which area-to-area co-operation can help relieve the burden on certain courts and the way in which judges co-operate with each other, crossing boundaries to relieve brother and sister judges in other areas. Hertfordshire may assist Bedfordshire, who may assist Cambridgeshire. That happens with success and to the benefit of the individual citizen who awaits the determination of their case.

It is important that we do not concentrate on magistrates' courts alone, valuable though they are. We must consider the system overall.

I reiterate that we, too, believe that the function performed by magistrates is extremely valuable and precious. It was this Government who firmly said that the suggestion that we should do away with the lay magistracy and replace it with perhaps 1,000 district judges was not acceptable. In legislation we shall bring forward in due course, we propose to expand the jurisdiction of magistrates to enable them to have greater sentencing powers. So it cannot be said that this Government do not properly value the magistrates and the function they perform. I regret to say, however, that we believe that the model put forward in these amendments is internally inconsistent. I shall, if I may, touch on some of those inconsistencies.

Our proposals are the fruit of a long period of discussion and consultation, beginning with Sir Robin Auld's review—which recommended a single, nationally funded administrative structure, but also one that provided significant local autonomy and accountability. In our statement of intent in Justice for All and in further work with the magistrates' court community, we did consider alternatives to the mode] set out in the Bill. We know that our objectives—local delegation and accountability within a national framework—are not easy bedfellows.

We considered separate executive management boards with a national co-ordinating structure but concluded that it would not cure the defects that Sir Robin and our stakeholders diagnosed. It would undermine all that we seek to achieve by unifying, for reasons that I shall explain in commenting in detail on this amendment. We looked for a compromise—I suspect that noble Lords have made the same search—but concluded that a hybrid structure would serve only to muddy the waters and make it less clear than it is now who is responsible to Parliament for the effective and efficient administration of the courts.

There are a number of disadvantages to Amendment No. 23. I shall, if I may, explain why we reject it. First, it would not create a unified administration. It would create 42 separate court administrations. Instead of breaking down organisational barriers, the amendment would erect them, undermining what we want to achieve in establishing clear accountability for national performance. The amendment would leave the Lord Chancellor with accountability for national performance but would give local boards the tools to deliver. The Lord Chancellor could intervene only by means of persuasion or by a cumbersome process of statutory direction. That is not a satisfactory situation.

I should like to say something about court closures. The noble Lord, Lord Phillips, said that court closures are an example of the difficulties. He said, "Look what happens when magistrates appeal to the Lord Chancellor". Let us look at it. It is the MCCs that decide to close courts. The Lord Chancellor is involved only in the event of an appeal by the paying authority. There is no specific criteria, as every appeal is decided individually. Common themes are accessibility and the cost of travel. In 2001, 12 appeals were decided and all 12 were dismissed. Of course, that means that the Lord Chancellor upheld the decisions made by the magistrates' courts committees.

Lord Phillips of Sudbury

As the noble Baroness referred directly to one of my points, perhaps she will allow me to say—as indeed Lord Justice Auld says—that the decision on closures is driven by the budgetary arrangements that come from central government. It is a myth to say that the closures are ordered by the MCCs. Closures are entirely a consequence of funding cuts and the formula adopted, which, for example, maintains that if one has a new central court system one is not charged any of the interest of the capital cost of building, thus putting the existing estate at a disadvantage. I therefore hope that she will reconsider the point.

10.15 p.m.

Baroness Scotland of Asthal

We must beg to differ. We have crossed swords on the matter before and I refer the noble Lord to the answers that I gave previously. One benefit of the new administrative structure is that we could make better use of the court estate right across the piece. We would hope that in so doing, some of the court closures currently being mooted may be avoided, because those courts could be used by the county court, Crown Court or otherwise. That is one of the huge benefits in the change of model. That would also give a greater and stronger voice to magistrates' courts at the national level.

Under the amendments, for example, instead of giving magistrates' courts a clear voice on the national criminal justice board through a unified agency, all the courts would be divided into 42 local bodies. I understand that that is what noble Lords on the Opposition Benches advocate. Making better use of resources—in particular, the court estate, which I mentioned—is a real benefit.

The amendment would damage our ability to do so, reinforce organisational barriers and prevent us reaping the full benefit that we seek. That is especially important in the Crown Court, where it is often necessary to transfer work, and therefore resources, at short notice because of convenience to witnesses, security, or getting a jury without prejudice in high-profile murder and sex cases, for example. That is needed to deliver high levels of performance, which means a better level of service across the board, providing a platform for other reforms in the criminal justice system and in family and civil justice, for which a unified administration is crucial.

