Courts Bill [H.L.]

HL Deb 08 May 2003 vol 647 cc1237-95

3.33 p.m.

Consideration of amendments on Report resumed.

Clause 11 [Retirement and removal of lay justices]:

Baroness Scotland of Asthal moved Amendment No. 36: Page 5, line 16, leave out subsections (1) to (4).

The noble Baroness said: In moving Amendment No. 36 I wish to speak to all the amendments with which it is grouped.

Your Lordships will know that the Supplemental List would have been abolished under the original provisions of the Bill. However, the Government have listened very carefully to the appeals of a number of your Lordships at Second Reading who set out the magistracy's view on the matter. We are restoring the Supplemental List through this package of government amendments. Many magistrates have stated that they regard being added to the list as recognition of good service for retired magistrates. The Government recognised the need to reward justices' valued service to the community and so are bringing forward these amendments to restore the Supplemental List to statute. I hope that that will give particular pleasure to the noble Baroness, Lady Seccombe, as well as to the noble Viscount, Lord Tenby. Although the noble Viscount is not present, he advocated strongly that the Supplemental List should be restored.

I hope that the amendment of the noble Baronesses was meant in a spirit of gentle reminder and may now be withdrawn. We have tinkered with it a little. I hope that they will allow for that. We have correspondingly amended Clause 11, which sets out the position on ceasing to hold office as a justice of the peace, and we have allowed for the possibility that a serving Bench chairman, or a justice whose case goes part-heard, could remain an active JP until after the age of 70.

The amendments also retain provision for magistrates who retire before 70 after many years of service to be included on the list. There are some small changes to the current position. As with the amendment of the noble Baronesses, there is no statutory reference to continuing powers to perform certain acts as the majority of these do not require statutory authority to be carried out and can be done by most people and not justices alone.

The use of the Supplemental List as a disciplinary mechanism has been removed. This reflects the way in which the Supplemental List has evolved since its introduction in 1941. At that time it was used to introduce a retirement age for justices of the peace who refused to resign despite being unable to carry out their functions, as we discussed on a previous occasion. Today the list is seen more as a "roll of honour" for retired justices and as a form of gratitude for the valuable service magistrates have provided society. With great pleasure I beg to move.

Baroness Seccombe

My Lords, I wish to speak to Amendment No. 44 and to support government Amendments Nos. 39, 40 and 41.

The amendment provoked much debate in Committee and, I am pleased to say, received much support. I shall not take up time going over old ground on the amendment except to say that I stand by my previous comments on the matter. I believe that the abolition of the list would be a mean-spirited act which would serve no purpose.

I am therefore very grateful to the Government for tabling their amendments which fulfil the function we sought and ensure that the Supplemental List will continue to provide recognition of those who have selflessly given up their time to fulfil a role in the community.

I say rather flippantly that in an idle moment I put a few figures together. If one considers that each daily session is four hours minimum, and that on average magistrates do 40 sessions per annum—which is 160 hours per annum—over 15 years that would be 2,400 hours. If one considers that the maximum number of hours that can be ordered under one community service order is 240, that means that over 15 years magistrates perform at least the equivalent of 10 maximum community service orders. That is surely a worthwhile contribution to the community.

In Committee I said that I looked forward to returning to the issue and that I hoped that I would hear wonderful news. I am pleased that I have heard just that. Having mentioned the phrase "mean-spirited", I wish to add that in no way do I accuse the Minister of such feelings. Indeed, I pay tribute to the generous way in which she has responded to my amendment and to the part she has played in bringing forward the government amendments that are before us today.

Lord Goodhart

My Lords, I am happy to support the government amendments. They constitute an entirely harmless and almost cost-free method of acknowledging the admirable service which many justices of the peace have performed by continuing to allow them to describe themselves as justices of the peace when they are no longer sitting as members of the court. That is entirely welcome. I am very glad that the Government have given way on the matter.

The Earl of Sandwich

My Lords, I cannot speak for my noble friend Lord Tenby, but he would want someone from the Cross Benches to thank the Government for that concession.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 37: Page 5, line 33, leave out second "or" and insert— ( ) on the ground of a persistent failure to meet such standards of competence as are prescribed by a direction given by the Lord Chancellor, or

The noble Baroness said: My Lords, my noble and learned friend the Lord Chancellor has tabled the amendment to clarify that magistrates may be removed for persistent failure to reach the standards of competence required. Under Section 5 of the Justices of the Peace Act 1997, the Lord Chancellor has a general power to remove magistrates from office. However, the grounds on which he may do so are not specified. The current removal powers could apply to the case of a magistrate who has proved incapable of meeting the required level of competence in the judicial role.

I stress that that power is currently recognised, with the procedure to be followed in such cases set out in the directions to advisory committees published by my noble and learned friend the Lord Chancellor. The original drafting of Clause 11(6), however, restricts the removal powers in respect of magistrates to incapacity, misbehaviour or neglect of duty. That may create difficulty with removing a lay magistrate who has persistently failed to meet the competencies prescribed for magistrates.

The amendment will ensure that the current position is maintained, and it is tabled with the support of the Magistrates' Association. I beg to move.

Lord Clinton-Davis

My Lords, how often has the Lord Chancellor's current power been exercised?

Baroness Scotland of Asthal

My Lords, I do not have specific numbers at the moment. I can certainly tell the noble Lord that it has been very rare indeed. It is not a frequently used power, but there may be occasions when it proves necessary. That is why the power has to be there. I shall be more than happy to write to him to give him whatever figures we have available, if they are available.

Lord Borrie

My Lords, I am slightly anxious about the wording of the amendment. It suggests that the second "or" in line 33 should be left out, and then that certain words should be inserted. If the second "or" is left out, the amendment seems to mean that "misbehaviour" is defined, on the ground of a persistent failure to meet such standards of competence", and so on. The Minister will know very well that "incapacity or misbehaviour" is a phrase commonly found in the grounds for dismissal of public officers of various kinds. Indeed, it is to be found in Clause 17 in relation to district judges and Section 24 of the Courts Act 1971 in relation to circuit judges.

If the Minister feels the need to add another ground for removal of a lay justice, I can quite understand that. However, if the result of agreeing to the amendment is to limit "misbehaviour" so that it no longer applies to committing criminal offences, for example, it would seem as though the drafting had gone all awry. I hope that I have misunderstood the Minister, but I am slightly anxious about the wording of the amendment.

Baroness Seccombe

My Lords, we on these Benches welcome the amendment. We understand that it meets the requirements of the Magistrates' Association, as the Minister said.

Lord Phillips of Sudbury

My Lords, I do not think that one can be too careful in considering legislative powers to remove judges; of course, justices of the peace are judges. I think that I am right in saying that a High Court judge can be removed only by Parliament itself. Although the noble Lord, Lord Borrie, refers to the power of removal of district judges under Clause 17, that does not include a provision such as that inserted by the amendment.

Perhaps I have an excess of concern about preserving the independence of justices of the peace, but I think that the question raised by the noble Lord, Lord Clinton, is very germane. I had a few words with the noble and learned Lord, Lord Mackay of Clashfern, about the amendment before he had to go elsewhere. He was unaware of occasions during his tenure as Lord Chancellor of having to remove on the grounds specified in the amendment.

The other question that occurs to me—I would be grateful if the Minister were to comment on it when she winds up the debate—is to ask who will judge persistent failure. Obviously the Lord Chancellor will have to act on the basis of reports, but who will compile those reports? Will the person about whom they are drawn up have any possibility of commenting on them, in order to defend himself or herself against the charge of persistent failure to meet standards of competence?

So far as I am aware. the existing prerogative power has worked perfectly well over very many centuries. Is it really necessary to make the amendment? I hope that no one will think that I am beginning to cast aspersions—I am plainly not—but extreme caution is called for about such matters. It occurs to me to ask whether putting a power in the Bill on a quite different ground from any existing one might not create a legislative tool that an unscrupulous or biased Lord Chancellor might be inclined to use in the case of a justice of the peace who gave him or her extreme stress or distress.

3.45 p.m.

Lord Clinton-Davis

My Lords, I want to ask the noble Lord a question before he concludes his remarks. He referred to the noble Lord, Lord Clinton. I have looked around and I cannot see him. Was he referring to me?

Lord Phillips of Sudbury

My Lords, I apologise. I meant the noble Lord, Lord Clinton-Davis, whom I have known for so many years. That was a rather late intervention, I thought.

I wonder whether one is putting a legislative tool in the way of potential misuse, especially as, in the circumstances conjectured, there seems to be no guard for the justice of the peace who will be removed. I would be interested to hear what the noble Baroness has to say.

Lord Goodhart

My Lords, I want to follow up on what was said by my noble friend Lord Phillips—Lord Phillips of Sudbury, I should point out. The amendment provides that the Lord Chancellor will prescribe in a direction the standards of competence required. Those directions, which will obviously be general directions, do not require any parliamentary procedure. As I understand it, the Delegated Powers Committee, which has just reported on the government amendments, has not suggested that they should.

On the other hand, it certainly seems that publicity is required for the directions, so that people learn what the prescribed standards are. Therefore, would it not be appropriate to require that directions should at any rate be laid before Parliament, even if there were no parliamentary process for their approval?

Baroness Scotland of Asthal

My Lords, I shall try to deal with all the issues raised. I shall first further clarify an answer that I gave earlier. We do not think that the power has ever been exercised. Generally, the experience has been that magistrates in these positions tend to resign. But we shall certainly make the trawl to ascertain the real position.

This provision is supported by the Magistrates' Association, primarily because it has a real and a proper interest in making sure that the highest possible standards are maintained by those who discharge this very important function. That is a view with which we concur.

Before responding to the points made by the noble Lords, Lord Phillips and Lord Goodhart, perhaps I may deal with the matter referred to by my noble friend Lord Borrie. The "or" does not add a paragraph to the subsection. What it does is to create a new ground—hence "(a), (b) 'or' (c)". Stylistically, given the way in which the Bill is drafted, when alternatives are put forward the "or" comes immediately prior to the final paragraph. I hope that that clarifies the point.

Safeguards will apply to the removal of magistrates. As the noble Lord, Lord Goodhart, mentioned, there is a procedure set out in directions to the Lord Chancellor's Advisory Committee. We believe that this provision is compatible with Article 6. It is also open to judicial review if needs be.

The competencies already exist. They are known as the magistrates' national training initiative competencies. Recently, they have been revised in consultation with the Magistrates' Association. It is envisaged that these would be formalised, so that the appraisal system would be administered by the Judicial Studies Board against clear competencies. Appraisal results will be considered by the Bench training and development committees, by advisory committees and by the Lord Chancellor. So there is a clear structure against which any lack of competence would be set out before any suggestion of removal.

The recollection of the noble and learned Lord, Lord Mackay of Clashfern, as reported by the noble Lord, Lord Phillips, is probably right. We do not recollect any occasion when it has been used under this Administration either.

I hope that that satisfies your Lordships—first, that this is a perfectly proper clause; secondly, that the competencies will be properly defined; and, thirdly, that there will be a proper system through which they will be applied. I hope that noble Lords will be content with that response.

Lord Phillips of Sudbury

My Lords, before the Minister sits down, perhaps I may ask whether the magistrate who is being removed will have an opportunity to know about that, and to make a response before the decision is taken?

Baroness Scotland of Asthal

My Lords, of course it will be very important that all magistrates who are trained are trained properly. They will be assessed. In accordance with the rules of natural justice, if action is to be taken against a magistrate that magistrate should properly be told the reason for the action and given an opportunity to make a response. If the proper procedures were not adopted, as I said earlier, it would be open to that magistrate, were he or she so minded and there were grounds on which to justify it, to take the decision to judicial review.

I have attempted to set out as clearly as I can the process that will be adopted for the assessment. I know that the magistrates' courts association is very pleased that the Judicial Studies Board will become involved in the issues of training and competencies, because these are matters about which it feels fairly strongly. It wants to make sure that magistrates receive the proper training that they need, that their competencies are enhanced to enable them to continue to discharge their duty with the propriety that all would wish.

Lord Phillips of Sudbury

My Lords, I hope the Minister will forgive me for intervening again on a small point. Following the point made by the noble Lord, Lord Borrie, stylistically, if one is going to remove the second "or" and place it as the Minister says, and if that is perfectly correct, one ought also to take out the first "or" and put a comma there.

Baroness Scotland of Asthal

My Lords, I can assure your Lordships that the drafting pecularities will be addressed. But I am told that the draftsmen are content with the perfection that is currently before your Lordships.

On Question, amendment agreed to.

[Amendment No. 38 not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 39 to 41: After Clause II, insert the following new clause— "THE SUPPLEMENTAL LIST (1) A list, to be known as "the supplemental list", must be kept in the office of the Clerk of the Crown in Chancery. (2) A lay justice whose name is entered in the supplemental list is not qualified as a justice of the peace to do any act or to be a member of a committee or other body. (3) No act or appointment is invalidated by reason of the disqualification of a lay justice under subsection (2).

After Clause 11, insert the following new clause—

"ENTRY OF NAMES IN THE SUPPLEMENTAL LIST

(1) Subject to subsections (2) and (3), the name of a lay justice who has reached 70 must be entered in the supplemental list.

(2) The name of a lay justice who, when he reaches 70, is chairman of the lay justices assigned to a local justice area need not be entered in the supplemental list until the term for which he is serving as chairman has ended.

(3) Where—

1. (a) proceedings are, or are expected to be, in progress on the day on which the lay justice reaches 70, and
2. (b) the lay justice is exercising functions in those proceedings as a justice of the peace, the Lord Chancellor may direct that the name of the lay justice need not be entered in the supplemental list until the proceedings have ended.

(4) The name of a lay justice must be entered in the supplemental list if—

1. (a) he applies for it to be entered, and
2. (b) the application is approved by the Lord Chancellor.

(5) The Lord Chancellor may direct that the name of a lay justice is to be entered in the supplemental list on the ground of incapacity."

After Clause 11, insert the following new clause—

"REMOVAL OF NAMES FROM THE SUPPLEMENTAL LIST

(1) A person's name must be removed from the supplemental list if he ceases to be a justice of the peace.

(2) A person's name must be removed from the supplemental list if—

1. (a) his name is in the list as a result of section (Entry of names in the supplemental list)(4) or (5), and
2. (b) the Lord Chancellor directs its removal."

On Question, amendments agreed to.

Clause 13 [Records of lay justices]:

Baroness Scotland of Asthal moved Amendment No. 42: Page 7, line 1, leave out paragraph (c) and insert— (c) the fact that a lay justice assigned to the area has ceased to be a justice of the peace or that his name has been entered in or removed from the supplemental list.

On Question, amendment agreed to.

[Amendments Nos. 43 and 44 not moved.]

Baroness Scotland of Asthal moved Amendment No. 45: After Clause 15, insert the following new clause—

"TRAINING, DEVELOPMENT AND APPRAISAL OF LAY JUSTICES

(1) Rules may (in addition to making provision under sections 10(4) and 15(6)) make provision for, or in connection with, the training, development and appraisal of lay justices.

(2) Such rules may make provision for committees, constituted in accordance with the rules, to have such functions as may he specified in the rules, including, in particular—

1. (a) providing advice and support to lay justices in connection with their functions as lay justices;
2. (b) identifying the training needs of lay justices:
3. (c) appraising lay justices and reporting on the results of appraisals;
4. (d) giving or withholding approval for the purposes of section 15;
5. (e) advising the Lord Chancellor in relation to authorisations of lay justices as members of family proceedings courts or youth courts;
6. (f) granting or revoking such authorisations on behalf of the Lord Chancellor.

(3) The Lord Chancellor must ensure that appropriate training and training materials are provided for lay justices with a view to enabling them to comply with requirements as to training imposed by rules under section 10 or 15 or this section."

On Question, amendment agreed to.

[Amendment Nos. 46 and 47 not moved.]

Clause 16 [Rules about chairmen, deputy chairmen and the bench: supplementary]:

Baroness Scotland of Asthal moved Amendments Nos. 48 and 49: Page 8, line 24, leave out "14 and 15" and insert "10, 14, 15 and (Training, development and appraisal of lay justices) Page 8, line 25, leave out "14 or 15" and insert "10, 14, 15 or (Training, development and appraisal of lay justices)

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 50: After Clause 16, insert the following new clause—

"DUTY TO CONSULT LAY JUSTICES ON MATTERS AFFECTING THEM ETC.

