HL Deb 08 May 2003 vol 647 cc1212-26

Constitution

1 The members of each courts board are to be appointed by the Lord Chancellor.

2 Each board must have—

  1. (a) at least one member who is a judge,
  2. (b) at least one member who is a lay justice who is assigned to a local justice area the whole or a part of which is included in the board's area,
  3. (c) at least two other members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the courts in the area for which the board acts, and
  4. (d) at least two more members who are persons appearing to the Lord Chancellor to be representative of people living in that area, and may have such other members of a description mentioned in sub-paragraphs (a) to (d) as the Lord Chancellor considers appropriate.

3 Regulations may make provision in relation to the appointment of members of courts boards, including in particular provision about the procedures to be followed in connection with appointments.

Chairman

4 Regulations may make provision as to the selection of one of the members of each courts board to be its chairman.

Tenure of office

5 (1) Regulations may make provision as to—

  1. (a) the term of office of chairmen and members of courts boards;
  2. (b) their resignation, suspension or removal.

(2) Subject to the regulations, a person is to hold and vacate office as a member of a courts board in accordance with the terms of the instrument appointing him.

Payments in respect of expenses, etc.

6 The Lord Chancellor may make such payments to or in respect of members of courts boards by way of reimbursement of expenses, allowances and remuneration as he may determine.

Procedure

7 Regulations may make provision about—

  1. (a) the procedure of courts boards (including quorum);
  2. (b) the validation of proceedings in the event of a vacancy among the members of a courts board or a defect in the appointment of a member.

Interpretation

8 In this Schedule "regulations" means regulations made by the Lord Chancellor."

Lord Phillips of Sudbury moved, as an amendment to Amendment No. 24, Amendment No. 25: Line 8, leave out "one member who is a lay justice who is" and insert "two members who are lay justices who are

The noble Lord said: My Lords, we discussed this matter at some length in Committee and earlier this morning. I am not persuaded by the reasons given by the noble Baroness, Lady Scotland of Asthal, for not agreeing that two members of the board should be magistrates. They will be overwhelmingly the main carriers of business as between Crown Courts, county courts and magistrates' courts. The magistrates' courts will, I imagine, carry 80 to 90 per cent of the business. Accordingly, I will test the opinion of the House.

12.40 p.m.

On Question, Whether Amendment No. 25, as an amendment to Amendment No. 24, shall be agreed to?

Their Lordships divided: Contents, 95; Not-Contents, 85.