For example, 43—or another number that may be chosen—separate organisations acting independently could hinder the early development of business centre capability for civil business. The current 218 county courts operate 218 back offices in isolation. The Courts and Tribunals Modernisation Programme (CTMP) is intended to remedy that by directing much of the most basic administrative work straight to business centres. The new agency will aid that process, contributing to increased efficiency in county courts.

The amendments also undermine the benefits that I mentioned for staff and court users. There are problems at present with MCCs. Although of course we applaud the good work that they do, it would be futile not to acknowledge that there are difficulties. The Lord Chancellor's present relationship with them makes it difficult for him. For example, difficulties that arise in individual magistrates' court disputes between local magistrates, justices' clerks or JCEs can be resolved only by the MCC. Under unified administration, the Lord Chancellor will be able to set standard procedures for dealing with magistrates' complaints about the administration that are agreed with the Magistrates' Association, and to ensure that they are resolved.

Many of the amendment's provisions are similar to those elsewhere in statute where particular public functions have been given to multiple local bodies—for example, local probation boards—but they simply would not fit with what we need to cure the problems that have been identified in the area.

Several noble Lords mentioned the magistrates' courts committees as being representative. I hear what they say about that, but at present they are not as representative as they could be. Magistrates' courts committees are 75 per cent male and 25 per cent female. They are 96 per cent white; 0.5 per cent black; 1.5 per cent Asian and 1.5 per cent described as "other". Many magistrates' courts committees are 100 per cent white and 90 per cent male.

Lord Phillips of Sudbury

I am grateful to the Minister for giving way again. How will the Bill affect the issue that she is now discussing?

Baroness Scotland of Asthal

In terms of our ability to set standards, make recommendations and how composition can be decided.

I simply address the issue raised by Members of the Committee when they say that the magistrates' courts committees are at the moment representative. We say, "Yes, hut not as representative as perhaps they could he". This is an issue which the magistrates' courts committees themselves seek actively to address across the country, and quite rightly so.

I refer to the other problems that arise. It is very easy to think that everything at the moment is perfect; regrettably, it is not. Sir Robin Auld highlighted the fact that magistrates' courts committees had no budgetary control over their affairs; they simply bid each year to the maximum permitted by the Treasury. The arrangements for their accounting between themselves and the local authority, or authorities in whose areas they fall, are unsatisfactory. In addition, they are not subject to the satisfactory regime of audit. There is little detailed examination of the MCCs' financial affairs by the external auditor appointed by the Audit Commission to scrutinise local government expenditure or by the LCD's internal auditors.

The inspectorate highlighted that practices vary considerably from one MCC to another, for example, in the format of case file sheets, legal aid applications and information technology systems. The MCSI report of 2001–02 found that 11 out 12 MCCs inspected were still not good at ensuring that systems to manage performance were in place. That had been highlighted in two previous MCSI reports and in 2001–02 the inspection report showed that only half of the MCCs inspected had appropriate monitoring procedures in place for fines and fees collected. Again, that was reflected in the two previous MCSI reports.

Inspectors have some concerns about the leadership and direction provided by MCCs with only three out of 12 inspected being judged as providing clear leadership. Even where structures to manage performance in case administration had been put in place, inspectors found few examples where data were used to identify the factors contributing to poor performance. The MCSI also noted that in a quarter of MCCs inspected there was no clear link between the objective set in the strategic plan and the financial planning processes being undertaken.

Therefore, we cannot pretend that all is rosy in the garden. There is much work to do. The MCC structure restricts the implementation of national initiatives. Many MCCs do not have scheduling protocols that conform to the national listing protocols published by the trials issues group in 1999. Inspectors encountered several senior MCC officials who had never heard of that document, despite reference to it in many individual reports and the last MCSI annual report. MCSI found nine out of the 12 MCCs inspected needed to improve scheduling in order to deploy resources effectively and needed to follow national guidance.

It is well recognised that magistrates' courts handle 95 per cent of criminal business, yet there are inconsistencies in performance that cannot be explained by the complexity of the cases. A third of MCCs inspected had poor or declining case throughput performance and the associated long waiting times for witnesses and defendants.