The Lord Chancellor must take all reasonable and practicable steps—

1. (a) for ensuring that lay justices acting in a local just ice area are kept informed of matters affecting them in the performance of their duties, and
2. (b) for ascertaining their views on such matters."

On Question, amendment agreed to.

Clause 17 [Appointment etc.]:

Lord Bassam of Brighton moved Amendment No. 51: Page 8, line 37, leave out from "1871 (c. 48)" to end of line 38.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 52 and 175.

Clauses 17 and 19 largely re-enact the provisions in the Justices of the Peace Act 1997 with regard to district judges (magistrates' courts) and deputy district judges (magistrates' courts). Subsection (2) of each clause provides that these judges may not take the oath of allegiance and the judicial oath before a lay justice. We have now clarified that this is already the position under the Promissory Oaths Act 1871, so that it is unnecessary for these clauses to say the same thing again.

Under Clause 19(2) a deputy district judge (magistrates' courts) may take the oaths before a district judge (magistrates' courts). This was the effect of the Bill providing that district judges (magistrates' courts) are to be judges of the Crown Court. On reflection, we think it preferable that both deputy district judges (magistrates' courts) and district judges (magistrates' courts)—and lay justices—should take the oaths before a judge of a higher rank; that is to say, a circuit judge or above. The amendment therefore removes paragraph (b) of Clause 19(2).

Finally, noble Lords will be heartened to know that we have taken the opportunity to update the wording of the 1871 Act, in the consequential amendments in Schedule 6. I beg to move.

On Question, amendment agreed to.

Clause 19 [Deputy District Judges (Magistrates' Courts)]:

Baroness Scotland of Asthal moved Amendment No. 52: Page 9, line 16, leave out from "1871 (c. 48)" to end of line 19.

On Question, amendment agreed to.

Clause 22 [Justices' clerks and assistant clerks]:

Baroness Anelay of St Johns moved Amendment No. 53: Page 10, line 17, at end insert ", and (c) appointed after consultation by the Lord Chancellor with the chairman or chairmen and deputy chairmen of the justices assigned to the local justice area or areas to which the Lord Chancellor intends to assign the justices' clerk.

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to my Amendment No. 55 and to government Amendment No. 54.

We return here to the theme of the importance of the relationship that is built up between the magistrates and their justices' clerk. It is a relationship built on mutual trust and is vital to the effective delivery of justice locally. We debated this matter at length in Committee.

Clause 22 gives total responsibility for the appointment of justices' clerks to the Lord Chancellor. In my amendments, both in Committee and today, we have not sought to remove or reduce that power. However, we do believe that, before making any appointment, the Lord Chancellor should consult the chairman and deputy chairman of the local justice area to which he intends to assign the justices' clerk. In my amendment, I also made allowance for the fact that the Lord Chancellor may assign the clerk to more than one local justice area. I hope that the amendment is modest and workable.

By virtue of Section 42(6) of the Justices of the Peace Act 1997, the local Bench of magistrates must currently be consulted concerning the appointment or removal of a justices' clerk for the area. The Government are removing that statutory consultation procedure and may place it in secondary legislation. We are rather left in doubt.

I return to the matter only because of our debate in Committee. The noble Lord, Lord Bassam of Brighton, stated that his understanding was that the Government would ensure that proper consultation took place. He went on to say that there would be maximum consultation and that he just wanted to avoid anything going into the Bill. He did not specify what the Government would consider to be proper or maximum consultation. I tabled the amendment to secure clarification from the Government.

I shall be very brief on Amendment No. 55 simply because it is met—in spirit, at least—by the second half of government Amendment No. 54. That amendment, which is in the name of the Lord Chancellor, introduces new subsections (2A) and (2B), the latter of which addresses the kind of issues that I sought to address in Amendment No. 55. I welcome with open arms the first part of government Amendment No. 54. I could make too much of that but I shall not in case I scare it away from the Floor of the House.

The Government are to be congratulated on thinking further on this matter. It is always nice to see one's words return in the form of a government amendment. The original drafting was put together by non-lawyers and has been tidied up beautifully by the Government. I raised the matter in Committee and pressed it to a Division. Sadly, we lost the vote. The Government are to be congratulated on this occasion for listening to the 97 noble Lords who voted against the Government. I am glad that the Government thought that the views of those noble Lords should perhaps be paramount and tabled that amendment. I am delighted that it will be added to the Bill. I beg to move.

4 p.m.

Lord Bassam of Brighton

My Lords, I shall begin with Amendment No. 54. It will place on a statutory footing the assurances that I endeavoured to provide in Committee; namely, that justices' clerks will be assigned to local areas and that the local Bench chairman or deputy chairmen will be consulted before the Lord Chancellor changes a clerk's assignment and assigns him or her to another area.

My noble and learned friend the Lord Chancellor proposed the amendment. Its principal effect will be to put beyond doubt the fact that justices' clerks will be assigned to local areas, and confirm the duty on him of consultation.

We have listened carefully to the persuasive arguments put forward in your Lordships' House. My noble friend Lady Scotland met representatives from the Justices' Clerks' Society. The society's main concern was a perceived threat to the independence of its members. It has been argued that the Bill as drafted could give the Lord Chancellor free rein to move a justices' clerk around the country pretty much at will if he did not like the advice that that clerk was giving. Despite the assurances we have given that that will not happen in practice, I well understand the society's concerns.

I also reaffirm that the Government have a regard for the close relationship that can exist between Benches of magistrates and their justices' clerks. Amendment No. 54 addresses those concerns by requiring the Lord Chancellor to assign clerks to specific areas and to consult the local Bench before changing a clerk's assignment. The Lord Chancellor would not, therefore, have the alleged free rein to move clerks at will. I can confirm with some confidence that the Justices' Clerks' Society is happy with the changes that we are proposing. The noble Baroness, Lady Anelay, nods her head in assent.

We were grateful for the important debate that we had last time and, as the noble Baroness said, to the 97 who have, despite losing the vote, prevailed on this occasion by persuading us of the strength of their feelings and the merit of their argument. In light of that and the amendment that we have tabled, I hope that the noble Baroness will feel able to withdraw the amendment. I will move Amendment No. 54 at the appropriate time.

Baroness Anelay of St Johns

My Lords, I shall not detain the Government for long after this agreement across the Chamber. I am aware—and want to state this clearly and not simply by nodding my head—that the Justices' Clerks' Society welcomes the government amendment. I will not proceed with my amendment. I place on the record my thanks to the Justices' Clerks' Society for its briefings throughout the passage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 54: Page 10, line 22, at end insert— (2A) The Lord Chancellor—

1. (a) must assign each justices' clerk to one or more local justice areas, and
2. (b) subject to subsection (2B), may change an assignment so as to assign the justices' clerk to a different local justice area or to different local justice areas.

(2B) Before changing an assignment of a justices' clerk so that he is no longer assigned to a local justice area, the Lord Chancellor must consult—

1. (a) the chairman of the lay justices assigned to that area, or
2. (b) if it is not possible or not practicable to consult the chairman, the deputy chairman or such of the lay justices assigned to or acting in the area as appear to the Lord Chancellor appropriate."

On Question, amendment agreed to.

[Amendment No. 55 not moved.]

Baroness Scotland of Asthal moved Amendment No. 56: Page 10, line 25, leave out "arrangements made by him under" and insert "a contract made by virtue of

On Question, amendment agreed to.

Clause 23 [Functions]:

Baroness Anelay of St Johns moved Amendment No. 57: Page 11 line 19, leave out subsection (7).

The noble Baroness said: My Lords, the amendment relates to Clause 23, which covers the functions of justices' clerks. When we debated this matter in Committee, my noble and learned friend Lord Mayhew suggested to the Minister that subsection (7) was superfluous. He said: Subsection (7) seems entirely superfluous. The subsection relates to subsections (4) and (5). Subsection (4) begins: 'The functions of a justices' clerk include'. Subsection (5) begins: 'The powers of a justices' clerk include'. Therefore, of course those subsections, 'do not limit … the powers and duties of a justices' clerk or … the matters on which justices of the peace may obtain assistance from their clerk"'.—[Official Report, 10/2/03; col. 499.]

As my noble and learned friend said, in any Bill it is worth saving some space. I tabled the amendment to seek clarification from the Minister and to establish whether she has subsequently sought advice on the matter. If so, with what result? I beg to move.

Lord Bassam of Brighton

My Lords, Clause 23 remodels Section 45 of the Justices of the Peace Act 1997. It makes no changes to the powers or functions of justices' clerks or their assistants.

The noble Baroness proposes an amendment to Clause 23. The purpose of the amendment would be to delete subsection (7). As she said, that point was first raised by the noble and learned Lord, Lord Mayhew. He queried the need for subsection (7) and my noble friend Lady Scotland responded in a letter to the noble Lord, Lord Hunt, following up points raised in Committee on 10th and 11th February. That correspondence was copied to noble Lords who took part in the debate.

As was explained at the time, Clause 23(7) is based on what is currently Section 45(7) of the Justices of the Peace Act 1997 and, before that, Section 28(4) of the Justices of the Peace Act 1979. Subsections (4) and (5) of Clause 23 and Section 45 of the 1997 Act set out the functions and powers of justices' clerks. Those are not exhaustive lists; that is reflected by the appearance of the word "include" in both subsections.

It could be argued that subsection (7) appears to be superfluous. However, it puts beyond doubt the fact that subsections (4) and (5) do not contain exhaustive lists. Given that that formulation has stood us well for 24 years, we are reluctant to change it now. Indeed, it could be argued that by removing the section it may be taken to have more meaning than is currently intended; for example, someone may argue that notwithstanding the use of "include" in subsections (4) and (5) the purpose must have been that those subsections limit the functions and powers of clerks. I hope that that explanation helps and that the noble Baroness will feel able to withdraw her amendment.

Lord Borrie

My Lords, I did not find that answer very convincing. The Minister repeated what the proposer of the amendment said: that both subsections (4) and (5) use the word "include"; therefore on the face of the clause it is clear that those are not exhaustive as to the functions or the powers of the justices' clerk. No doubt the historical references of my noble friend are correct, but they are not convincing as to why we should continue with superfluous words in 2003.

Baroness Anelay of St Johns

My Lords, I am grateful for the intervention of the noble Lord, Lord Borrie. I have to agree with him. I am not convinced and, to be honest, I am also more confused than I was in the first place. As it is a matter that was primarily raised by my noble and learned friend Lord Mayhew, I am duty bound to withdraw the amendment today and to ask my noble and learned friend whether he wants to seek further clarification of the obfuscation by the time we get to Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Clause 25 [Places, dates and times of sittings]:

Baroness Anelay of St Johns moved Amendment No. 58: Page 11, line 42, at end insert— ( ) In exercising his powers under subsection (1), the Lord Chancellor shall have regard to the need to ensure that court-houses are locally accessible by persons resident in each local justice area.

The noble Baroness said: My Lords, the objective of the amendment is to require the Lord Chancellor to have regard to the needs of local residents to be able to have reasonably straightforward access to a magistrates' court. Clause 25 gives the Lord Chancellor the power to direct when and where magistrates' courts shall sit. The Explanatory Notes tell us that, This would allow magistrates' courts' business to be conducted at any place in England and Wales".

That brings the magistrates' courts in line with other courts.

That makes it possible for the Lord Chancellor to control sittings of magistrates' courts within the unified courts administration set up by the Bill. It gives him considerable flexibility in deciding where magistrates' courts shall sit or whether they should sit at all. I am not against such flexibility, certainly when it is used constructively and not merely as a cost-cutting measure. I can see that in some circumstances it could lead to a magistrates' court being given the chance to sit in an area where one had previously been closed down, perhaps by being directed to sit in another court building that has survived court closures—a Crown or county court. So there could be advantages to that procedure.

The problem is that such flexibility in the hands of a centralised bureaucracy, as set up under the Bill, could tempt a future cost-cutter—forbid that we should consider the current incumbent of that office as such—to close down even more magistrates' courts on the basis that one could hold the court in a Crown Court building further away and people could travel that little further without too much difficulty or cost to the individual.

We must ensure that flexibility is used to make courthouses at least as accessible as they are now, and if possible more accessible. In the past the Lord Chancellor has sought to avoid the blame for court closures by pointing out that technically the magistrates' courts committees give sanction for the closure of a court. In future, under the Bill, it will clearly be his responsibility.

This clause could open up the way for further reductions in magistrates' courts venues unless we make it clear on the face of the Bill that the Lord Chancellor should consider access for residents in local justice areas. I am not proposing anything that is mandatory or prescriptive: he has only to consider the matters. I hope to impose that clarity on the face of the Bill. I beg to move.

Lord Renton

My Lords, I support the amendment. I have three points to make of a purely practical kind. First, these days one-way traffic causes people to travel quite long distances in a city or a town. Therefore we must ensure that courts are not placed in positions where people can get to them only by a roundabout route if they are in a vehicle or a taxi.

Secondly, many people will have to arrive in vehicles as they may be disabled or they may have to carry a number of books and other things for their court attendance—that applies particularly to barristers and solicitors. Therefore there must be a suitable stopping place in front of the court building where people can park for a few moments while they get in or out of a vehicle.

Thirdly—this point follows my second point—it would be highly desirable, if feasible, for a good many vehicles to be parked quite close to the court. I know that that will not always be easy. I have some experience of the courts in London and I know that many of them have no parking facilities whatever—indeed no easy stopping place close to the court. A standard example is Bow Street which is fairly close to here. There is no pavement outside and taxis cannot wait there for long.

I hope that the Government will do their best to overcome that problem. I grant that it will not always be easy, but I hope that strenuous efforts will be made to deal with it.

Lord Goodhart

My Lords, on behalf of these Benches I am happy to support the amendment. Few matters have caused more concern in respect of court administration over recent years than the closure of magistrates' courts, particularly in rural areas where the alternative is often to travel some 20 or 30 miles to the nearest town. We believe it is of the highest importance that justice, particularly in magistrates' courts, should be local. That is in the interests of all concerned. It is in the interests of the defendants and more importantly in the interests of the victims and other witnesses. It is in everyone's interest that they should have access to a court reasonably close to where they live and should not be compelled to travel what are in some cases substantial distances to the nearest magistrates' court. Given the large number of cases that are dealt with by magistrates' courts, we believe that the Lord Chancellor should be required to bear that in mind.

Baroness Scotland of Asthal

My Lords, the measures in the Bill and in the Licensing Bill should make courts more accessible by removing restrictions as to where magistrates' courts may sit and by allowing the use of non-court buildings where appropriate. Giving the new unified administration control of the entire court estate will also afford greater opportunities for co-location of county courts within magistrates' courts in rural areas. I take on board what the noble Lord, Lord Goodhart, said about the difficulties that have been caused by the movement of courts and what the noble Lord, Lord Renton, said about the difficulties with traffic and matters of that kind.

The noble Baroness, Lady Anelay, proposes an amendment to Clause 25. It will require the Lord Chancellor, when directing places at which magistrates' courts may sit, to have regard to the need to ensure that courthouses are locally accessible by persons resident in each local justice area. The amendment is similar in nature to Amendment No. 56 which the noble Baroness, Lady Anelay, moved in Committee.

I am grateful to the noble Baroness for raising again such an important issue. I say straightaway that I understand her concerns. However, as my noble friend Lord Bassam said in Committee on 10th February, improved access to local courts can he achieved by unifying the administration of the courts. That will allow better use of the court estate. For example, we have identified around 70 county courts where there is potential for co-location of hearings with magistrates' courts. Joint use will make those courts more viable than maintaining under-used facilities that might otherwise be threatened with closure.

As my noble friend Lord Bassam also made clear, the rural White Paper of 2000 ensures that rural needs are taken into account as part of the formal policy-making process from April 2001 onwards. The Lord Chancellor would have to have regard to this rural-proofing process when making directions under this clause.

Furthermore, provisions in Clause 25 and elsewhere in the Bill and the Licensing Bill, currently in another place, will remove statutory restrictions on where magistrates' courts can sit. That will introduce greater flexibility and allow the use of non-court buildings in local areas where appropriate. Certainly, one can see how that might be useful if there were specific difficulties which needed to be overcome and which could be best met by having a local point at which to resolve matters.

The Lord Chancellor will take into account the ease of access to a court. He is required, for example, to ensure access for the disabled under the Disability Discrimination Act.