Division No. 2
CONTENTS
Addington, L. Carlisle of Bucklow, L.
Alderdice, L. Carnegy of Lour, B.
Allenby of Megiddo, V. Chan, L.
Ampthill, L. Chelmsford, Bp.
Anelay of St Johns, B. Coe, L.
Astor of Hever, L. Colville of Culross, V.
Beaumont of Whitley, L. Cope of Berkeley, L.
Brittan of Spennithorne, L. Crathorne, L.
Brougham and Vaux, L. Dean of Harptree, L.
Buscombe, B. Dixon-Smith, L.
Byford, B. Elles, B.
Caithness, E. Elliott of Morpeth, L.
Finlay of Llandaff, B. Oppenheim-Barnes, B.
Fookes, B. Patten, L.
Fowler, L. Phillips of Sudbury, L. [Teller]
Freeman, L. Pilkington of Oxenford, L.
Gardner of Parkes, B. Plumb, L.
Geddes, L. Plummer of St. Marylebone, L.
Glentoran, L. Prior, L.
Goodhart, L. Quinton, L.
Greenway, L. Reay, L.
Hanham, B. Redesdale, L.
Hanningfield, L. Rennard, L.
Harris of Richmond, B. Roberts of Conwy, L.
Henley, L. Roper, L.
Higgins, L. Ryder of Wensum, L.
Hodgson of Astley Abbotts, L. Sandwich, E.
Home, E. Seccombe, B. [Teller]
Hooson, L. Sharp of Guildford, B.
Howe, E. Shaw of Northstead, L.
Hunt of Wirral, L. Shutt of Greetland, L.
Hylton, L. Skelmersdale, L.
Jellicoe, E. Smith of Clifton, L.
Jenkin of Roding, L. Soulsby of Swaffham Prior, L.
Kimball, L. Stern, B.
Liverpool, E. Strathclyde, L.
McNally, L. Thomas of Gwydir, L.
Maddock, B. Thomas of Walliswood, B.
Mayhew of Twysden, L. Tope, L.
Methuen, L. Tordoff, L.
Monro of Langholm, L. Ullswater, V.
Mowbray and Stourton, L. Vivian, L.
Noakes, B. Waddington, L.
Northover, B. Walmsley, B.
Norton of Louth, L. Walpole, L.
Oakeshott of Seagrove Bay, L. Wilcox, B.
O'Cathain, B. Windlesham, L.
Wright of Richmond, L.
NOT-CONTENTS
Acton, L. Graham of Edmonton, L.
Ahmed, L. Grenfell, L.
Andrews, B. Grocott, L. [Teller]
Archer of Sandwell, L. Haskel, L.
Bach, L. Hollis of Heigham, B.
Bassam of Brighton, L. Howells of St. Davids, B.
Bernstein of Craigweil, L. Howie of Troon, L.
Billingham, B. Hoyle, L.
Blackstone, B. Hughes of Woodside, L.
Borrie, L. Irvine of Lairg, L. (Lord Chancellor)
Brett, L.
Brooke of Alverthorpe, L. Jones, L.
Brookman, L. King of West Bromwich, L.
Bruce of Donington, L. Layard, L.
Campbell-Savours, L. Lipsey, L.
Carter, L. Lockwood, B.
Clinton-Davis, L. Lofthouse of Pontefract, L.
Craig of Radley, L. Macdonald of Tradeston, L.
Crawley, B. McIntosh of Haringey, L. [Teller]
David, B.
Davies of Coity, L. MacKenzie of Culkein, L.
Davies of Oldham, L. Mackenzie of Framwellgate, L.
Desai, L. Mallalieu, B.
Dixon, L. Massey of Darwen, B.
Dormand of Easington, L. Mitchell, L.
Dubs, L. Morris of Manchester, L.
Elder, L. Nicol, B.
Evans of Parkside, L. Patel of Blackburn, L.
Evans of Temple Guiting, L. Pendry, L.
Farrington of Ribbleton, B. Peston, L.
Faulkner of Worcester, L. Plant of Highfield, L.
Fyfe of Fairfield, L. Ramsay of Cartvale, B.
Gale, B. Sainsbury of Turville, L.
Gavron, L. Scotland of Asthal, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Sewel, L. Thornton, B.
Sheldon, L. Tomlinson, L.
Simon, V. Turner of Camden, B.
Slim, V. Uddin, B.
Stone of Blackheath, L. Wedderburn of Charlton, L.
Strabolgi, L. Whitaker, B.
Taylor of Blackburn, L. Whitty, L.
Temple-Morris, L. Williams of Mostyn, L. (Lord Privy Seal)

Resolved in the affirmative, and Amendment No. 25, as an amendment to Amendment No. 24, agreed to accordingly.

On Question, Amendment No. 24, as amended, agreed to.

Schedule 1 [Abolition of magistrates' courts committees: transfers]:

Lord Bassam of Brighton moved Amendment No. 26: Page 54. line 11, after "with," insert "or are otherwise attributable to

The noble Lord said: My Lords, Amendments Nos. 26. 27, 28, 29, 30 and 31 are put forward to add greater clarity and certainty to paragraph 1 of Schedule 1, relating to the transfer of property. We have reviewed the provisions in Schedule 1 and put forward Amendments Nos. 26 and 27 to ensure that all the various categories of property, which should by virtue of paragraph 1(1) be transferred to the Lord Chancellor or another Minister of the Crown, may be included in a property transfer scheme.

Paragraph 8A of Amendment No. 29 is, in substance, the same as existing paragraph 13 but, again, it is a clarifying provision. Similarly, Amendment No. 30 is tabled to improve the drafting and clarity of that provision. Amendment No. 31 is consequential to the other amendments made to this schedule. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 27 to 31: Page 54, line 23, at end insert— ( ) Without prejudice to the generality of paragraph (b) of sub-paragraph (1), any property, rights or liabilities are to be treated as falling within that paragraph if the Lord Chancellor issues a certificate to that effect. Page 54, line 26, at beginning insert "In this Part of this Schedule Page 56, line 13, leave out from beginning to end of line 44 on page 57 and insert—

"Supplementary provisions in property transfer scheme

8A A property transfer scheme may make such supplemental, consequential or transitional provision for the purposes of, or in connection with, a transfer made by the scheme as the Lord Chancellor considers appropriate.