There is wonderful practice in some MCCs and less wonderful practice in others. What we want is a system which is nationally of good quality so that the quality of the justice and the efficiency of the procedure to which people are subject are not dependent on the area in which they live but are influenced by the local flavour and commitment of the people who operate the system.

We hope that the structure that we propose addresses many of those issues. That litany of what can be improved in the MCCs does not mean that we do not value the extraordinarily good work that is done by the majority. However, if this was a report, we would have to say, "Could do better". The Bill is a means to deliver that improvement.

Lord Thomas of Gresford

It does not sound as though the Lord Chancellor's Department has done terribly well, having listened to the litany to which the noble Baroness referred a moment ago. It is a question of devolution in the end. Do we believe in local initiatives, priorities and decision making or, to use some of her words, do we want nationally the same thing, no inconsistencies, and national standards? Do we want to centralise, so that everything is the same throughout the country? It is a matter of approach.

I have always been a devolutionist. I always believe that there is more confidence if decisions are taken locally by local people. In the same way in which I always mistrusted socialism, I have also mistrusted the centralisation of power and the decisions in Whitehall or wherever, among the heads of nationalised industries, that they know best for everyone throughout the country. I have always been against that, and in the clause the Government are going along those lines. Auld is clearly a centraliser. His report says nothing about local councils of any sort. I do not think that they are even implicit in what he says. He talks about local managers, who will take decisions locally. He is not involving local magistrates or anyone of that sort.

The noble Baroness should not think that we are simply talking about magistrates. Of course we appreciate that the council or board proposed in the amendment will deal with Crown courts and county courts, as well as magistrates' courts. However, I see nothing wrong in magistrates being concerned in the administration of the Crown courts and county courts, as opposed to the Lord Chancellor's appointees, who may come from a locality but know nothing about any court at all, and are merely there because their names have gone forward. Magistrates are at least involved in the criminal justice system, and are more qualified than anyone else among the lay public to sit on such boards.

Lord Phillips of Sudbury

It is late, so do not worry: I am not going to say much. I shall merely thank the Minister for a long reply. I cannot resist her closing, headmistress-like jibe, "Could do better". Who could not do better? Which government department could not? Which centralised quango could not?

The question is one of finding the right balance. In terms of a unified service, one can have more or less federalism among the 42 local boards. The litany of failure that the Government talk about could be dealt with via a much more effective national agency, which could work with the semi-autonomous boards that the amendment proposes.

Baroness Anelay of St Johns

I was going to begin my winding-up with exactly the same words as the noble Lord, Lord Phillips of Sudbury. It is indeed late. The Minister was right to take the amendment as seriously as she did and to give it careful consideration in her response, late though the hour is. However, I would be wrong if I then summarised the powerful points put by all Members of the Committee, whether they disagreed with me as did the noble Lord, Lord Borrie, or had some reservations as did my noble and learned friend Lord Fraser. All Members of the Committee made strong representations. Debate on the subject goes to the heart of our main problems with this part of the Bill.

Our difficulty is that we have a unity of purpose between us, but our unity of purpose is that we believe that the Government got things right the first time round, when they talked about local decision making. It is their second approach that we find unacceptable. The Minister said tonight and in her letter that what they said in the White Paper is what we have now, but patently that is not what we or all those outside the Chamber believe is in the Bill. We are trying to get greater clarity with regard to that. My noble friend Lord Waddington made a powerful point about the wording of the White Paper and clearly showed that there would be executive action at the local base. That would be, as he said, within a unified structure; the arrangement can work and will not simply involve a talking shop.

The Minister said that our amendments were internally inconsistent. She did not actually prove that in her responses, but I shall read carefully what she said. We are not arguing that the amendments are the perfect solution. We are prepared to listen and learn and to work between now and Report for that solution. Our problem, as my noble friend Lord Dixon-Smith said, is that so far the Government have made no movement. The Minister repeatedly said that magistrates' courts committees have not worked and involved many problems. They have said that they want to find a way forward to something better.

The more that the noble Baroness spoke tonight, the more I saw coming towards me the leviathan of the Lord Chancellor's Department and the unified structure. I am sure that that is not the impression that she was trying to give. However, I saw that coming down the tracks towards me at a slow but relentless rate, gathering within it all the other organisations: tribunals here and tribunals there.

On Report, we may have further opportunity to reflect on what unification as opposed to centralisation of power means. We may come back with a proposal that finds favour with, I hope, a majority in the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Lord Bassam of Brighton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-eight minutes before eleven o'clock.