In order to help, I conclude by saying that we hope that the agency will be a platform for other improvements. For example, we are conKdering whether we can increase the number of places where civil and family hearings take place, possibly by as many as 30 to 40 outlets to make access more convenient. We shall consult court users and other stakeholders on that issue later this year.

In Committee, a number of noble Lords said that there have been cases where, if co-location had occurred, certain courts would not have closed and a valuable resource would have been retained for the people in that area and the local community. We concur with that view. Therefore, this gives us the opportunity to look at the needs of each locality and try as best we can to use the court estate to its best effect. In view of what I have said, I invite the noble Baroness to withdraw the amendment.

Baroness Anelay of St Johns

My Lords, I am grateful to my noble friend Lord Renton and the noble Lord, Lord Goodhart, for their support, and to the Minister for her careful response. I agree entirely with her, as I hope I expressed in my opening remarks. that if there is flexibility and proper use of the estate, then the provisions in the Bill could open up—she used the term "co-location"—more opportunities. My concern is to have clarity on the face of the Bill and to bring together the guarantees and the different parts, whether it is rural-proofing—I am not too sure what the noble Lord, Lord Thomas of Gresford, would make of "rural-proofing", but that is for another day—or whatever.

Of course Front-Benchers are not allowed to have a personal view. However, if I were allowed such a personal view, I would have to say that I am very passionate about the matter of access. It is because I have that passion for access that I believe that I should test the opinion of the House on the amendment today.

4.25 p.m.

On Question, Whether the said amendment (No. 58) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 89.

Division No. 3
CONTENTS
Addington, L.	Buscombe, B.
Alderdice, L.	Campbell of Alloway, L.
Alton of Liverpool, L.	Clement-Jones, L.
Ampthill, L.	Colwyn, L.
Anelay of St Johns, B.	Cope of Berkeley, L. [Teller]
Astor of Hever, L.	Craig of Radley, L.
Avebury, L.	Craigavon, V.
Barker, B.	Crickhowell, L.
Beaumont of Whitley, L.	Dixon-Smith, L.
Biffen, L.	Ezra, L.
Blatch, B.	Ferrers, E.
Bradshaw, L.	Finlay of Llandaff, B.
Brougham and Vaux, L.	Flather, B.
Burnham, L.	Fookes, B.

Geraint, L.	Roberts of Conwy, L.
Goodhart, L.	Rodgers of Quarry Bank, L.
Harris of Peckham, L.	Roper, L.
Harris of Richmond, B.	Russell, E.
Holme of Cheltenham, L.	St. John of Bletso, L.
Howe, E.	Sandberg, L.
Howe of Idlicote, B.	Sandwich, E.
Hurd of Westwell, L.	Seccombe, B. [Teller]
Jenkin of Roding, L.	Selsdon, L.
Kirkham, L.	Sharp of Guildford, B.
Lester of Herne Hill, L.	Shaw of Northstead, L.
Luke, L.	Shrewsbury, E.
Lyell, L.	Shutt of Greetland, L.
McColl of Dulwich, L.	Skehnersdale, L.
McNally, L.	Smith of Clifton, L.
Maddock, B.	Stewartby, L.
Marlesford, L.	Strathdyde, L.
Mayhew of Twysden, L.	Swinfen, L.
Methuen, L.	Tebbit, L.
Molyneaux of Killead, L.	Thomas of Gwydir, L.
Monson, L.	Thomas of Walliswood, B.
Newby, L.	Tope, L.
Noakes, B.	Tordoff, L.
Northover, B.	Ullswater, V.
Norton of Louth, L.	Vivian, L.
Phillips of Sudbury, L.	Wakeham, L.
Rawlings, B.	Walmsley, B.
Razzall, L.	Weatherill, L.
Redesdale, L.	Wigoder, L.
Rennard, L.	Willoughby de Broke, L.
Renton, L.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Haskel, L.
Ahmed, L.	Hayman, B.
Amos, B.	Heaky, L.
Andrews, B.	Hollick, L.
Archer of Sandwell, L.
Ashley of Stoke, L.	Hollis of Heigham, B.
Ashton of Upholland, B.	Howells of St. Davids, B.
Bach, L.	Hoyle, L.
Bassam of Brighton, L. [Teller]	Hughes of Woodside, L.
Berkeley, L.	Irvine of Lairg, L. (Lord Chancellor)
Bernstein of Craigweil, L.
Billingham, B.	Judd, L.
Blackstone, B.	King of West Bromwich, L.
Borrie, L.	Kirkhill, L.
Brett, L.	Layard, L.
Brooke of Alverthorpe, L.	Lea of Crondall, L.
Brookman, L.
Burlison, L.	Lipsey, L.
Carter, L.	Macdonald of Tradeston, L.
Clarke of Hampstead, L.	McIntosh of Haringey, L.
Clinton-Davis, L.	MacKenzie of Culkein, L.
Crawley, B.	Mackenzie of Framwellgate, L.
Davies of Coity, L.	Massey of Darwen, B.
Davies of Oldham, L.	Merlyn-Rees, L.
Desai, L.	Milner of Leeds, L.
Dormand of Easington, L.	Mishcon, L.
Dubs, L.	Mitchell, L.
Elder, L.
Evans of Parkside, L.	Morris of Manchester, L.
Evans of Temple Guiting, L.	Ouseley, L.
Evans of Watford, L.	Pitkeathley, B.
Falconer of Thoroton, L.	Ramsay of Cartvale, B.
Farrington of Ribbleton, B.	Rendell of Babergh, B.
Fyfe of Fairfield, L.	Rooker, L.
Gale, B.	Sainsbury of Turville, L.
Gavron, L.	Scotland of Asthal, B.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.	Sewel, L.
Goudie, B.	Sheldon, L.
Gould of Potternewton, B.	Simon, V.
Graham of Edmonton, L.	Stone of Blackheath, L.
Grocott, L. [Teller]	Strabolgi, L.

Taylor of Blackburn, L.	Whitaker, B.
Turner of Camden, B.	Whitty, L.
Walker of Doncaster, L.	Wilkins, B.
Warwick of Undercliffe, B.	Williams of Mostyn, L. (Lord Privy Seal)
Wedderburn of Charlton, L.	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.35 p.m.

Lord Bassam of Brighton moved Amendment No. 59: Page 12, line 2, after "distribution" insert "and transfer

The noble Lord said: My Lords, Amendments Nos. 59, 102 and 103 clarify that a magistrates' court transferring a criminal or civil matter to another magistrates' court must have regard to directions made by the Lord Chancellor, with the concurrence of the Lord Chief Justice, under Clause 25(2). That will ensure, in particular, that when deciding whether to transfer a criminal matter, the magistrates' court takes account of the needs of victims, witnesses and other interested parties.

The principal effect of the amendments would be to put beyond doubt that the directions to be made by the Lord Chancellor will cover the transfer as well as the distribution of general business of the magistrates' courts.

I am sure that all noble Lords present today will recall that in Committee, on Amendment No. 73, which was tabled by the noble Lords, Lord Kingsland and Lord Hunt, I confirmed, as the Minister speaking for the Government, that I would table an amendment to Clause 25. Amendment No. 73 would have amended Clause 41 to require a magistrates' court to hear representations from all parties before transferring a criminal matter. At that stage, I said that the amendment was unnecessary, given the provisions of Clause 25(4), which states that the directions to be made under Clause 25(2) may, in particular, require the court to take account of where the offence was committed, where the witnesses or the majority of witnesses reside, or where the person charged with the offence resides. However, on reflection, I said that we would consider Clause 25(2) again. I also acknowledged that the wording could perhaps be improved or clarified to refer to "the transfer" as well as "the distribution" of the business of magistrates' courts. Happily, I can tell the House that Amendment No. 59 makes that change.

Amendments Nos. 102 and 103 introduce new subsections to Clauses 41 and 43 which make clear that the power to transfer criminal or civil proceedings under these clauses must be exercised in accordance with any directions made under Clause 25(2).

With that careful explanation of why we have tabled the amendment at this stage, I hope that noble Lords will be happy with what the Government have done. I beg to move.

Baroness Anelay of St Johns

My Lords, I thank the Minister for his further reflection on those matters. They arose as a result of an amendment tabled and moved by my noble friend Lord Hunt of Wirral.

On Question, amendment agreed to.

Clause 31 [Fines officers]:

Lord Bassam of Brighton moved Amendment No. 60: Page 14, line 36, leave out "(whenever passed)

The noble Lord said: My Lords, I will deal with all the amendments in this group together, as they all flow from the clarification of the meaning of "enactment" introduced by Amendment No. 160 to Clause 97. That amendment introduces to the Bill a definition of "enactment" to ensure that there is no doubt that the word also includes subordinate legislation and that it refers to an enactment whenever passed or made. The amendment also makes clear that the clauses dealing with Northern Ireland are also included.

The other amendments in the group all flow from that amendment. Amendments Nos. 60 and 85 simply remove the words "whenever passed" where they appear after the word "enactment" in those clauses. Amendments Nos. 114 and 122 both remove the words "whenever passed" and ensure that those provisions also refer to revoking an enactment. As noble Lords will no doubt know, "revoke" is the correct term when referring to subordinate legislation. Amendments Nos. 129 and 157 simply ensure that reference is included to revoking an enactment. This is a technical drafting matter. I beg to move.

On Question, amendment agreed to.

Baroness Seccombe moved Amendment No. 61: Page 15, line 4, leave out "Schedule 2, or

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 62 and 63.

This is the first amendment on the important issue of tines. The Bill enables the Lord Chancellor to amend the operation of the fines collection scheme that is being piloted. That means that the scheme that will ultimately be implemented may bear little resemblance to the one debated in the House. The amendment would delete the power of the Lord Chancellor to modify or alter Schedule 2 without the approval of Parliament.

We realise that the scheme must have some flexibility in order to produce the best possible scheme to be implemented. However, we feel that the Bill allows too much. Allowing fines officers to have a quasi-judicial function is a large step, and it must be monitored. It is vital that we do not blur the line between administration and the Bench. The European Convention on Human Rights requires punishment to be imposed by an independent and impartial tribunal, after a fair and public hearing. The Bill could be interpreted as not complying with that requirement. I beg to move.

Lord Goodhart

My Lords, we support the amendment. If we are to come up with a schedule that is substantially modified, as compared with that which appears in the Bill, there ought to be a proper parliamentary procedure, involving affirmative rather than negative resolution.

4.45 p.m.

Baroness Scotland of Asthal

My Lords, the provisions of Clause 31 are necessary if we are to implement the best possible fines collection scheme. By piloting different elements of the scheme in different areas, we will ensure that the effectiveness of the new measures can be evaluated. We will then be able to adjust any parts of the scheme that are found to be ineffective and put to Parliament for approval a package of tried and trusted measures for national roll-out.

Amendments Nos. 61 and 62, in the names of the noble Baronesses, Lady Anelay of St Johns and Lady Seccombe, would prevent the modification of Schedule 2 before or after the pilot schemes for which Clause 31 allows. Amendment No. 63 would make the regulations setting out the detail of the fines collection scheme subject to the affirmative resolution procedure. I am grateful to the noble Baronesses for raising again the important issue of appropriate parliamentary scrutiny. I understand their concern to ensure that, as the noble Baroness, Lady Seccombe, said so eloquently on the previous occasion, what we see is what we get".—[Official Report, 10/2/03; col 510.] The Bill provides for the use of the negative resolution procedure for the details of the pilots and, subsequently, the affirmative resolution procedure for the entire package, as determined in the light of the pilots. Thus, the scheme finally arrived at will receive full parliamentary scrutiny. However, as I said in Committee on 10th February—I refer noble Lords to col. 511 of Hansard—the provision in Clause 31(5), which allows modifications of Schedule 2, is necessary if we are to get full value from the pilots. As several noble Lords made plain during the debates, the enforcement measures are a significant departure from existing practice, and the Government believe that they should be thoroughly tested before implementation. Amendment No. 61 would remove the flexibility to test different parts of the scheme in different areas, defeating the point of having a pilot scheme.

The Government are further considering how to develop the arrangements. We are considering whether to add to the scheme by making wider use of attachment of earnings and deductions from benefits in the fines collection scheme, particularly for offenders with a track record of default. We are also considering whether to create a new offence penalising those who fail to provide means information and/or the financial details necessary to allow an attachment order to be made. In the light of such considerations, I give the House early warning that we may introduce further amendments to the schedule in another place. Noble Lords will, of course, have the opportunity to consider them in due course.

In addition, the Home Office is examining the feasibility of alternative sentences, including unpaid work instead of fines in particular circumstances. If the new amendments and alternative sentences are taken forward—I say "if" because it is right for the House to be apprised of the fact that that is within contemplation and is likely to occur after the Bill leaves this place—they will need to be piloted along with those already set out in Schedule 2.

Under the current provisions, once the pilot schemes have been evaluated, the Lord Chancellor may make an order under Clause 31(8) modifying Schedule 2 and associated legislation, in the light of experience gained. Amendment No. 62 would remove that power. The effect would be that, even if an element of the scheme were found to be ineffective or unworkable, it would have to remain in the scheme, because it would be impossible to modify or remove it. I cannot believe that that is what noble Lords on the Benches opposite or the noble Lord, Lord Goodhart, would wish. Furthermore, any temporary alterations to existing enactments in connection with the operation of the pilots would not be made permanent. That would render the whole scheme unworkable on implementation.

As the scheme stands, any permanent modifications to Schedule 2 and/or existing enactments would be subject to affirmative resolution by virtue of Clause 98 before the scheme was rolled out nationally. We would have an opportunity to taste and see if it was good. If it was good, we could bring it back to the House, which would have the opportunity to consider it using the affirmative resolution procedure. If it were not satisfactory, we would not have to proceed with it. We would have a basis on which this House and another place would be able to make an informed decision. That is the better way.

Amendment No. 63 would go further, by making any regulations on fine enforcement made under the Bill subject to affirmative resolution. As I made clear in Committee, the Government do not believe that the detailed arrangements for the Schedule 2 pilots should require a high level of parliamentary scrutiny. That view was accepted by the Select Committee on Delegated Powers and Regulatory Reform, which found that making the power for fines regulation subject to negative resolution represented appropriate delegation and the correct level of parliamentary control.

The Government understand the concerns expressed about modifications to the scheme without explicit consent through affirmative resolution, but the Bill already prevents the fines collection scheme from being implemented nationally, unless Parliament has approved the final scheme in that way.

In the light of what I said—it was as clear an explanation as I could muster—I invite the noble Baroness to withdraw the amendment. The scheme that we have set out provides the House and another place with the clarity and opportunity that they, rightly, should have.

Baroness Seccombe

My Lords, I am grateful to the noble Lord, Lord Goodhart, for his support. We are in a whole new world of human rights legislation, so there is much to consider. I thank the noble Baroness for her very detailed reply and her explanation of the new thinking in the Lord Chancellor's Department. It may be enough for us not to bring the amendment back at Third Reading, but because there is so much in what she said, we should like to consider. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62 and 63 not moved.]

Baroness Seccombe moved Amendment No. 64: After Clause 31, insert the following new clause—

"POWER OF THE COURT TO ORDER FINES OFFICERS TO REPORT BACK TO COURT

A magistrates' court may require a fines officer to report to it on the conduct of any case."

The noble Baroness said: My Lords, we are very concerned about the removal of powers from magistrates to fines officers. Currently, there is nothing in the Bill to ensure that magistrates can keep control of a case and exercise their judicial function rather than handing it over to the fines officers. We were told by the Minister in Committee that the court may reserve a case to itself by not making a matter subject to the fines collection scheme or that a fines officer simply can refer a case back to a court. However, there is nothing in the Bill to state this.

We are particularly concerned with the issue of a court being able to keep control of a case when the punishment will concern a clamping order. If such an order needs to be made, it should be made by the magistrate or the judge concerned with the case. It is imperative that magistrates keep judicial control of a case even where it is useful to use the functions of a fines officer. Again, this relates to the issue of human rights. It makes sense to include in the Bill provisions for magistrates to keep control of a case and manage the fine even if they are not dealing with the administration. I beg to move.

Lord Renton

My Lords, in this Bill we are dealing with a new and very unusual power. Although I support the amendment proposed by my noble friend as far as it goes, I say with deep respect to her and to my noble friend Lady Anelay that the proposed new clause does not go far enough. I think that instead of it just being an enabling power, it ought to be an automatically compulsory power. In other words, it should read: The fines officer shall report to the court on each case". After all, the court was responsible for fines in each case and has the right and responsibility to consider what has been done in each case. Therefore, I very much hope that at Third Reading—even if this amendment is accepted by the Government now—we could have an even stronger provision.