PART 2 STAFF TRANSFERS

Interpretation

8B In this Part of this Schedule—

  1. (a) "TUPE" means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (S.I. 1981/1794),
  2. (b) "the appointed day" means the day immediately before the abolition day,
    3. 1216
  3. (c) references to a responsible authority are to an authority which is a responsible authority under the Justices of the Peace Act 1997 (c. 25),
  4. (d) references to a responsible authority's relevant functions are to its functions under that Act, and
  5. (e) references to a transferred employee are to an employee transferred to the Lord Chancellor's employment by virtue of paragraph 8C or 8D.

Application of TUPE

8C For the purposes of TUPE—

  1. (a) the functions of each magistrates' courts committee are to be treated as transferred on the appointed day from the committee to the Lord Chancellor, and
  2. (b) each such transfer is to be treated as the transfer of an undertaking.

8D (1) For the purposes of TUPE—

  1. (a) the relevant functions of each responsible authority are to be treated as transferred on the appointed day from the authority to the Lord Chancellor,
  2. (b) each such transfer is to be treated as the transfer of an undertaking, and
  3. (c) each person falling within sub-paragraph (2) (but no other person) is to be treated as employed in the undertaking immediately before the appointed day.

(2) A person falls within this sub-paragraph if—

  1. (a) immediately before the appointed day he is employed by the responsible authority under a contract of employment,
  2. (b) he spends a substantial part of his time on duties connected with the relevant functions of the authority, and
  3. (c) the Lord Chancellor certifies that in his opinion it is expedient that the person be transferred to the Lord Chancellor's employment.

(3) Where TUPE applies by virtue of this paragraph, it applies as if regulation 5(4B) were omitted.

8E A reference in any enactment to a person appointed under section 2(1) includes a transferred employee.

Restrictions on employment of aliens not to apply to transferred employees

8F Nothing in—

  1. (a) section 3 of the Act of Settlement 1700 (c. 2),
  2. (b) section 6 of the Aliens Restriction (Amendment) Act 1919 (c. 92), or
  3. (c) any rules prescribing requirements as to nationality which must be satisfied in the case of persons employed in a civil capacity under the Crown, applies to the employment of a transferred employee by the Lord Chancellor following his transfer by virtue of paragraph 8C or 8D.

Compensation for responsible authorities

8G The Lord Chancellor may, to the extent he thinks fit, compensate a responsible authority in respect of costs incurred by the authority as a result of this Act in respect of a person who—

  1. (a) immediately before the appointed day is employed by the authority under a contract of employment, and
  2. (b) spends part of his time on duties connected with the relevant functions of the authority, but who is not transferred to the Lord Chancellor's employment by virtue of paragraph 8D.

PART 3 MISCELLANEOUS AND SUPPLEMENTARY".

Page 58, line 19, leave out "person falling within paragraph 1(1)(a) or (2)" and insert "magistrates' courts committee, and each person falling within paragraph 1(2)"

Page 58, line 21, leave out from "with" to end of line 27 and insert"—

  1. (a) the exercise of any powers exercisable by him in relation to a property transfer scheme, or
  2. (b) Part 2 of this Schedule."

On Question, amendments agreed to.

Clause 8 [Local justice areas]:

[Amendment No. 32 not moved.]

Clause 10 [Appointment of lay justices etc.]:

Baroness Seccombe moved Amendment No. 33: Page 5, line 7, at end insert—

The noble Baroness said: My Lords, many of your Lordships will remember Amendment No. 33 from Committee stage when it provoked much debate. It goes to the heart of our argument in what we are seeking; that is, to ensure that the Lord Chancellor will appoint sufficient lay justices to ensure that local justice is preserved.

I am grateful to the Minister for her helpful reply to this amendment in Committee, but I believe it necessary to consider it once more in order to clear up one or two points which are, as yet, outstanding. In particular, we are keen to establish exactly when the strategy for recruitment will be published. We have been assured that the strategy will be published early this year—certainly within the six-month period that we proposed. If this is so, would it be possible to have this assurance on the face of the Bill?

My thoughts on the lay magistracy are well known and I am keen to ensure that there is a clear commitment to the continuation of their appointment and work within the court system. I beg to move.

Lord Phillips of Sudbury

My Lords, I rise briefly to support these sensible and constructive amendments.

Baroness Scotland of Asthal

My Lords, the first of these amendments to Clause 10 would require the Lord Chancellor to have a duty to appoint as many lay justices as necessary for the magistrates' courts effectively to carry out the work. As I said in Committee to the noble Baroness, Lady Seccombe, we believe that such a provision in statute is unnecessary and indeed inappropriate. The effective running of the courts requires an appropriate number of magistrates. It is therefore implicit that the Lord Chancellor is under a duty to try to appoint sufficient justices for this purpose.

Furthermore, the duty to appoint magistrates implies taking the best measures one reasonably can in the prevailing circumstances to appoint the right numbers and the right calibre of justices. There is a balance to be struck between these two necessary aims. Putting in statute a provision that suggests that the Lord Chancellor appoint as many justices as necessary to run the courts would inappropriately emphasise numbers over calibre. If a court were to hold that the Lord Chancellor had not complied with his duty to appoint enough magistrates and ordered him to do so, would it be satisfactory if this could be done only by appointing unsuitable people? I know that that is not what the noble Baroness would want.

The second part of the amendment sets out that the Lord Chancellor should produce a national recruitment strategy for lay justices within six months of the Courts Bill having received Royal Assent. In Committee, I said that we are committed to a national recruitment strategy for lay justices. However, this level of detail on a one-off piece of administrative work, and its timing, is not appropriate for primary legislation. If all departments were to sign up to their administrative programmes in this fashion, the legislative machinery probably would be overwhelmed.

I said in Committee that we were hopeful of publishing the strategy this year—that is, within six months of the Royal Assent time period. Of course I note the concern of the noble Baroness on this issue. I think that I am confident enough to restate the hope as an undertaking. I hope that that is helpful. On that basis, I trust that the noble Baroness will feel able to withdraw the amendment.

Baroness Seccombe

My Lords, I thank the noble Lord, Lord Phillips of Sudbury, for his support. The point of bringing this amendment before the House was to ensure that we retain the present balance of district judges and lay magistracy and that we do not drift into different proportions. I accept the assurance and the undertaking that the Minister has given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 34: Page 5, line 14, at end insert— (4) Rules may make provision about the training courses to be completed before a person may exercise functions as a lay justice in any proceedings or class of proceedings specified in the rules. (5) Subsection (3) is subject to section (The supplemental list) (entry of names in the supplemental list).

The noble Baroness said: My Lords, we debated the need for these amendments in Committee. I sketched our provisional thoughts on what our amendments on this theme might look like and, indeed, we have followed fairly closely what we contemplated. It may be helpful if I recap the thinking behind these amendments.

I shall deal first with the proposed new clause after Clause 15. This clause gives statutory underpinning to the important roles played by the bench training and development committees (BTDCs) in the training, appraisal and development of magistrates. These roles include—as I said in Committee and as many noble Lords will be aware—managing the bench appraisal and mentor scheme; identifying training needs; referring those magistrates deemed not to have demonstrated the required level of competence to advisory committees; and responsibilities in relation to magistrates qualified to preside in court. Apart from the last role, these currently have no statutory backing. That is not an entirely satisfactory situation given the great importance of these issues.

The amendment to Clause 10 clarifies that the Lord Chancellor has a general power to prescribe training requirements in respect of all magistrates' jurisdictions. I say "clarifies" because it is arguable that, as head of the judiciary or as the responsible Minister, the noble and learned Lord has such residual powers now. Furthermore, as noble Lords may know, magistrates' undertakings, which they sign on appointment, include undertakings to undergo appropriate training. So magistrates understand that this is a condition of their holding office. But we believe, especially under a unified administration, where in the future training will be more consistent across the country and overseen by the Judicial Studies Board, that it is necessary to clarify this power. There are rule-making powers in the Bill that enable the Lord Chancellor to require magistrates to undergo training in respect of specialist functions, such as chairing in court, youth work and family work. It is consistent that this cannot be done for all jurisdictions.