Baroness Scotland of Asthal

My Lords, of course I hear the anxiety expressed by the noble Lord, Lord Renton, and, indeed, by the noble Baroness. I hope that I shall reassure noble Lords that that anxiety is misplaced. The fines collection scheme is designed to reduce the burden on judicial and court time by transferring administrative responsibilities—the collection of fines—to the fines officers. There is nothing in these provisions or in the scheme to prevent the court from monitoring particular cases if that is thought by the court to be desirable. So there is nothing in the provisions which would prevent the court from saying, on any given case, precisely what it requires of the fines officer; precisely under what conditions it would expect to have the matter referred back to it for consideration; and keeping control of any individual case in a manner which it deems to be appropriate and specific to the needs of that case.

Noble Lords will know that there is a wide variety in the nature of cases and defendants who come before the court. Some come for the first time; some come after having many appearances. The court has to make an assessment as to the most appropriate way of dealing with each case and fashion both the sentence and the methodology adopted to that particular case. To require each and every case to be referred back to the magistrates may put an unnecessary burden upon them which they would not seek themselves.

The new clause after Clause 31 proposed by the noble Baroness, Lady Seccombe, would allow the court to place a requirement on the fines officer. Although I am grateful to the noble Baroness for raising such an important issue and I understand her concerns, in responding to a similar amendment in Committee tabled by the noble Lords, Lord Kingsland and Lord Hunt of Wirral, I made it clear that the fines officer can refer the case back to the court at any time. There is also nothing to prevent the court from stipulating at point of sentencing that it wishes the fines officer to report back on the progress of a particular case within the fines collection scheme, if that is thought desirable. In addition, I should add that the court can take the matter back if the offender asks for the matter to be referred after a discretionary decision of a fines officer.

We suggest that the right balance is as currently structured. I draw the attention of the noble Baroness to paragraph 8 of Schedule 2 which provides that the offender can appeal to the court against the fines officer's decision. Therefore, we suggest that this amendment is unnecessary.

Lord Renton

My Lords, before the noble Baroness sits down, she referred to the opportunity of the court to get a report from the fines officer. The decision that the court would have to make as to whether to ask for that information surely would place a much bigger burden on the court than just being told what has happened in each case. Would that not simplify matters?

Baroness Scotland of Asthal

My Lords, I should emphasise—the noble Lord, Lord Renton, will know—that the fines officer will be an officer of the court. There will be a record kept of what happens in relation to each and every case, and the court will be seized of that information. I was seeking to make clear that when a magistrate comes to hear a particular case, the magistrate is, in accordance with propriety, told about the background of the defendant and the nature of the case, and makes the informed decision as to the most appropriate sentence.

It is open to the magistrates to say the precise basis upon which they are making the order, what they wish the fines officer to do and, if they so desire, the events which would trigger the matter coming back to them for further consideration. All that is perfectly possible under the scheme. It allows the magistrates to choose those cases which they find troubling or concerning, where they think that opportunity should be seized themselves. Of course it is open, too, to the defendant, if he disagrees with the way in which the discretion is being discharged, to have the matter referred back to the magistrates for them to look at it also. Therefore, it meets the needs of both parties in that regard.

We think that it would enable the fines officers to be of great assistance to the magistracy in discharging their duty. The administrative reduction of the burden would be welcome. It is not meant in any way to take away the primary role and function that the magistrates will have to impose the sentence and to manage the case.

5 p.m.

Baroness Seccombe

My Lords, I thank the noble Baroness for that detailed explanation. In my experience, when defendants appear before the court for sentencing and a fine is imposed, at that stage, almost all are optimistic about how they will pay it. They agree readily to pay the fine within 28 days. However, I am concerned that if that fails and a defendant does not pay the fine, even when instructed to do so by instalments, the fines officer is then able to issue a clamping order. That action changes the character of the case. At that point, I should have thought that the court ought to be able to look again at the case and make the order, rather than leaving that power to the fines officer.

I am grateful to my noble friend Lord Renton for his suggestion. We feel that there is much to consider before Third Reading, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Schedule 2 [Collection of fines by fines officers]:

Lord Goodhart moved Amendment No. 66: Page 61, line 34, leave out sub-paragraphs (2) and (31 and insert— (2) Interest shall be payable from the date of default on the amount of the fine for the time being unpaid at the rate of interest payable on judgment debts.

The noble Lord said: My Lords, this large group of amendments, most of which are consequential, deals with one issue; that is, instead of being faced with a lump-sum increase in the fine, a defaulter should be required to pay interest on it.

Paragraph 9 of Schedule 2 to the Bill provides for a once-and-for-all increase in the fine in the case of default. Such "default" means that a person has failed to pay the fine on the date when it was due. The purpose of the amendments is to replace that once-and-for-all liability of the defaulter to an increase in the fine with a running liability to pay an increase which will accrue from day to day while the fine remains unpaid.

Lord Clinton-Davis

My Lords, I am obliged to the noble Lord for giving way. Does any other enactment include a provision of the kind now being proposed?

Lord Goodhart

My Lords, not that I am aware of, but I am also not aware of any other legislation that provides for a fine to be increased on default.

Under paragraph 6 of Schedule 2, a discount can be made available for payment made in due time. That is perfectly acceptable. It is a principle already used quite widely as regards, for example, parking fines. A discount is available for prompt payment. But paragraph 9—while I am not sure whether it is unique, it is certainly highly unusual—provides for an increase on default. In effect, it duplicates paragraph 6 by providing that if the fine is paid on time, the discount is available, but if the fine is not paid on time, not only is the discount lost, but potentially one becomes liable to an increase.

Although I would like the Minister to confirm it, I assume that the amount of the increase will be fixed by the regulations and will not be a matter left to the discretion of the fines officer. However, under paragraph 11 the fines officer will have the power to waive or reduce the amount of the increase.

I suggest that that is the wrong approach. A substantial increase on the default, over and above the loss of the discount, may create hardship. Furthermore, a one-off increase presents no further incentive for the defaulter to pay thereafter. I believe that it would be better to impose a more gentle increase, but one that would keep on running until the date of payment. Such an increase would be interest. I suggest that the appropriate rate of interest would be the rate of interest due by statute on judgment debts. It would be simple interest, of course, and I do not believe that it would be a problem for the fines officer to calculate the amount of interest and then to tell the defaulter what is due.

That would be a fairer and better way of achieving the result that the Government intend and which we support; that is, of ensuring that someone who defaults on the payment of a fine is not left unscathed by the delay. However, for the reasons I have set out, I think that this would be a better method than the one that has been chosen by the Government. I beg to move.

Lord Clinton-Davis

I am not disposed to speak against the idea that has been proposed, but I do not think that, in practice, it should be encouraged. My uncertainty stems from the fact that, while a reduction in the fine as envisaged in the Bill serves as an incentive to prompt payment, the aspect that has been outlined by the noble Lord is rather uncertain. In my view, that uncertainty is inimical to the purposes of the legislation.

The proposal adumbrated by the noble Lord is not totally foreign to my views, but having regard to what I have said, I think that the element of uncertainty that would be introduced is something that should not be encouraged. However, I shall wait to hear what my noble friend has to say in response.

Baroness Seccombe

My Lords, we on these Benches support the amendment moved by the noble Lord, Lord Goodhart. I shall cite my experience once again. Those who do not pay their fines usually have a string of other debts, and it is for that reason that they do not pay their fines either. However, they avoid paying fines for an added reason: their other debts do increase as a result of interest being added to them. So, naturally, the debt that is pushed to the bottom of the pile is the fine.

We believe that it would be helpful to have such a form of—how can one put it?—incentive so that fine defaulters will know where they stand. Their fines will be put in the same position as any other form of debt.

Baroness Scotland of Asthal

My Lords, I seem to be repeating these words rather often today, but I do understand the concerns that lie behind this issue. Perhaps I may go through how we have sought properly to address it.

Amendments Nos. 66 to 79, 82 and 84 tabled by the noble Lords, Lord Goodhart and Lord Thomas of Gresford, would replace the existing arrangements set out in Schedule 2 to the Bill which allow for an increase in the fine on default, with a regime of charging interest on the fine for every day that any amount of it remains unpaid. It is that point which we believe would be quite difficult, because interest rates may or, indeed, will change. Calculations made on a day-to-day basis may prove to be a challenge. I shall amplify on that later in my remarks.

I am pleased that we now have the opportunity to debate this issue. It was raised both at Second Reading and in my letter of 23rd December, when I touched on it in response to the points then made. The subject was raised again in Committee by the noble Lord, Lord Goodhart, and by the noble Baroness, Lady Seccombe.

The Government understand the concerns which have prompted these amendments. They seek, first, to ensure that the fines officer does not, by activating an increase in the fine upon default, stray into judicial territory and, secondly, to ensure that the defaulter can repay the fine at a more reasonable rate rather than facing a single uplift.

The Government have taken great care to ensure that the fines officer does not have the power to alter the decision of the court. It is for the court to make a collection order under Schedule 2. The fines officer then exercises discretion within the constraints of that order. The fines officer has no power to determine the level of the increase. Thus I can reassure the noble Lord, Lord Goodhart, that the amount of the increase will be fixed by regulations and will not be set at the discretion of the fines officer. The increase is an automatic consequence of default under the terms of the collection order, which will be waived on subsequent co-operation.

The noble Lord, Lord Goodhart, mentioned the issue of fixed penalty fines for road traffic offences. He will know that there are provisions that, just as you can get a discount for prompt payment, there can be an increase for delayed payment. So this is not a novel departure.

The level of increase will be set in the regulations made by the Lord Chancellor and expressed as a percentage of the original fine. The proposed pilot schemes will enable the effectiveness of different levels of increase to be assessed, and we shall consult the magistrates' courts community before the level that will apply to the final scheme is set.

Of course, measures already exist allowing for interest to be levied on unpaid confiscation orders under Section 10 of the Drug Trafficking Act 1994—which is due to be replaced by Section 12 of the Proceeds of Crime Act 2002—but applying such a model to fine enforcement would have a number of disadvantages.

First, the procedure would be administratively complex. The fines officer would have to perform a fresh calculation whenever it became necessary to check the amount outstanding, whether for the purpose of reminding the defaulter of the sum now due or for the purpose of ensuring that the amount owed, plus interest, has been accounted for. Both the fines officer and the offender would, in effect, be attempting to hit a moving target.

There would be enormous scope for confusion and for appeals arising from disputed calculations. The likelihood of small over-payments or under-payments could not be ruled out and would give rise to onerous administrative work for court staff, greatly increasing the running cost of the scheme. Calculating the interest daily would be a huge amount of work for even very small sums of money. For example, on a £100 fine, the interest at a rate of 8 per cent per annum is £8 per year, or just over 2p per day.

Of course similar drawbacks may be said to apply to charging interest on confiscation orders. However, the number of cases of confiscation orders in default and where interest is charged is considerably lower than the number of fines in default. In 2000, 836 confiscation orders were made in relation to drug trafficking offences; in the same year, more than 1 million fines were imposed. Furthermore, the sums involved in confiscation orders are often considerably higher than the average fine. In 2000, the average confiscation order was just under £6,000; the average fine was £143.

The administrative burden that the noble Lord's proposals would impose would not be inconsiderable. I agree with my noble friend Lord Clinton-Davis that such uncertainty and variation should not be encouraged.

The amendments set no ceiling on the amount of interest that could be charged. In extreme cases this could lead to defaulters owing sums that they were simply unable to pay. There is a danger that this could lead to a disinclination to face up to the problem, pushing the defaulter into taking out further credit or causing him to commit further crimes in order to raise the money. There may also be disputes over the period the fine has been outstanding, especially in courts where there are not the facilities to accept immediate cash payments.

I take on board the point made by the noble Baroness, Lady Seccombe, about making sure that there is an incentive for the fines not to be pushed to the bottom of the pile and for other debts to take precedence. We believe that the scheme we propose will achieve this without the undue complexity of the calculations envisaged in the amendment.

As it stands, Schedule 2 allows for a single increase upon default. This will be a percentage of the original fine, restricted to a maximum of 50 per cent. That is a far simpler calculation for the fines officer. It sets a limit on the amount that could fall to be paid by the defaulter, and the defaulter will know immediately how much extra he will have to pay in consequence of default or could avoid paying by compliance.

Finally, the 50 per cent set in the legislation for increase and discount are maximums designed to limit the Lord Chancellor's power. There is no presumption that the actual figures used will be 50 per cent or that the percentage discount will necessarily be the same as the percentage increase. We hope that the pilots will enable us to determine the optimum percentage.

We understand the concerns expressed but we believe that the noble Lord's proposals are far more complex than the measures we propose. The pilots will assist us to see whether we have got it right and, in accordance with the other issues, we shall be able to assess and make further comment through the procedures I have outlined. With those assurances, I invite the noble Lord to withdraw the amendment.

Lord Goodhart

My Lords, the noble Baroness's arguments against our proposals do not really bear close examination. In particular, that applies to the argument that it will be very difficult to calculate such interest. My view is that any competent fines officer should be able to do the calculation in about 30 seconds on a pocket calculator. It would certainly be perfectly simple to set up a program on the office computer. It would simply be a matter of entering the amount of the fine, the date of the default and the date of payment. The program would then calculate the amount due within a few seconds. I cannot see that that would cause any problems.

The suggestion has also been made that the interest might eventually lead to the accumulation of sums that defaulters would be unable to pay. At present, it is proposed that an increase could be made of up to 50 per cent in one go, which would take effect immediately. However, if interest is charged at the rate applicable to judgment debts, which I believe currently ranges between 5 per cent and 6 per cent, it would take eight years to build up to the level of a 50 per cent—

Baroness Scotland of Asthal

My Lords, I tried to make it clear that the 50 per cent would not automatically apply; it is a maximum that would set a limit against which the Lord Chancellor could not fix it. It is by no means sure that 50 per cent will be the appropriate figure adopted.

Lord Goodhart

I appreciate that, my Lords. However, I also assume that it will not be a 5 per cent or a 10 per cent increase, because that would not really make much difference. One is probably looking at an increase of, say, 25 per cent, which means that it will take about four years before the interest becomes equivalent to the amount of the increase. For the reasons outlined by the noble Baroness, Lady Seccombe, there is a very clear incentive on people who have fines not to pay them simply because, unlike personal debts, they do not increase.

We are dealing with an important group of amendments. Therefore, I wish to test the opinion of the House.

5.19 p.m.

On Question, Whether the said amendment (No. 66) shall be agreed to?

Their Lordships divided: Contents, 75; Not-Contents, 89.

Division No. 4
CONTENTS
Addington, L.	Jenkin of Roding, L.
Alderdice, L.	Lester of Herne Hill, L.
Anelay of St Johns, B.	Luke, L.
Astor of Hever, L.	Lyell, L.
Barker, B.	McColl of Dulwich, L.
Beaumont of Whitley, L.	McNally, L.
Bradshaw, L.	Marlesford, L.
Bridgeman, V.	Mayhew of Twysden, L.
Brougham and Vaux, L.	Methuen, L.
Burnham, L.	Montagu of Beaulieu, L.
Buscombe, B.	Newby, L.
Clement-Jones, L.	Noakes, B.
Colwyn, L.	Northover, B.
Cope of Berkeley, L.	Norton of Louth, L.
Craigavon, V.	Phillips of Sudbury, L.
Crickhowell, L.	Prashar, B.
Dixon-Smith, L.	Rawlings, B.
Ferrers, E.	Redesdale, L.
Finlay of Llandaff, B.	Rennard, L.
Flather, B.	Renton, L.
Fookes, B.	Roberts of Conwy, L.
Fraser of Carmyllie, L.	Rodgers of Quarry Bank, L.
Glenarthur, L.	Roper, L.
Goodhart, L.[Teller]	Russell, E.
Hanningfield, L.	St. John of Bletso, L.
Harris of Richmond, B.	Sandberg, L.
Holme of Cheltenham, L.	Seccombe, B. [Teller]
Howe, E.	Selsdon, L.
Howe of Idlicote, B.	Sharp of Guildford, B.
Hunt of Wirral, L.	Shrewsbury, E.