It will not have escaped the notice of noble Lords that subsection (3) sets out a statutory obligation on the Lord Chancellor to provide training and training materials for magistrates where he requires them to undergo training. So magistrates will have a new statutory assurance in this regard.

I explained in Committee that we hoped in our amendment to cover more ground than the amendment tabled by the noble Baronesses, and I assume that I do not need to go into the detail of that amendment again. In its treatment of bench training and development committees, the amendment does not cover many of the roles of those committees. The role it suggests is one in fact carried out by the Judicial Studies Board. Additionally, we would not want to lose the scope to confer new functions on the BTDCs in the future. We believe that our amendment is broader than that suggested and that it makes a more comprehensive provision for the training and development of lay magistrates.

I hope, therefore, that the amendment of the noble Baronesses will be withdrawn in favour of the amendment I have proposed on the Lord Chancellor's behalf. I hope, too, that it meets all their requirements. I beg to move.

1 p.m.

Baroness Seccombe

My Lords, in supporting the government amendments, I wish to speak also to Amendment No. 46 tabled in my name. I raised this matter in Committee and the amendment has been tabled as a result of consultation with the Magistrates' Association.

It is essential that a clear commitment is set out on the face of the Bill to provide adequate training for lay magistrates, along with an ongoing commitment to ensure that the highest possible standards are upheld. In Committee the Minister accepted the thrust of our amendment, and I am pleased that the Government have tabled an amendment which fulfils the criteria we had proposed. As a consequence, I shall not move Amendment No. 46 when we come to it on the Marshalled List.

On Question, amendment agreed to.

Lord Waddington moved Amendment No. 35: Page 5, line 14, at end insert— ( ) This section shall have effect subject to section (Greater Manchester, Merseyside and Lancashire).

The noble Lord said: My Lords, as it stands, the Bill takes from the Chancellor of the Duchy of Lancaster his current responsibilities for the appointment of magistrates within the duchy and gives those responsibilities to the Lord Chancellor. Although they look complicated, the amendments have the effect simply of leaving things as they are at present.

I have registered my concern about this matter on a number of occasions, and I thank the noble Baroness for her patience both on the Floor of the House and in letters to me. She could not have been more courteous and punctilious.

I am not suggesting that this is one of the most important issues in the Bill; of course it is not. However, in expressing my concern, I know that I am reflecting the views of many people in Lancashire who attach a great deal of importance to the work of the duchy and the office of Chancellor. They feel as I do; namely, that the Government's determination to go ahead with the proposal to take away from the Chancellor an important power is an example of the Administration's obsession with modernisation for modernisation's sake and of its love of change for the sake of uniformity rather than when it is necessary to achieve economy or efficiency. It also shows a rather sad contempt for history and tradition.

No one would suggest that successive Chancellors of the Duchy have not carried out their duties efficiently and in conformity with the highest standards. I know that my noble friend Lord Hunt of Wirral, who has added his name to the amendment, was most assiduous and conscientious in the carrying out of his duchy duties. Furthermore, no one has alleged that any Chancellor of the Duchy, at least during my time in Parliament, has allowed different criteria to be applied in the making of appointments to the Bench in the duchy area from those applied in the making of appointments elsewhere in the country. Therefore, no one could suggest that what is being proposed by the Lord Chancellor will lead to consistency where consistency is now lacking. So, in view of the acceptance of the need for consistency, the fact that the Lord Chancellor is to launch a national recruitment strategy for lay magistrates—an argument raised by the noble Baroness—seems neither here nor there. In short, I know of no mischief which needs to be addressed or which would be removed by the change. Furthermore, I certainly know of no public call for such a change.

I am sure that the Minister knows that the proposal has caused great annoyance where I come from, not least because it follows a similar proposal put out to consultation in 2000 and withdrawn when the consultation exercise showed minimal support for change. The likes of myself, along with many others in public life in the North West, were consulted in that year but were not written to a second time before the publication of the Bill to be told that there would be no second consultation exercise. In a letter from the Minister dated 14th February, I am told that what happened was that, a transfer of responsibility was cleared with the Chancellor of the Duchy". Such a clearing between two departments does not begin to justify a change any more than would any other say-so of government.