Shutt of Greetland, L.	Tordoff, L.
Skelmersdale, L.	Trefgarne, L.
Smith of Clifton, L.	Ullswater, V.
Swinfen, L.	Wakeham, L.
Tebbit, L.	Wallace of Saltaire, L.
Thomas of Walliswood, B.	Walmsley, B.
Tope, L.	Weatherill, L.
	Windlesham, L.

NOT-CONTENTS
Acton, L.	Haskel, L.
Ahmed, L.	Hayman, B.
Alton of Liverpool, L.	Hollis of Heigham, B.
Amos, B.	Howells of St. Davids, B.
Andrews, B.	Howie of Troon, L.
Archer of Sandwell, L.	Hoyle, L.
Ashton of Upholland, B.	Hughes of Woodside, L.
Bach, L.	Irvine of Lairg, L. (Lord Chancellor)
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.	Judd, L.
Billingham, B.	Kilclooney, L.
Blackstone, B.	King of West Bromwich, L.
Borrie, L.	Kirkhill, L.
Brett, L.	Layard, L.
Brooke of Alverthorpe, L.	Lea of Crondall, L.
Brookman, L.	Lipsey, L.
Brooks of Tremorfa, L.	Macdonald of Tradeston, L.
Burlison, L.	MacKenzie of Culkein, L.
Carter, L.	Mackenzie of Framwellgate, L
Clarke of Hampstead, L.	Massey of Darwen, B.
Clinton-Davis, L.	Merlyn-Rees, L.
Crawley, B.	Milner of Leeds, L.
Davies of Coity, L.	Mishcon, L.
Davies of Oldham, L.	Mitchell, L.
Dean of Thornton-le-Fylde, B.	Morris of Manchester, L.
Desai, L.	Pitkeathley, B.
Dormand of Easington, L.	Ramsay of Cartvale, B.
Dubs, L.	Rendell of Babergh, B.
Elder, L.	Rooker, L.
Erroll, E.	Sainsbury of Turville, L.
Evans of Parkside, L.	Scotland of Asthal, B.
Evans of Temple Guiting, L.	Sewel, L.
Evans of Watford, L.	Sheldon, L.
Falconer of Thoroton, L.	Simon, V.
Farrington of Ribbleton, B.	Stone of Blackheath, L.
Fyfe of Fairfield, L.	Temple-Morris, L.
Gale, B.	Turner of Camden, B.
Gavron, L.	Walker of Doncaster, L.
Gibson of Market Rasen, B.	Warner, L.
Gordon of Strathblane, L.	Warwick of Undercliffe, B.
Goudie, B.	Whitaker, B.
Gould of Potternewton, B.	Whitty, L.
Graham of Edmonton, L.	Wilkins, B.
Grocott, L. [Teller]	Williams of Mostyn, L. (Lord Privy Seal)
Harris of Haringey, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.30 p.m.

[Amendments Nos. 67 to 79 not moved.]

Lord Goodhart moved Amendment No. 80: Page 63, line 2, at end insert "(other than a clamping order)

The noble Lord said: My Lords, Amendment No. 80 concerns clamping orders. Paragraph 13 of Schedule 2 sets out a number of further steps which can be taken against defaulters by the fines officer. Those steps include the classic methods of enforcing debt, such as distress warrants or an attachment of earnings order. I see no problem with the fines officer making routine enforcement orders of that kind.

The further steps which can be taken include a vehicle clamping order. That is not primarily a method of getting the money, though it could eventually lead to the money being obtained by the sale of the vehicle, but is intended to put pressure on the defaulter to pay the fine by making life particularly difficult for him or her. Depending on the circumstances, it may make life very difficult indeed. The clamping order could deprive the defaulter of the means to travel to work. It could deprive the defaulter's spouse or partner of the means to travel to work. It could deprive the defaulter of the means to take his or her children to school. A clamping order is therefore a very powerful weapon to ensure the payment of a fine.

I accept that there should be power to make a clamping order. It is, no doubt, a very effective method of getting a fine paid. But we believe that such a power should not be wielded by a fines officer, who is not a judicial officer. If the fines officer thinks that a clamping order is needed, he should be required to refer the case back to the magistrates in order that they can make the clamping order themselves if they see fit. I beg to move.

Baroness Scotland of Asthal

My Lords, Amendment No. 80 would remove the sanction of clamping from the list of measures available to the fines officer as further steps which may be taken against persistent defaulters. Similarly, Amendment No. 81 alters the wording of paragraph 13(3) of Schedule 2 to restrict the making of a clamping order to the court.

The National Audit Office has recommended delegating more enforcement responsibilities to administrative staff. The fines collection scheme will allow for this. It will be for the court to make a collection order under the scheme. But once the collection order is made, we believe it right that the fines officer should take the purely administrative decision as to the best way of enforcing it. In some cases, that will involve making a clamping order. However, only the court will be able to order the sale of a vehicle if the fine then remains unpaid.

The Government believe that clamping a defaulter's car will prove an effective method of encouraging payment. As I said in Committee when we debated a similar amendment, we know that vehicles are sometimes the closest thing to individuals' hearts—closer, sometimes, even than their family members. Therefore, as I said then, vehicles must be jealously protected. Faced with the choice of paying a fine or having the precious vehicle clamped and possibly sold by order of the court, we believe that many defaulters will find the money.

The knowledge that the fines officer can and will use this sanction without the need to return to the court, should be a powerful incentive to pay up. If it works as intended—and this will be determined by the pilot schemes—the number of defaulters who are actually deprived of the use of their vehicles for substantial periods, or whose vehicles are subsequently sold, is likely to be small.

The pilot schemes will reveal whether clamping will cause significant problems. Should any element of the scheme fail to operate as intended, we will take the opportunity provided by Clause 31 to make any necessary adjustments before putting the final scheme to Parliament for approval.

There is already a precedent for vehicle clamping without a court order. The legislation for congestion charging allows for a vehicle found to be within the congestion zone to be clamped if that vehicle has three outstanding fines. There does not need to be a prior reference to the court, and authorised enforcement officers are able to order the clamping of the vehicle. This would obviously be a matter about which the court could express a view at the time of imposing the sentence. It could caution or advise the defendant that this may be a method which would be used to enforce those decisions.

We think this is a useful incentive. Once we have evaluated the results of the pilot, we will of course reflect on whether it proves to be as effective as we hope. However, we have a way of expunging this proposal if it is not as successful as one would like. On that basis, I invite the noble Lord to withdraw the amendment.

Lord Goodhart

My Lords, the other amendment in this group is in the names of the noble Baronesses, Lady Anelay and Lady Seccombe. Although they did not speak to it, I understand, as the noble Baroness, Lady Seccombe, said in a previous debate, that their view is the same as ours.

I will of course consider carefully what the Minister has said. We will have to consider, as no doubt the noble Baroness, Lady Seccombe, will consider, whether an amendment in one or other of these forms should be brought back on Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 81 and 82 not moved.]

Lord Goodhart moved Amendment No. 83: Page 64, line 11, at end insert— ( ) The magistrates' court may (either before or after the end of the period of 10 working days) extend the time for appealing under this paragraph.

The noble Lord said: My Lords, the amendment is more important than it may look at first sight. It is concerned with the strict time limits on the steps to be taken by a defaulter under Schedule 2 for an appeal against an order by a fines officer. Paragraph 15 imposes a 10-day limit on an appeal by a defaulter against a further steps notice.

My amendment is defective, in that other 10-day limits should have been included. For example, an appeal made under paragraph 8 from a decision by the fines officer under paragraph 7 is subject to the 10-day limit, as is an appeal under paragraph 11 from a decision made under that paragraph. However, the amendment is sufficient to raise the issue.

The time limits are strict, and well established legal authority exists that states that if there is a time limit in a Bill and the Bill says nothing about a power to extend that time, the time cannot be extended however unfortunate the circumstances. Of course, it is right that an appeal should be brought within 10 working days if there is no good reason for failing to do so. However, undoubtedly there are problems in that regard.

First, the period of 10 working days is measured from the date of the decision, not from the receipt of notice of the decision. The actual time for the appeal may be as little as seven working days. Although first-class post is in theory delivered within one day—and I assume that regulations will require that the notice is to be delivered by first-class post—it is well known that first-class post, especially if it is posted at the end of the working day, as much office post is, does not necessarily arrive on the morning of the next working day.

Furthermore, there is the possibility, which in many cases will be fact, that a defaulter will have left his or her home for work before the delivery of the post and will not get the notice until the evening. If one assumes that the post is not delivered until the second morning, and is not opened until that evening, that reduces the time available to seven days. At the very least, the Government should be prepared to reconsider that point. Will they consider whether the limit should be 10 working days from the receipt of the notice rather than from the date of the decision?

Secondly, and even more importantly, there may easily be entirely legitimate reasons for the notice of the decision not being brought to the attention of the defaulter in time for an appeal. A defaulter may be working away from home or on holiday—even defaulters are entitled to take holidays. There may be a family illness, which requires the defaulter to be in a different part of the country. There are perfectly good reasons why a 10-day time limit may be broken.

When tight time limits are imposed and no power is given to extend those time limits for any reason whatever, an injustice is bound to occur. The Minister said in her letter that that could be sorted out by the pilot scheme. However, such a scheme has to operate within the boundaries of Schedule 2 as it now stands, and it cannot be part of a pilot scheme to give leave to extend the time. I would go further and say that absence of a power to extend the time is so plainly unreasonable that I see no need to await the results of the pilot. The Government should accept the amendment without waiting for the results of the pilot. I beg to move.

Lord Renton

My Lords, Schedule 2 is complicated and at times rather obscure. We surely have an obligation to ensure that justice will be done, in spite of its complexity. In particular, I think that paragraph 15 of Schedule 2 needs to be clarified and expanded. I warmly support Amendment No. 83, which I think will ensure that justice will be done.

5.45 p.m.

Baroness Scotland of Asthal

My Lords, I again find myself saying that I understand the noble Lord's concerns. However, as I set out in my letter, I think that we have the route to satisfy those concerns. I should perhaps emphasise that we would not be expecting an appeal to be completed in 10 days, only for the intention to appeal to be lodged so that a date can be set. However, I am grateful to the noble Lord for raising this issue, which he also raised in Committee. I should like to reassure him if I can.

As I indicated to the noble Lord, we intend to pilot the Schedule 2 fine enforcement measures prior to implementation in order to evaluate their effectiveness. The Bill provides that for the purpose of the pilot schemes any aspect of Schedule 2 may be modified. Consequently, we already have the power to pilot the appeals measures with a longer time period, allowing us to test whether the 10-day period is sufficient. If experience of the pilots shows that the 10-day period is insufficient, then my noble and learned friend the Lord Chancellor has the power under Clause 31(8) to amend this provision in Schedule 2. The final scheme will then be put before Parliament for approval under the affirmative resolution procedure.

We have used the date of the decision because the date of receipt of the decision can vary and is arguable. We think that that may be the clearest way of dealing with the matter. It may be that, following the pilots, an amendment using the Clause 31(8) procedure along the lines of Amendment No. 69 could prove the best way forward. However, we do not know whether that is the case now. Given that assurance and the fact that the provisions allow for a longer pilot period, I hope that the noble Lord will feel able to withdraw the amendment.

If I may, I should like to make a further point on the ability to increase interest. Although I realise that the Government have won the day on that issue, I also hope that I have already demonstrated that we do not stop thinking just because we have won. I still think that we are right. However, I should like to reassure the noble Lord that the proposed increase would take effect only if the offender refused or failed to cooperate, and would be waived if the offender contacted the court and agreed to make new payment terms. I do not think that I made that absolutely clear in responding to the earlier amendment. I hope that it gives the noble Lord some comfort in his defeat.

Lord Goodhart

My Lords. the noble Baroness may not be entirely surprised to hear that I am not satisfied with the answers that she has given. Experience in other circumstances where there are rigid statutory time limits has certainly convinced me that rigid time limits, particularly when they are quite short, as they are here, are a serious source of injustice. That might just as well be recognised now as when a pilot scheme has proved it. Of course it is different when there are very long time limits, as there are in the limitation of actions when one has a period of three, six or 12 years depending on the type of proceedings brought. In this case, the 10-day time period is very short.

I do not intend to take the matter further now because, first, as I indicated beforehand, my amendment is defective. Secondly, it does not specifically raise what I think really ought to be raised by a separate amendment; namely, the problem of the 10 working days being noted from the date of the decision rather than from the date when notice of the decision is received, which is of course a much more common form of starting the time running. In those circumstances I shall withdraw Amendment No. 83 but I give notice that it is likely that I shall bring back a revised form of that amendment on Third Reading.

Baroness Scotland of Asthal

My Lords, before the noble Lord sits down, in referring to Clause 31(8) procedure I may have referred to Amendment No. 67. I think that I should have referred to Amendment No. 83. If I have referred to an amendment in error, I should like to correct that for the purposes of the record.

Lord Goodhart

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved.]

Clause 32 [Designated officers and magistrates' courts]:

Baroness Scotland of Asthal moved Amendments Nos. 85 and 86: Page 15, line 23, leave out "(whenever passed) Page 15, line 27, leave out "arrangements made by him under" and insert "a contract made by virtue of

On Question, amendments agreed to.

Clause 36 [Disqualification of lay justices who are memhers of local authorities]:

Lord Goodhart moved Amendment No. 87: Page 18, line 4, leave out subsection (5).

The noble Lord said: My Lords, this amendment proposes to leave out subsection (5) of Clause 36. Clause 36 provides that a lay justice who is a member of a local authority may not sit as a judge in proceedings brought by or against or on appeal from a decision of that authority or a committee or officer of that authority. That is a statement of the obvious. Clearly, any lay justice in that position should not sit in that case.

Subsection (5) then states: No act is invalidated merely because of the disqualification under this section of the person by whom it is done". Any justice of the peace who is a councillor must surely realise that he or she, as an interested party in the proceedings by or against the local authority of which he or she is a member, or on appeal from a decision of that authority or a committee or a member of that authority, should not be sitting as a judge. A tribunal containing such a justice of the peace cannot, I believe, be regarded as impartial or independent for the purposes of Article 6 of the European Convention on Human Rights as incorporated by the Human Rights Act.

It is true that in this case the Joint Committee on Human Rights accepted the explanation by the Lord Chancellor that the inclusion of the word "merely" left it open for the other party to the case to challenge a decision on Article 6 grounds. I have great respect for the Joint Committee but I believe that the Joint Committee allowed itself to be too easily persuaded. I cannot see how any case of this kind could avoid a successful challenge by a discontented other party.

As was pointed out in Committee by the noble and learned Lord, Lord Donaldson of Lymington, there is, of course, a principle that a decision of a court taken in excess of its authority is treated as valid unless and until it is challenged. The removal of subsection (5) would not, of course, affect that principle. A decision taken by a court which included a disqualified justice of the peace would stand until it was challenged.. But the effect of subsection (5) is that a decision of a court is valid even if it is challenged. I believe that it conflicts with Article 6.

To avoid the effect of subsection (5) it would be necessary to show something more than the fact that one of the members of the tribunal was disqualified. In effect, it would be necessary to show actual bias. That is as far as one can stretch the meaning of the word "merely". "Merely" must mean that it is not enough to show simply that a person sat who was disqualified. It must be necessary to go the next step and show that that person was guilty of actual bias. But under Article 6 the mere presence of an interested party as a member of the court prevents the tribunal being independent and impartial without the need to show actual bias. Therefore, I believe that there is a conflict between subsection (5) and Article 6 of the European convention. I believe that to avoid that incompatibility subsection (5) should be deleted. I beg to move.

Lord Renton

My Lords, I regard this as an important amendment. The provision is in complete contradiction with subsections (1) and (2), which are emphatic in saying that: A lay justice who is a member of a local authority may not act", in the circumstances described. That applies to, the Crown Court or a magistrates' court", under subsection (1), and, the Common Council of the City of London", under subsection (2). However, subsection (5) states: No act is invalidated … because of the disqualification… of the person by whom it is done". That seems to obliterate the effect of subsections (1) and (2). I implore the Government to give sympathetic understanding to the amendment, as it is very important.

Baroness Anelay of St Johns

My Lords, I support this important amendment. I am certainly grateful to my noble friend Lord Renton for the clarity with which he put his case. I also agree with the noble Lord, Lord Goodhart, that, if a justice of the peace who is disqualified sits, effectively the tribunal cannot be impartial for the purposes of Article 6 of the human rights convention.