However, the Minister did point out in her letter to me that, after publication of the Auld report, the Government sought comments on Sir Robin's recommendations, and that over 80 per cent of those who responded supported his view of the matter. But when one looks to see what was Sir Robin's view, one does not find any comfort for the Government whatever. He certainly does not support the line taken by the Lord Chancellor in the Bill. Some noble Lords may have failed to appreciate that. This is not a case of the consultation exercise undertaken in 2000 taking place but then, as it were, being rendered obsolete by the Auld report. Quite the contrary.

One has to start by looking at paragraph 62 in chapter 4 of the report where Sir Robin emphasises that the local advisory committees in the duchy area are constituted in precisely the same way as advisory committees in the rest of the country, and that their manner of working is the same. In paragraph 63 he goes on: This anomaly of a 'fourth' criminal justice Minister, with no formal role in the system, other than to appoint magistrates for this relatively small part of the country, is one of the interesting relics of the acquisition by Henry IV in 1399 of the estates and jurisdiction of the Duchy of Lancaster. Consideration has recently been given to removing it. That would no doubt be tidy. But local traditions matter and if, as appears to be the case, this one creates no harmful inconsistencies as between the Duchy and the country as a whole, I can see no reason for changing it so long as the magistrates' courts remain separate from the Crown Court". He concludes by saying, But, if, as I recommend in Chapter 7, they become part of a unified Criminal Court, there would be little justification of practical sense in preserving the anomaly". We know that Sir Robin's recommendation in Chapter 7 was not accepted by the Government; that the magistrates' courts will remain separate from the Crown Court and will not become part of a unified criminal court. So in no way can the Government suggest that the Auld report is a reason for rejecting these amendments. Quite the contrary. In no way will a unified courts administration make impossible, or even inconvenient, the power of appointment of magistrates in the Duchy remaining with the Chancellor of the Duchy.

We should keep old traditions when they cause no harm and in no way militate against the public interest. There is no point in scrapping arrangements which have stood the test of time—which are part of the rich tapestry of our history and which have formed a part of our system of justice since the 14th century—if they work perfectly well. That is why I have tabled these amendments today. I beg to move.

Lord Hunt of Wirral

My Lords, I strongly support my noble friend, who has spoken so eloquently and convincingly on this issue. He is right to put the Auld report in context. I respectfully point out to the Minister that she did not quote all the relevant sections of the Auld report in the letter that she wrote to my noble friend on 14th February and which she copied to me. Now that my noble friend has read in full the relevant sections he has put the matter more fully into context. He has done the House a service in reminding us of the words in the Auld report.

As I understand it, it is to be a decision for the Prime Minister. It would be helpful if the noble Baroness could indicate the extent of the discussions that have been held with the Prime Minister. On several occasions I have heard him refer to the "importance of history". I even recollect a phrase he used—which he asserted was not a cliché—when he said that he could feel the hand of history on his shoulder. The hand of history is now on the shoulder of the noble Baroness. As my noble friend pointed out, this subject has a long history. Chancellors of the Duchy have made these appointments since the 14th century.

There have been two major occasions since the 14th century on which close scrutiny and consultations were carried out. One was in 1948, when a Royal Commission was appointed formally to examine what was described at that time—no doubt by a Minister equally inspired by the Treasury to move for uniformity—as an "anomaly". That Royal Commission concluded that the existing system should continue as opinion in Lancashire favoured doing so and it seemed that little damage would be caused as a result.

There was then a consultation in 2000, only three years ago. As I have pointed out to the Minister on more than one occasion, the list of those consulted was enormous. It included all Members of Parliament; a range of political parties; a range of representatives of local government; a range of legal representatives; and all former Chancellors of the Duchy. We spent some time and effort in responding to the consultation initiated by Marjorie Mowlam, who concluded—as had the Royal Commission—that the weight of opinion was strongly in favour of continuing this practice by the Chancellor of the Duchy of Lancaster.