The very existence of subsection (5) surely means that a party who complains about the presence of a councillor on the tribunal would have to bring new proceedings. Those proceedings might then have to investigate the circumstances of a decision in the original proceedings, in order to discover whether the tribunal had indeed been independent and impartial, despite the presence of and perhaps participation by the disqualified local authority member. That seems unwieldy. It is expensive, time-consuming and complicated. It seems much more practical simply to knock out subsection (5).

Baroness Scotland of Asthal

My Lords, as the noble Lord, Lord Goodhart, suggested, he has brought back the amendment asking for the removal of subsection (5). I listened very carefully to what he said on the previous occasion and indeed today, and also to the comments of the noble Lord, Lord Renton. I have also reconsidered the matter, as I promised.

Our conclusion is that we are content with the draft as it stands. It does not prejudice anyone's rights under Article 6 of the European Convention on Human Rights. The Joint Committee on Human Rights has agreed with that. I am very reluctant to second-guess the Joint Committee on the grounds suggested in Committee, and by implication today, by the noble Lord, Lord Goodhart, that it is "too easily persuaded". On this occasion I find his bravery commendable if, some may think, slightly foolhardy.

As I explained in Committee, the use of "merely" in the clause is crucial. If a local authority justice were to adjudicate where Article 6 of the convention was engaged and in circumstances where that article was violated by his so doing, that would be unlawful by reason of Section 6 of the Human Rights Act 1998. It will always be open to a party to appeal if it is felt that Article 6 bites in any instance. Clause 36(5) does not, therefore, override the requirements of impartiality imposed by Article 6 of the European Convention on Human Rights or by English common law, nor does it purport to do so.

As the noble and learned Lord, Lord Donaldson, said in Committee, there is authority for the proposition that the participation of a disqualified person in the proceedings of a court renders the proceedings voidable but not void. The clause as drafted merely clarifies that decisions taken by a disqualified tribunal, where those decisions bear no prejudice from that disqualification, should not automatically fall. A listing officer or the magistrate himself, if it is realised that a magistrate is disqualified under the clause, will not let him sit in that case. If, as a result of the officer's failing to realise, a disqualified sitting goes ahead, that decision will stand unless and until it is challenged, in any event.

It is true, of course, that the effect of subsection (5) is to place a burden on the challenger to show that the judicial decision should be declared invalid, rather than merely that the tribunal was disqualified. But I am not so sure that that is a noticeably worse alternative than doing without subsection (5). In practical terms, I am not sure that there is likely to be much difference. Unlike the noble Lord. I can conceive of interlocutory decisions where the potential interest played no part, or in the circumstances no other decision was likely—for example, standard directions, or an extension of a time limit given on good grounds.

It seems to me burdensome, and potentially an abuse, for a challenger to delay matters more easily by demanding a re-hearing in such circumstances. Again unlike the noble Lord, I am not entirely sure that a magistrate would always have at the front of his mind circumstances that might lead to disqualification. The clause is quite wide; for example, I question whether—if as per subsection (3)(b) a joint committee or board on which the authority was represented was party to the action—it might be possible for disqualification to be overlooked, and for that disqualification of itself to have little effect on the course of the decision.

I also want to point out that the phrase in question is a re-enactment of Section 66(6) of the Justices of the Peace Act 1997, as I said in Committee. Prior to that, it has been extant since the Justices of the Peace Act 1949. I know that the noble Lord, Lord Goodhart, may feel that that is not an adequate reason to retain it. However, I should be very surprised to be informed that it had caused injustices or problems in all that time—if it has, I have certainly not heard of any, nor has anyone to whom I have referred the matter—or that it had affected people's faith in the criminal justice system for the worse.

Since the advent of the Human Rights Act we are, of course, even more aware of the requirement for independence and impartiality; but they were perfectly familiar concepts to our predecessors as well, and we do not believe that the position has changed so much that subsection (5) has now become wholly unacceptable.

I hope, therefore, that the noble Lord will feel able to withdraw the amendment. I reiterate that we have given this matter very careful and detailed reconsideration. Having done so, I am afraid that on this occasion we have come to the same conclusion.

6 p.m.

Lord Renton

My Lords, while I greatly admire the way in which the noble Baroness handles some very complicated matters arising on the Bill, I ask her to bear in mind that this clause has to be interpreted within its own terms. She referred, as I understand it, to the Human Rights Act as a way of explaining what the effect of subsection (5) would be. But surely, if there is to be a doubt about its interpretation—and it is clear from what the noble Lord, Lord Goodhart, said that there could be serious doubt—the Government have a duty to remove that doubt. Otherwise, injustice will be done. I do hope that the noble Baroness will think about this matter still further.

Lord Goodhart

My Lords, I am most grateful to the noble Lord, Lord Renton, and the noble Baroness, Lady Anelay, for their support. Once again, I am by no means satisfied with the Minister's answer.

I find it impossible to interpret subsection (5) as meaning anything other than that it is not sufficient to invalidate the original decision merely to show that one of the parties who took that decision was in fact a disqualified person under Clause 36(1) and (2). If that is correct—I believe that it is—the only way in which one could invalidate the original decision is to go beyond the mere fact of disqualification and show that there was actual bias or at least grounds for believing that there might have been actual bias. That is clearly contrary to the case law involved in Article 6, which shows that the fact that an interested party sits as a member of a tribunal—I refer, for example, to the well-known case from the Channel Islands, the McGonnell case—will in itself be sufficient to invalidate the decision even if there is no evidence of actual bias in that case.

I will consider the Minister's response and discuss the matter with one or two colleagues, who are experts—perhaps more expert than I am—in human rights law. I may well come back to the issue but, for today, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 [Effect of Act of Settlement on existing justices of the peace]:

Lord Goodhart moved Amendment No. 88: Page 18, line 26, at end insert— ( ) Nothing in that section shall disqualify any person from being appointed or acting as a justice of the peace.

The noble Lord said: My Lords, this amendment arises in relation to a very odd and almost inexplicable situation. Clause 37 provides that nothing in Section 3 of the Act of Settlement 1700, invalidates … any appointment before 31st January 2002 of a justice of the peace". Section 3 of the Act of Settlement excludes anyone who is born outside the United Kingdom, Ireland or the Commonwealth from enjoying any office or place of trust unless they were born of English parents—"English", it should be noted; it is not sufficient to be born of Scottish or Irish parents.

Section 3 has been excluded in relation to a considerable number of offices or places of trust. For many years, no attention has been paid to Section 3 in relation to the appointment of justices of the peace. I do not know the background to this clause but I can only assume that on or about 31st January 2002, it was decided—presumably on the basis of legal advice—that Section 3 prevented someone who was born outside the United Kingdom or the Commonwealth from being appointed a justice of the peace unless they were born of English parents.

The effect of Clause 37 is to reinstate those who were appointed before the 31st January 2002, but to retain the exclusion for those who were not appointed before that date. That seems to me to be a completely absurd restriction. It discriminates against people on the ground of their national origin.

I believe that at least some judges of the higher courts have been born outside the United Kingdom and the Commonwealth of non-English parents. I happen to know that the late Sir Michael Kerr., who was an extremely distinguished Lord Justice of the Court of Appeal, was born in Germany of German parents. Was he disqualified, although no one realised at the time? If he was not disqualified from holding the very high office that he held, why should someone be disqualified from being appointed as a justice of the peace?

The purpose of Amendment No. 88 is to exclude appointments of justices of the peace altogether from the operation of Section 3 of the Act of Settlement. That seems to me to be a matter of obvious common sense and fairness. I hope that the Government will see that that is the case and will accept the amendment or agree to bring back their own amendment to the same effect. I beg to move.

Baroness Anelay of St Johns

My Lords, I support the amendment. When I sat as a magistrate on the North West Surrey Bench I sat in a community where 15 per cent of the population had come to this country as primary migrants. Not only are they a part of the community, but they are a valuable part. About 11 or 12 per cent of the population of the Woking area come from one particular area in Pakistan and the rest of the overseas population come from China and Italy. We have a vibrant Sicilian culture in a part of Woking close to where I live.

I find it extraordinary that such people should be discriminated against. The noble Lord, Lord Goodhart, has made a cogent case. Section 3 refers to "English parents". When I looked at this I considered it in its broader sense and I was shocked that I had not realised that they were disqualified. In my area I am sure that we would welcome such people onto the magistrates' Bench because they have a valuable part to play in dispensing justice.

Baroness Scotland of Asthal

My Lords, while we have every sympathy with the intention of the amendment we believe that it is inappropriate for this Bill. This is an amendment to Clause 37 which has not previously been tabled. It seeks to avert the effect of Section 3 of the Act of Settlement, thus enabling my noble and learned friend the Lord Chancellor to appoint foreign nationals as lay magistrates.

The Government plan to introduce a new Bill, the Crown Employment (Nationality) Bill, that will initiate changes designed to alter nationality requirements for certain holders of offices under the Crown. Both the professional judiciary and the lay magistracy are included in the ambit of that Bill. If the amendment were accepted as it stands, it would have the effect of creating an anomaly between the lay magistracy and the professional judiciary to whom the nationality requirements would still apply. Furthermore, it would create presentational difficulties—if I can put it that way—for the Crown Employment (Nationality) Bill.

We would prefer that this amendment be remitted so that we can consult with those handling the Crown Employment (Nationality) Bill and clarify whether it will cause presentational difficulties for them before addressing the meat of this amendment. Should that not be the case, we can revisit the amendment at a later date and consider how best it could be introduced into the Bill. I hope that that is a satisfactory response to the plea that has been made by the noble Baroness and by the noble Lord.

6.15 p.m.

Lord Goodhart

My Lords, I am absolutely astounded by the revelation that Sir Michael Kerr, who, as I said, was one of the most distinguished judges of the past 50 years, never actually qualified for appointment to the Bench.

However, I hear what the noble Baroness says about this matter. I am glad that the Government intend to take the point in hand. But that could presumably take some time. Clearly, the Bill will not be passed in this Session of Parliament. No doubt it will have to fight its way onto the list for the next Session. In the absence of any undertaking, which clearly the Minister cannot give, as to the date when it is to be introduced, it seems that there is a great deal to be said for dealing with this very simple and obvious point now rather than waiting.

Lord Clinton-Davis

My Lords, my noble friend said that she would want to consider this matter again at a later stage while we are considering this Bill. What is wrong with that?

Lord Goodhart

My Lords, I do not think that the noble Baroness has gone far enough. Unless there is a clear intention to bring a more far-reaching change on to the statute book, either in this Session or, as is more likely, the next Session of Parliament, I think that we should press for the amendment to be incorporated into this Bill.

I should be interested to know how and why this point came to be raised in the first place—whose opinion it was and how the question was ever raised. However, I shall of course consider what the noble Baroness has said and whether this matter should be brought back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 [Power to make rulings at pre-trial hearings]:

[Amendment No. 89 not moved.]

Schedule 3 [Pre-trial hearings in magistrates' courts]:

[Amendment No. 90 not moved.]

Baroness Scotland of Asthal moved Amendment No. 91: Page 68, leave out lines 30 to 32 and insert "—

1. (a) the magistrates' court commits or sends him to the Crown Court for trial for the offence charged in the information, or
2. (b) a count charging him with the offence is included in an indictment by virtue of section 40 of the Criminal Justice Act 1988."

The noble Baroness said: My Lords, this clause and schedule set out the provision for making pre-trial binding rulings in the magistrates' court. This is an important new power in the context of the integrated court structure that this Bill will introduce and the wider criminal justice reform programme, which will improve the preparation and progression of cases through the criminal justice system.

Under this clause and schedule, a pre-trial ruling can be made by a judge or magistrates at a pre-trial hearing in a criminal case that is to be tried summarily in the magistrates' court, as to issues of substantive law and admissibility of evidence which have been identified by the parties and would benefit from early resolution.

Since the noble Lord has not moved Amendments Nos. 89 and 90 I shall not explore the matter further unless any noble Lord indicates that that would prove helpful.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 92: Page 68, line 34, leave out from "section" to end of line 39 and insert "no report of matters falling within subsection (2) may be published in England and Wales.

The noble Baroness said: My Lords, I wish to speak to this extensive group of amendments en bloc. Schedule 3 sets out the provision for making pre-trial binding rulings in the magistrates' court. Under the schedule, a pre-trial ruling can be made by a judge or magistrate at a pre-trial hearing in a criminal case that is to be tried in the magistrates' court. Pre-trial rulings will encompass issues of substantive law and admissibility of evidence that has been identified by the parties and would benefit from early resolution.

Amendments Nos. 92 to 100 deal with the restrictions on the reporting of pre-trial hearings in magistrates' courts. Although there is no jury in a magistrates' court, reporting restrictions have been included to ensure that defendants, or defendants in linked proceedings in the Crown Court, are protected from possible adverse publicity. Such publicity might jeopardise the fairness of the trial should the case be heard ultimately in the Crown Court.

Amendment No. 92 deals with the territorial extent of the restrictions on reporting. The reporting restrictions in the Bill extend only to England and Wales, rather than to the entire United Kingdom, as do the restrictions in the Criminal Justice Bill. The narrower territorial extent is considered adequate for the purposes of the power that we are introducing to the magistrates' courts, which will generally be applicable to cases unlikely to attract widespread press interest.

Amendment No. 94 allows reporting of basic factual matters and is intended to ensure that a defendant's right to a fair trial is adequately balanced against the public interest in maintaining free and open reporting of court proceedings.

Amendments Nos. 95 to 100 would extend reporting restrictions and the offences associated with breach to cover electronic communications, including publication on the Internet. Those amendments also make the reporting restrictions in the Bill consistent with the provisions in the Criminal Justice Bill.

Amendment No. 100 extends liability to prosecution for offences in connection with reporting committed by a corporate body to specified officers of the corporate body in question. We consider that the modern methods of electronic communication present a greater threat of the dissemination of adverse publicity, which might jeopardise the fairness of a trial. We have therefore strengthened protection against that risk by extending liability to specified officers of a corporate body. Those provisions are consistent with the measures in the Criminal Justice Bill. There are safeguards in that an offence must be proved to have been committed with the officers' consent or connivance, or to be attributable to their neglect. I beg to move.

Baroness Anelay of St Johns

My Lords, I wish to ask a question as a layman, as I may have misunderstood the Minister's explanation. On the precautions that she said were being taken against the publication of information relating to pre-trial hearings, the Minister said that she did not think it a problem that something could be published in Scotland, for example, as it is unlikely to be the kind of information that people would know about, so it would not be reported there anyway. In certain headline cases, such as Soham, information on a pretrial review might be published in Scotland. Scottish publications are readily sold throughout England; therefore, it is not just a matter of it being irrelevant whether the limited audience in Scotland could get hold of information because nobody here would hear about it. Scottish newspapers are in the House of Lords Library and are sold throughout the country. Have the Government thought through how information could be made available in a particular area? A magistrate hearing a case could see the information in a newspaper, or, if the case goes to the Crown Court, the jury there might see it.

Baroness Scotland of Asthal

My Lords, I must confess that it is not thought that that will be a major problem or issue. The noble Baroness will know of the limits that apply when we make rules that are referable to England and Wales. She has raised an interesting issue, and I will write to her about it. I do not think that it will be a problem, but, if it is, I shall look into the matter and reply. I shall place a copy of any appropriate letter in the Library.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 93: Page 69, line 21, leave out from "matters" to end of line 22.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 94 to 100: Page 69, line 24, at end insert— (6A) Subsection (1) does not apply to a report which contains only one or more of the following matters—

1. (a) the identity of the court and the names of the justices;
2. (b) the names, ages, home addresses and occupations of the accused and witnesses;
3. (c) the offence or offences, or a summary of them, with which the accused or any of the accused are charged;
4. (d) the names of counsel and solicitors in the proceedings;
5. (e) where the proceedings are adjourned, the date and place to which they are adjourned;
6. (f) any arrangements as to bail;
7. (g) whether a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service was granted to the accused or any of the accused.

(6B) The addresses that may be included in a report by virtue of subsection (6A) are addresses—

1. (a) at any relevant time, and
2. (b) at the time of their inclusion in the publication.