The noble Baroness said that the majority of respondents supported the retention of the Chancellor's role and added the words "at that time". With my noble friend I have sought to re-examine the issue with a number of people who were consulted at that time. All of those to whom I have spoken told me that they had not been consulted again and that they had not changed their mind. Although the Minister may say that the respondents "at that time" supported the Chancellor of the Duchy, I am not aware of anyone who has changed their mind since the last consultation.

My noble friend has done the House a great service in raising this issue again. I very strongly support him.

1.15 p.m.

Baroness Scotland of Asthal

My Lords, I thank both noble Lords for speaking to the amendment with such charm and eloquence. I should say to the noble Lord, Lord Hunt, that I do indeed feel the hand of history pressing heavy on my shoulder.

I very much regret that the noble Lord, Lord Waddington, believes that the Government have a sad contempt for history. I sincerely wish to disabuse him of that view because we have a high and proper regard for the value and importance of the lessons of history. That can be seen through a proper scrutiny of what the Government have done.

In what I say next I cast no aspersion whatever on the previous incumbents of the Chancellorship of the Duchy of Lancaster or on the present incumbent, who is greatly esteemed by us all. He follows a long tradition of high quality Ministers.

I say straightaway that I cannot accept the amendment and will resist it. The noble Lord, Lord Waddington, is right. There will not be a unified criminal court. But there will be a unified administration of the courts—a significant distinction which Sir Robin Auld commended. In order to deliver on a unified court administration it will be important, as we have established, that the procedures for appointing magistrates are common across the country.

The noble Lords have proposed amendments that seek to reinstate the responsibilities of the Duchy of Lancaster in regard to the appointment and removal of magistrates in the Duchy area. In Committee, we had a short exchange on an earlier amendment and, as the noble Lord said, we have had, through correspondence, many exchanges in relation to this amendment. As I said then, I hope that we have demonstrated our regard for the magistracy and that we have been sympathetic to its concerns.

I know that noble Lords are concerned that the transfer of the Duchy's responsibility is unwelcome to sonic magistrates in the region. At Second Reading, several noble Lords spoke out in similar terms in regard to the supplemental list. We made no bones about accepting the list's reinstatement. But the current split between the Duchy and the Lord Chancellor is more difficult to retain.

As outlined in Committee on 4th February, the Lord Chancellor is committed to a national recruitment strategy for lay magistrates, an issue we have discussed today. This is a vitally important step which is intended to raise the profile of the lay magistracy and to ensure that magistrates represent the communities they serve. It will apply across the jurisdiction. Providing the Lord Chancellor with responsibility for the appointment of all magistrates in England and Wales complements that strategy and should be seen as part of the Auld package of reforms.

The current split of responsibility is anomalous even under the current system. It does not apply to professional judges. It does not apply to other ancient Duchies. It is claimed that the Duchy magistrates are treated differently—or rather, I should ask whether that is the claim, because I do not believe that it ever has been the case that the Duchy magistrates are treated differently from the way in which magistrates are treated in other areas. Indeed, I do not believe it to be so, or that that makes the split indefensible. I do not know whether it is suggested that they are treated similarly. If so, the Bill should not prejudice them.

Transferring the Duchy's responsibilities does not realistically affect the local connection. Both the Lord Chancellor and the Chancellor of the Duchy of Lancaster appoint magistrates on behalf of her Majesty the Queen. Offices currently based in London are processing the recommendations of advisory committees. In both cases, advisory committees are the most meaningful links to local communities. There is no suggestion that the role and responsibilities of advisory committees would undergo change as a result of the delegated appointing authority moving from one ministry to another. The local connection would be fully preserved.

In any event, however arguable the split may be currently, under the other changes made by this Bill, it will not make sense at all. There will be a nation-wide unified administration. There is to be a single commission area; magistrates will have a national jurisdiction—as do professional judges. I ask rhetorically: how can it be right that two Ministers should appoint or remove magistrates, according, presumably, to the area to which they are first assigned on appointment but they retain national jurisdiction?

I turn to consultation—an issue upon which I wrote to the noble Lord, Lord Waddington, and one that has been raised again this morning. As I said in my letter, the noble Lord is right to say that there was a consultation exercise on the transfer of these responsibilities in 2000. Although a number of respondents saw the case for change, the majority of respondents at that time supported the retention of the role of the Chancellor of the Duchy of Lancaster. So the matter was not pursued at that stage.

The possibility of transferring responsibility was then raised again by Sir Robin Auld in his authoritative review of the criminal justice system. The noble Lord, Lord Waddington, read out the recommendation made by Sir Robin, two parts of which I should like to emphasise. First, he specifically said: In the event of the establishment of a unified criminal court the present division of responsibility … between the Lord Chancellor's Department and the Duchy of Lancaster should be reviewed". At that time he envisaged that, in the creation of a joint unified criminal court, there would be a joint administration to manage the court. He then went on to say that, there would be little justification or practical sense in preserving the anomaly", if that unification took place.

With the greatest respect to the noble Lord, I do not believe that one can separate the two and say, "You didn't have a unified criminal court, so that idea goes out of the window". The nature of the unification was to enable the courts' administration to act together, one would have a greater flow from one court to another, and there would be a degree of synergy. That is what we are trying to create with a unified administration.

The Government sought comments on Sir Robin's report. The responses that I have seen do not suggest to me a unified rejection of this proposal even from within the Duchy area. In fact, of the several specific responses on the point, Duchy and non-Duchy, the substantial majority support a review of the split. There are several further responses, which, without mentioning the Duchy. express general support for Recommendation 8. The latter include the Duchy's Advisory Committee for the Metropolitan Petty Sessions Area of Trafford.

I can provide details in that respect, if required. The Merseyside Magistrates' Association said that it wished to support the status quo, for reasons of local tradition. But one Duchy Bench—North Sefton—supported a review of the current split. The Greater Manchester Magistrates' Court Committee also responded and supported a review of the split. I have not found other local MCCs or advisory committees expressing a view in favour of the split. Therefore, on a less local note, the Association of Justices' Chief Executives thought that the Auld review provides an opportunity for consolidating these responsibilities under the Lord Chancellor.

Although the Government have stopped short of establishing a unified criminal court, they have decided to unify the management of the courts and provide much closer alignment between the magistrates' courts and the Crown Court, and to provide a national jurisdiction for magistrates. The transfer from the Duchy of Lancaster to the Lord Chancellor is fully consistent with those changes.

I know that this is an emotive rather than a strictly practical issue. However, I hope that I have explained why we do not believe that the amendment can reasonably be accepted. I believe that there is now an outline agreement with the Duchy Office that will, or may, provide a solution to one of the issues taxing Duchy magistrates. In the event of amalgamation, the Lord Chancellor's Department has agreed to supply the Duchy Office with a list of all new appointments of lay magistrates in the County Palatine so that the Duchy Office can issue a certificate or letter to those magistrates thanking them for volunteering their services to local justice in the Duchy. That will be in addition to the letter of appointment that will be signed by the Lord Chancellor.

In approaching the matter in a practical way, we hope that the link between the Duchy and the magistrates appointed in the Duchy area will be re-emphasised and highlighted; and, indeed, that it may go some way towards meeting the emotional concerns—I say "emotional", but there is an issue of sentiment and connection involved against which we do not wish to trespass. I hope that that practical way of dealing with the process will enable us not only to achieve the unification that will inure to the benefit of all the people in the Duchy of Lancaster but also to ensure that the link will be preserved in a way that many may feel is both complementary and pleasing. I trust that noble Lords will feel satisfied with my response.

Lord Waddington

My Lords, I am most grateful to the noble Baroness for her gracious and emollient reply. On 20th January, I disturbed the tranquillity of the proceedings by pointing out that the noble and learned Lord the Lord Chancellor had, in recent years, grasped to his bosom a number of new responsibilities. Here is one that he need not have treated in that way. I am saddened by his determination to do so against the wishes of local people. But there it is; I have to accept the position.

Perhaps the noble Baroness could suggest to the noble and learned Lord the Lord Chancellor that both he and she would be showing their respect for history by considering his making of appointments in the Duchy area in the name of the Chancellor of the Duchy. That is a matter that the noble Baroness could consider before Third Reading. I do not think that anything would be gained by pressing the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

My Lords, I believe this to be a convenient moment for a break in our proceedings on the Bill. I beg to move that the Report stage be adjourned until after Starred Questions.

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

[The Sitting was suspended from 1.29 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]