(6C) In subsection (6B), "relevant time" means a time when events giving rise to the charges to which the proceedings relate are alleged to have occurred. Page 69, line 26, leave out from first "on" to end of line 27 and insert "the publication of a report of any matter Page 69, line 29, leave out paragraph (a) and insert— (a) references to publication of a report of matters falling within subsection (2)—

1. (i) include references to inclusion of those matters in any speech, writing, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public (and for this purpose every relevant programme is to be taken to be so addressed), but
2. (ii) do not include references to inclusion of those matters in a document prepared for use in particular legal proceedings;"

Page 69, line 37, leave out "or included in a relevant programme Page 69, line 40, leave out "written Page 69, line 43, leave out paragraph (b) Page 70, line 4, at end insert— ( ) in the case of any other publication, any person publishing it. (1A) If an offence under this section committed by a body corporate is proved—

1. (a) to have been committed with the consent or connivance of, or
2. (b) to be attributable to any neglect on the part of, an officer, the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.

(1B) In subsection (1A), "officer" means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity. (1C) If the affairs of a body corporate are managed by its members, "director" in subsection (1B) means a member of that body.

On Question, amendments agreed to.

[Amendment No. 101 not moved.]

Clause 41 [Power to transfer criminal cases]:

Baroness Scotland of Asthal moved Amendment No. 102: Page 19, line 35, leave out "again."" and insert "again. (4) The power of the court under this section to transfer any matter must be exercised in accordance with any directions given under section 25(2) of the Courts Act 2003."

On Question, amendment agreed to.

Clause 43 [Power to transfer civil proceedings (other than family proceedings)]:

Baroness Scotland of Asthal moved Amendment No. 103: Page 20, line 22, leave out "proceedings."" and insert "proceedings. (4) The power of the court under this section to transfer a hearing must be exercised in accordance with any directions given under section 25(2) of the Courts Act 2003."

On Question, amendment agreed to.

Clause 46 [Court security officers]:

Baroness Scotland of Asthal moved Amendment No. 104: Page 22, line 18, leave out "arrangements made by him under" and insert "a contract made by virtue of

On Question, amendment agreed to.

Lord Hunt of Wirral moved Amendment No. 105: Page 22, line 19, at end insert— (1A) Anyone appointed or designated under subsection (1) must be a person who has been subject to and passed a police check.

The noble Lord said: My Lords, we now move to consider some the issues that we dealt with in Committee relating to court security officers. I shall speak only to Amendment No. 105, as my noble friend Lord Swinfen wishes to speak to Amendments Nos. 106 and 107 in their place on the Marshalled List.

Amendment No. 105 would insert a provision to ensure that anyone appointed or designated as a court security officer must be, a person who has been subject to and passed a police check". In Committee, we tabled an amendment to probe the nature of the conditions that will have to be met before a person can be appointed as a court security officer. I recall that, although the Minister said that it would be unhelpful to state specifically in the Bill exactly what qualities would be required for the role, he also said: The role carries significant responsibility, so it is crucial that a certain standard should be met before a person can become a court security officer". In particular, the noble Lord stated: it is envisaged that there will be a full criminal records check to make sure that applicants are of good character".—[Official Report, 11/2/03; col. 592.] Like other noble Lords, I have reflected on the Minister's words and have taken advice elsewhere. The Minister will be aware that there are now tighter controls on private security staff, wheel dampers, bouncers and so on. The Security Industry Authority regulates the industry and makes it compulsory to obtain a licence. Those who wish to obtain a licence must prove that they have had no involvement in any sort in crime for up to five years.

Exactly what checks on applicants for the position of court security officer will the Minister commit the Government to? The Law Society has expressed its concern on this matter and has stated that, where any civilian exercises powers usually only exercised by the police, it is important to ensure that these powers are properly regulated and that those exercising them are accountable". It would be helpful if the Minister would clarify whether court security officers will come under the bracket of private security staff. If not, will they face the same checks as those who come under that category? In that context, I beg to move.

6.30 p.m.

Lord Borrie

My Lords, I have no doubt that in a moment or two my noble friend the Minister will give the noble Lord, Lord Hunt, the reassurances that he seeks. But when I looked at the amendment and Clause 46(2) to which he referred, I saw no case for the amendment. Clause 46(2) refers to regulations to provide the conditions to be met before anyone can be designated a court security officer. What case can there be for particularising one condition and setting it forth in the Bill when other conditions are to be set out in regulations? I do not think that the noble Lord, Lord Hunt, has made a case for that. I suppose that he is probing further than at the earlier stage in order to get the Minister to talk more about it. If that is the case, that is splendid, but there really is no case for having this on the face of the Bill.

Lord Swinfen

My Lords, I should like to confirm what my noble friend Lord Hunt said. I shall speak to my two amendments separately and not conjoined with this one.

Lord Bassam of Brighton

My Lords, I was intending to deal with both Amendments Nos. 105 and 106 because they are grouped together.

Lord Swinfen

My Lords, Amendment No. 106 is paving to Amendment No. 107.

Lord Bassam of Brighton

My Lords. in that case I shall try to deal with just Amendment No. 105. Clause 46 deals with the appointment and designation of court security officers. Under the current system of court security, the only courts in which there is statutory provision for a court security officer are the magistrates' courts. Although there is some security provided in other courts, as I am sure noble Lords will appreciate, the standard and rigour vary considerably and the number of security-related incidents in courts is rising. As we discussed in Committee, this is an issue ofconcern. For that reason the noble and learned Lord the Lord Chancellor has made a commitment to improve court security across the system. The creation of the role of court security officer should begin to equalise the security provisions across all courts and combat the rise in incidents involving violence or threatened violence.

The proposition moved by the noble Lord, Lord Hunt, is to add to the Bill that anyone appointed or designated by the Lord Chancellor as a court security officer must first have been subject to and passed a "police check". I presume that this is meant in the sense of a check on an individual's criminal record, although that is not made clear in the amendment. The Government understand the importance of ensuring that court security officers have passed appropriate background security checks prior to designation or appointment. We are grateful to the noble Lord for raising this very important point.

The noble Lord was right to remind me of my words in Committee. But I am advised that access is limited to police records and that no routine procedures exist by which an external party can instigate a "police security check" of the nature envisaged by the noble Lord. Where checks are carried out, they tend to be on an occasional basis as a result of a reciprocal agreement generally between the police and the local court managers. To require the police to carry out such checks for every person designated or appointed would be very resource intensive for the police. We argue that it could seriously detract from their other important statutory duties.

However, prior to appointment, several different methods of carrying out background checks can be used. The department is aiming to use the basic disclosure service offered by the Criminal Records Bureau which, as noble Lords know, was recently established, but which currently and famously is working on its backlog. Once that service becomes available, it will provide a criminal record check incorporating several levels of disclosure for different types of employment. Indeed, that is the basis on which it has been established.

In the meantime, the Lord Chancellor's Department carries out checks on all service contractors and court service staff, including in-house security guards. All employees and contractors must be subject to the basic check which verifies the identity of the person concerned. The counter-terrorist check must be carried out for all first and second tier Crown Courts, although in practice it is carried out for all courts. It includes both a criminal record check and verification with the security services. In addition, the two security companies with which the Court Service works are affiliated to the British Security Industry Association and, as a consequence, are required to complete a 10-year employment history for all employees, together with a formal declaration of criminal records. Those background investigations are extensive.

I hope it will be apparent that the current checks undertaken by the Lord Chancellor's Department in relation to all security staff go some way beyond the level of detail provided by occasional police checks. Because of the importance of the issue raised by the noble Lord, this regime will continue and it will certainly be the case when the current procedures give way to access to the Criminal Records Bureau once the service is fully operational.

I hope that my detailed explanation, along with a clear statement that we are going well beyond what was envisaged by the noble Lord, will enable him to feel confident about withdrawing his amendment.

Lord Hunt of Wirral

My Lords, not only am I confident, I am certain that I shall be following the right course in withdrawing the amendment. The Minister has answered not only the points I raised, but he has also responded very effectively to the rather curious intervention of the noble Lord, Lord Borrie. I sought to follow the traditional course, which is to probe and check on such an important area as the need to ensure that court security staff are subject to adequate checks. The Minister has now given me the assurances I sought. Therefore I have pleasure in withdrawing my amendment.

Amendment, by leave, withdrawn.

Lord Swinfen moved Amendment No. 106: Page 22, line 23, at end insert "; and (c) the procedure to be followed by court security stall- in the discharge of their functions

The noble Lord said: My Lords, in moving Amendment No. 106, I shall speak at the same time to Amendment No. 107. Clause 46(2) enables the Lord Chancellor, by regulation, to make provision for court security officers to be properly trained, and to set out the conditions to be met before a person may become a court security officer. Amendment No. 106 would enable the Lord Chancellor, by regulation, to lay down the procedure to be followed by court security staff in the discharge of their functions. This would include their powers of search.

Amendment No. 107, if accepted, would remove from the Bill the limitations on a search included in Clause 47(2). As the House knows, we live in an age of fast-moving and rapidly changing terrorist tactics. As the Bill is drafted, it would require another Act of Parliament to change court security officers' powers of search. That is not something that can usually be done in a hurry, in particular if such a change was needed when Parliament was in Recess.

The two amendments are designed to give the Lord Chancellor much greater and much-needed flexibility in changing the powers of search to meet new conditions as and when they arise. If the amendments are accepted, Amendment No. 107 will override Amendment No. 108, tabled in the name of the Lord Chancellor which, in my view and with great respect, does little to improve the Bill. I commend the amendment to the House. I beg to move.

Lord Bassam of Brighton

My Lords, Clause 46(2) gives the Lord Chancellor a power to make regulations concerning training courses to be completed by court security officers and the conditions to be met before a person may be designated as such. Effective training is a crucial part of effective court security. The regulation-making power will ensure that this is provided for court security officers in England and Wales. In addition, the power to make regulations regarding conditions to be met prior to appointment or designation will ensure that all officers meet a satisfactory minimum acceptable standard of competence, background and qualities.

The amendment of the noble Lord, Lord Swinfen, seeks to give the Lord Chancellor an additional power to make regulations providing for the procedure to be followed by court security staff in the discharge of their functions. The Government fully recognise the importance of ensuring consistency in the procedures followed by court security staff and we are grateful to the noble Lord for raising this important point. However, for several reasons, the Government consider that in this instance regulations are an inappropriate vehicle for dealing with the procedure to be followed by court security officers in the discharge of their functions.

Changes in training and conditions of employment are different from procedural change. The former are matters that evolve steadily, allowing plenty of time for necessary alterations to be identified and for the correct mechanisms to be put in place to facilitate change. Accordingly, these areas are suitable to be dealt with by regulations, particularly as, being subject to the parliamentary process, amending regulations can take time. Conversely, procedural matters often need to be varied rapidly in response to a particular event or situation—for example, a new terrorist threat—and so containing prescribing procedure in regulations is likely to prove inflexible.

Some issues that may fall under the umbrella of "procedural matters" may also be connected with training. As I have said, formulating regulations can be time-consuming and resource intensive, and so the Government are keen to avoid duplication wherever possible.

Publishing the procedure to be followed by court security staff could also compromise security. The public would have access to regulations that could highlight information through which to exploit the system.

The proposed amendment refers to "court security staff' rather than to "court security officers". This is at odds with the remainder of Part 4 of the Bill, which refers throughout to "court security officers".

The Government appreciate the need for clear, defined procedure relating to the discharge of court security officers' powers, which should be implemented uniformly across all courts. However, it is considered that regulations are not the appropriate mechanism for ensuring this. It is preferable for these procedures to be laid down through the production of internal security bulletins and guidance notes. This will be more flexible.

Lord Hunt of Wirral

My Lords, I support my noble friend. I am a little concerned about the Minister's reliance on the time-consuming nature and cost of drafting these regulations. My noble friend stressed the importance of the procedures to be followed. Recent terrorist activity has indicated that the courts could well be targets—the Minister has assured the House in the past that the authorities are aware of this—but a public debate of the procedures to be followed need not touch on secret matters which should be kept from the public. This would enable the House and another place to discuss some of the serious issues arising from the threat now posed to society, and especially to our courts.

6.45 p.m.

Lord Bassam of Brighton

My Lords, the noble Lord makes a perfectly respectable point. No one is suggesting that there should not be other opportunities for such a debate to take place. However, the mechanism suggested by the noble Lord, Lord Swinfen, is time consuming and is not perhaps flexible enough to deal with an urgent situation that may arise from time to time.

Lord Swinfen

My Lords, I realise that the drafting of regulations can take time, but the essence of my argument on both amendments is that the procedure is being laid down in a Bill. It will require an Act of Parliament to pass through both Houses, with three opportunities in this place and two in another place to amend it. Regulations can be drafted fairly quickly and, in some instances, can be brought into effect before their due date.

It may not be appropriate to this debate, but in the past we have dealt with various orders relating to shellfish and shellfish poisoning that were brought into effect on the day that they were laid before Parliament as an important safety measure. We are discussing a safety matter for the public, the court officials, the court staff and anyone attending court.

In Committee I mentioned the long delay in changing the procedure for security in courts. The noble Lord will recall that that is the only point that I have raised on the Bill. In my view, it is extremely unwise to state in a Bill what a security officer may or may not do. We live in a very fast-moving age compared with the days of the spear and the bow and arrow in which the noble Lord seems to be stuck. We live in an age of electronic devices that can set off explosives within split seconds. We need to be a great deal more flexible. I do not believe that the noble Lord is addressing the problem.

Lord Bassam of Brighton

My Lords, in some senses, the noble Lord appears to be agreeing with me. We are seeking to retain that flexibility so that we can be more responsive. That is why we believe it will be preferable for the procedures to be laid down through the production of internal security bulletins and guidance notes. In our view, the latter approach is more flexible than the regulations approach that the noble Lord is recommending. It also avoids the prospect of compromising security—a concern that I believe the noble Lord shares—while ensuring clarity and uniformity of procedure. I invite the noble Lord to reconsider his position on that amendment.

Amendment No. 107 would remove Clause 47(2). The subsection limits a court security officer's power of search by authorising the officer to require the removal of only, a coat, jacket, gloves or hat". This reflects a justified concern, expressed at great length in Committee, to ensure that the security provisions included in the Bill are sufficient to protect court users. We are most grateful to noble Lords for raising this point, not just today but also on previous occasions.

The Government gave an undertaking to consider the wording of the subsection to ensure that it is adequate. This has been done with Amendment No. 108. Although the conclusion remains that subsection (2) should be retained, we have accepted that the wording needs to be changed. The Government consider that the combined "search on entry" measures and procedures that will be in place will be adequate to deal with the level of terrorist threat faced by court premises.

On entering the Royal Courts of Justice and all Crown Court buildings, a person must pass through a metal detection arch. If that is activated, the court security officer will then use a metal detection wand to identify more precisely where the metal is located. Both the metal detection arch and the wand will pick up metallic elements in wires and timing devices, or power sources attached to explosives that may be strapped to the body of a terrorist.

The provisions in the Bill do not prevent a non-intimate physical search in the manner of a frisk by airport security officers if,' for instance, this should prove necessary to identify the nature of an object detected by the wand. Combined with the removal of outer clothes, as permitted under subsection (2), this will be sufficient for court security officers to identify the presence of explosives strapped closely to the body. If a court security officer remains in doubt as to the intentions of a person, he may either exclude the person from the court building or request the presence of a police officer with the powers to conduct a more intimate search. The Government consider that the combination of these factors is sufficient to combat the current level of terrorist threats posed to the courts.

Subsection (2) provides a restriction on the power of search that is akin to restrictions on similar powers in other Acts. Importantly, it reflects the position of court security officers in Northern Ireland, as contained in Section 80(2) of the Justice (Northern Ireland) Act 2002. It should be noted that this Act was passed after the atrocity of 11th September 2001, when terrorism fears were at their height. With this in mind, it would be hard to justify giving court security officers in England and Wales an unfettered power of search that would be substantially wider than that of their Northern Ireland counterparts.

Significantly, the Terrorism Act itself also limits an authorised constable's powers of search in public to requesting the removal of an outer coat, headgear, gloves, jacket and footwear.

As I have mentioned, the Government have tabled an amendment to subsection (2) to widen it to include footwear. Particular account was taken of the comments of the noble Lord, Lord Thomas of Gresford, that subsection (2) is ethnocentric. In recognition of this, it is proposed that the word "hat" be replaced with the term "headgear". It is appreciated that the removal of certain items may be subject to religious guidelines, and guidance will be produced to ensure that situations are handled with the appropriate sensitivity.

We are grateful to those who have raised an important consideration in this debate and appreciate the concerns by which they were prompted.

I think Amendment No. 109 is in this group—no, we have not got there yet. In that case, I think that deals with the amendments that have been raised so far.

Lord Swinfen

My Lords, I think the noble Lord may have been misled by the grouping and has therefore taken the amendments in numerical order rather than in the order of thought. He may have forgotten what was said or perhaps he did not pay sufficient attention to what was said by those on the Liberal Democrat Front Bench and, indeed, behind him. I remember that the noble Lord, Lord Borrie, supported me in Committee.

The Minister has not satisfied me, and I should like to test the opinion of the House.

6.53 p.m.

On Question, Whether the said amendment (No. 106) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 72.

Division No. 5
CONTENTS
Addington, L.	Howe of Aberavon, L.
Alderdice, L.	Hunt of Wirral, L.
Anelay of St Johns, B.	Jenkin of Roding, L.
Astor of Hever, L.	Lester of Herne Hill, L.
Barker, B.	Luke, L.
Blatch, B.	McColl of Dulwich, L.
Buscombe, B.	Marlesford, L.
Cope of Berkeley, L.	Monson, L.
Craigavon, V.	Noakes, B.
Ferrers, E.	O'Cathain, B.
Flather, B.	Rawlings, B.
Fookes, B.	Rees, L.
Goodhart, L.	Roberts of Conwy, L.
Hanningfield, L.	Russell, E.
Harris of Richmond, B.	Sandberg, L.
Howe, E.	Seccombe, B. [Teller]

Sharp of Guildford, B.	Swinfen, L. [Teller]
Shrewsbury, E.	Tordoff, L.
Skelmersdale, L.	Ullswater, V.
Smith of Clifton, L.	Wallace of Saltaire, L.

NOT-CONTENTS
Acton, L.	Goudie, B.
Ahmed, L.	Gould of Potternewton, B.
Alton of Liverpool, L.	Grocott, L. [Teller]
Amos, B.	Harris of Haringey, L.
Andrews, B.	Haskel, L.
Archer of Sandwell, L.	Hayman, B.
Ashton of Upholland, B.	Hollis of Heigham, B.
Bach, L.	Howells of St. Davids, B.
Bassam of Brighton, L. [Teller]	Hughes of Woodside, L.
Bernstein of Craigweil, L.	Irvine of Lairg, L. (Lord Chancellor)
Billingham, B.
Blackstone, B.	King of West Bromwich, L.
Borrie, L.	Kirkhill, L.
Brennan, L.	Lea of Crondall, L.
Brett, L.	Lipsey, L.
Brooke of Alverthorpe, L.	Macdonald of Tradeston, L.
Brookman, L.	MacKenzie of Culkein, L.
Brooks of Tremorfa, L.	Mackenzie of Framwellgate, L.
Burlison, L.	Massey of Darwen, B.
Carter, L.	Mitchell, L.
Clarke of Hampstead, L.	Pitkeathley, B.
Clinton-Davis, L.	Ramsay of Cartvale, B.
Crawley, B.	Rendell of Babergh, B.
Davies of Coity, L.	Rooker, L.
Davies of Oldham, L.	Scotland of Asthal, B.
Dean of Thomton-le-Fylde, B.	Sewel, L.
Desai, L.	Simon, V.
Dormand of Easington, L.	Stone of Blackheath, L.
Dubs, L.	Temple-Morris, L.
Elder, L.	Uddin, B.
Evans of Parkside, L.	Walker of Doncaster, L.
Evans of Temple Guiting, L.	Whitaker, B.
Evans of Watford, L.	Whitty, L.
Falconer of Thoroton, L.	Wilkins, B.
Farrington of Ribbleton, B.	Williams of Mostyn, L. (Lord Privy Seal)
Gale, B.
Gibson of Market Rasen, B.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.3 p.m.

Clause 47 [Powers of search]:

[Amendment No. 107 not moved.]

Lord Bassam of Brighton moved Amendment No. 108: Page 22, line 32, leave out "gloves or hat" and insert "headgear, gloves or footwear

On Question, amendment agreed to.

Lord Hunt of Wirral moved Amendment No. 109: Page 22, line 36, at end insert— (4) Where a court security officer reasonably believes that a more thorough search is required arrangements should be made for this to take place in private.

The noble Lord said: My Lords, we now move to Amendment No. 109 which would insert a provision, where a more thorough search is required, to allow the court security officer to make arrangements for that to take place in private. This debate gives noble Lords the opportunity to review some of the data collection which the Minister has kindly made available. This data covers 68 per cent of the Crown Courts in England and Wales. It discloses that 22,500 items were confiscated during searches which began in May 2002 for the south- eastern, northern and midland regions. That figure is broken down as follows: 85.3 per cent of the items were knives; 14.5 per cent were tools, including items such as screwdrivers; and 0.17 per cent were firearms. It is rather disquieting to realise that the knives ranged from penknives to samurai swords. That reminds us of the dangers that we face from the increasing threat from terrorism as we discuss changes in the security arrangements. I was also concerned to hear from the Minister that anecdotal evidence from courts managers and security guards suggested that incidents requiring a physical intervention were increasing.

I move this amendment to press the Government for reassurance that court security officers will not just conduct a superficial search of those entering court buildings. They should be able to carry out a full search if they believe that it is necessary in the interests of the safety of the court. I beg to move.

Lord Bassam of Brighton

My Lords, we have been over much of the ground discussed by the noble Lord, Lord Hunt, in previous exchanges. We are grateful to the noble Lord for returning to the matter as it enables the Government to make plain the thorough approach which we intend to be adopted by court security services.

The noble Lord's amendment would require that arrangements should be made for "more thorough" and apparently intimate searches to take place in private. It is an entirely proper amendment. I understand the sentiment and strength of feeling behind it. The amendment would give the court security officers a more comprehensive power of search without allowing them to carry out more intimate searches.

But if the amendment proposing the removal of all restrictions on a court security officer's powers of search were to be accepted, the proposed amendment requiring more thorough searches to take place in private would be of some benefit, although, as currently drafted, and particularly if subsection (2) were to be removed, it is unclear how much more thorough the search would be. For the reasons I gave when I addressed Amendment No. 107, the Government consider it appropriate and justified to retain that restriction.

In summary, these reasons are centred on the fact that we consider the present powers to be adequate to deal with the threat that they are designed to address. We also acknowledge the need for the Bill to be consistent with the limitations on similar powers of search in other legislation. Consideration is given to Article 8 of the convention which addresses the right to respect for private life.

With that in mind, the amendment proposing more thorough searches by court security officers is in our view unnecessary as the officers will not have the power to carry out such searches. Where a court security officer considers that a more intimate search is necessary, he or she will have to request the attendance of a police officer who will then carry out that search. We believe that that is a more appropriate way of dealing with the matter although I entirely understand why the noble Lord sought to have the provision put in place.

The noble Lord referred to statistics, some of which I believe that we discussed in Committee. Recent statistics have introduced a more in-depth analysis of the knives that were discovered. Nearly all were small knives under three inches; that is, penknives or similar, and would have been immediately detected by the metal detection equipment. We are confident that the security arches that we have in place and, no doubt, the wonderful waving wands, will do the job. We are very mindful of the threats that even such small weapons could pose to staff, members of the public and members of the judiciary. We take the issue seriously, and think that we have the balance of measures and the technology right. However, we will review the matter from time to time and monitor it very carefully.

Lord Hunt of Wirral

My Lords, I am grateful to the Minister for his understanding, and am very pleased to hear that steps are being taken to refine the figures. I understand that it is now a requirement that all the regions collect the information to which we have referred, which is very reassuring. I am also grateful to him for clarifying the way in which the more detailed searches will be carried out. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Hunt of Wirral moved Amendment No. 110: Page 23, line 17, at end insert— ( ) The Lord Chancellor shall ensure that sufficient resources are allocated in order to discharge the functions in subsections (2) and (3).

The noble Lord said: My Lords, nowhere in the Bill can I find a commitment from the noble and learned Lord the Lord Chancellor that he will provide adequate resources to enable security officers to carry out their duty. That is why I tabled the amendment. I beg to move.

Baroness Scotland of Asthal

My Lords, the noble Lord proposes a clearly understandable addition to the Bill requiring the Lord Chancellor to ensure that sufficient resources are allocated for a court security officer to carry out his powers of exclusion, removal or restraint under Clause 48. However, it should be borne in mind that my noble and learned friend the Lord Chancellor is committed to improving court security and, even without significant additional funding or other resources, the Bill will do that. The provisions will provide court security officers in all courts with significant, effective and uniform powers, and also extensive training to enable them to exercise their powers safely, efficiently and lawfully.

It is anticipated that the number of court security officers in place will remain at least the same after the implementation of the Bill. Funding is available to develop the necessary training programmes, guidance notes and other matters that need to be in place prior to the start-up of the new system. That will ensure that the new security provisions will be more effective even without funding for additional court security officers. From that point of view, I respectfully suggest that the amendment is unnecessary. I am afraid that it is practically unworkable. I am glad to see that the noble Lord is content for me to dispense with explaining why.

Of course, the Government accept that funding is the key to the pace and scope of improvement in security in the courts. However, security remains high on the agenda of my noble and learned friend the Lord Chancellor, and the importance of planning for improvement remains. I thank the noble Lord and the noble Baroness for raising the important point but, for the reasons that I have given, the amendment is inappropriate for inclusion in the Bill. I therefore invite him to withdraw it.

Lord Hunt of Wirral

My Lords, I accept the noble Baroness's invitation. I am grateful to her for the reassurances that she has given, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Functions of inspectors]:

Baroness Anelay of St Johns moved Amendment No. 111: Page 25, line 18, at end insert "including information technology services

The noble Baroness said: My Lords, the amendment would ensure that one of the functions of the inspectors of court administration would be to inspect and report to the Lord Chancellor on IT systems.

Information technology systems are becoming increasingly important throughout the justice world. They are already vital to the business world, but justice is catching up. They are important for the smooth and efficient running of the court system, and provide an effective way of ensuring that information is stored correctly and available when needed. When the fines system is set up, the matter will be even more important, as it will be one not only of sharing information on cases as they go through, but of tracking. In this modern age, it is essential to have an up-to-date and cost-effective IT system throughout the Lord Chancellor's Department, so that information can be shared electronically with other courts, and to enable the transfer of electronic information to other enforcement agencies.

Earlier, the Minister explained the Government's thoughts as regards extending penalties in relation to fines, and she referred to benefit payments. The Benefits Agency, very early on, went through a rather painful but ultimately successful exercise in transferring its information systems to IT. Its system is up and ready and it is important that the system in the Lord Chancellor's Department—if it is to interact with the agency on fines collection enforcement—should be compliant.

We on these Benches believe that it is necessary for the inspectors to monitor such an essential system, particularly in the light of the current IT systems failures within the Lord Chancellor's Department. I referred to the matter in relation to a different kind of amendment in Committee.

The system which is currently in place and would have to be monitored was set up under the private finance initiative with ICL—now known as Fujitsu Services—is called "Libra". The project has already cost the taxpayer twice the estimated cost. It is now costing about £390 million.

I raised a rather different amendment in Committee. Since my remarks about IT then, the National Audit Office has issued its report, New IT systems for Magistrates' Courts: the Libra project, which I have in front of me. The report concludes that, despite 20 years of throwing money at courts—I recognise that this goes back beyond 1997 but it must be said that that report seems to apportion blame on this occasion only post-1997—there is still no working system of IT within them and that the Lord Chancellor's Department has made "some truly basic mistakes".

We understand that it is extremely difficult to set up IT systems in any event, but particularly within the justice system; and it is costly. It is vital, therefore, that we should be assured that, in future, it will be the task of the inspector within the unified courts administration, as part of his or her job, not only to report on the setting up of these systems and on their implementation and effectiveness, but to make recommendations as to how they might be better developed in the future.

I hope that the Minister will be able to give assurances about the role of the inspector under the new UCA and an indication of the Government's response to the report by the National Audit Office. I do not expect her to give a detailed response, but to say how the Government have taken the report into account in drafting the Bill and in terms of how its provisions will be taken forward. I beg to move.

7.15 p.m.

Baroness Scotland of Asthal

My Lords, as always, I have listened with great interest to the arguments advanced by the noble Baroness in support of the amendment. However, I believe that it is unnecessary.

Noble Lords will undoubtedly recall that during the debate on 20th January on Amendment No. 3 (at cols. 532–536 of the Official Report) I explained that "services" included information technology services, and an amendment identical to this one standing in the names of the noble Lord, Lord Kingsland, and the noble Baroness, Lady Seccombe, was subsequently withdrawn.

Clause 54 places a duty on the inspectors to inspect and report to my noble and learned friend the Lord Chancellor on the system that supports the carrying on of the business of those courts listed in Clause 54(2)—currently, the Crown Court, county courts and magistrates' courts—and the service provided for those same courts. Those services include, among others, information technology, security and catering. The noble Baroness rightly said that information technology is playing an increasing role in the operation of courts. One example is that of video conferencing, which I hope will mean that increasingly we can make real progress without having to transfer prisoners inappropriately backwards and forwards.

It is our intention that all of those services, including information technology services, will be subject to inspection. I therefore hope that the noble Baroness feels that her amendment is not necessary and that she will withdraw it.

Baroness Anelay of St Johns

My Lords, I am grateful to the Minister for her response and her assurances that the inspector of court administration will indeed report on IT services. I took from her remarks a caution for myself: I shall not send her some of my more well-meaning arrangements about withdrawing amendments in future. I shall have to consider the implications of that. Her reference to the fact that a similar amendment in Committee, which stood in the names of my noble friends Lord Kingsland and Lady Seccombe, who is in her place, had been withdrawn rather implied that it had been withdrawn because we were satisfied with the answer that was given to Amendments Nos. 3 and 15. I believe that Amendment No. 15 was grouped with Amendment No. 3 on that occasion. That was not the case. We withdrew that amendment because the Chief Whip, the noble Lord, Lord Grocott, had become increasingly exercised about the time that we were taking that evening. In a spirit of good humour I offered to withdraw the amendment. Gosh, I must think about that in future!

Baroness Scotland of Asthal

My Lords, I do not want to discourage the noble Baroness from so doing but usually she kindly indicates when she will return to an amendment that she is withdrawing. I rather thought that that amendment had been withdrawn in that spirit. If I misunderstood her, I withdraw any such comments; I should hate to discourage her from continuing along her happy path in terms of the way in which we co-operate on this and other Bills.

Baroness Anelay of St Johns

My Lords, our happy paths will continue, not necessarily in parallel lines or even overlapping; but we will carry on our merry way. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 [Rights of entry and inspection]:

Lord Bassam of Brighton moved Amendments Nos. 112 and 113: Page 26, line 15, leave out "arrangements made by the Lord Chancellor under" and insert "a contract made by the Lord Chancellor by virtue of Page 26, line 20, leave out "arrangements made by the Lord Chancellor under" and insert "a contract made by the Lord Chancellor by virtue of'

On Question, amendments agreed to.

Clause 59 [Power to alter judicial titles]:

Lord Bassam of Brighton moved Amendment No. 114: Page 28, line 28, leave out "or repealing any enactment (whenever passed)" and insert ", repealing or revoking any enactment

On Question, amendment agreed to.

Schedule 4 [Further functions conferred on District Judges (Magistrates' Courts)]:

Lord Bassam of Brighton moved Amendment No. 115: Page 70, line 33, leave out "sitting as a judge of the Crown Court

The noble Lord said: My Lords, this and the next two minor amendments make minor changes to statutory references to the functions in Schedule 4. They are all technical amendments and delete unnecessary words, which I am sure will delight noble Lords. They also clarify the drafting and make the legislation easier to follow. That is an unarguable case. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 116 and 117: Page 71, line 7, at end insert—

""Interpretation"

Page 71, line 17, leave out paragraph 9 and insert—

"9 In Schedule 5 (terrorist investigations: information)—

1. (a) in paragraphs 5(1) and (5), 6(1), 10(1), 11(1), 12(1) and (2) and 13(1), after "Circuit judge" insert "or a District Judge (Magistrates' Courts)", and
2. (b) in paragraphs 5(4)(a) and 7(1)(b), after "Circuit judge" insert "or the District Judge (Magistrates' Courts)"."

On Question, amendments agreed to.

Lord Bassam of Brighton

My Lords, I beg to move that consideration on Report be now adjourned.

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