Courts Bill [H.L.]

HL Deb 19 May 2003 vol 648 cc498-548

3.8 p.m.

Read a third time.

Clause 4 [Establishment of courts boards]:

Baroness Anelay of St Johns

moved Amendment No. 1: Page 3, line 23, at beginning insert "Subject to subsection (6A),

The noble Baroness said: My Lords, Amendment No. 1 is a paving amendment for Amendment No. 3 and therefore consequential upon it. The amendments stand not only in my name but in that of the noble Lord, Lord Goodhart.

The objective of the amendment is to ensure that the courts boards are local in their extent and effect. That is vital to maintain the local nature of the delivery of justice within the new centralised, unified courts administration created by the Bill.

On Report, we accepted the Government's redrafted Clauses 4 and 5, but only with great regret and for the reasons that I gave then, at cols. 1187 to 1191. I am aware that all magistrates, including those represented by the Magistrates' Association and those represented by the Central Council of Magistrates' Courts Committees, would have preferred as their first choice local bodies with full executive powers, if that had been both legally and practically possible. However, that was not to be. So we accepted the Government's new clauses, but only on the basis, as I said at Report, that significant changes needed to be made to improve them.

One of those changes will be achieved by the amendment. When I moved a similar one at Report the Minister's response made me realise that I had not properly addressed the definition of the police areas with regard to London. I therefore withdrew it so that it could be redrafted to overcome that problem. That has now been done with the help of the Public Bill Office and of the Central Council of Magistrates' Courts Committees. The latter supports the amendment, as does the Magistrates' Association. I anticipate, however, that support goes much wider. The evidence is to be found in the Government's own interim report on the feedback from regional discussion groups on the proposed unified courts administration. Paragraph 6.2 of the report states: All the groups have given a clear message that the 42 criminal justice areas form a sound and sensible building block for the new organisation, although consideration needs to be given to the arrangements for London. It has been acknowledged that civil and family work is not driven by the 42 configuration, but delegates generally thought that it could be made to work so long as boundaries arc flexible and the ability to transfer work across boundaries was retained.

I agree entirely. That is the position the amendment achieves—a focus on 42 areas, plus London; consideration of the position of London separately; and flexibility overall for the boundaries to be different where appropriate. In addition the Government solved the issue of the transfer of work across boundaries by one their own amendments to Clause 25 on Report.

The noble Lord, Lord Goodhart, at that stage indicated that the noble Lord, Lord Thomas of Gresford, believed, that there is some pressure for a single courts board to cover the whole of Wales",—[Official Report, 8/5/03: col. 1197.]

perhaps including Cheshire as well to maintain an area based on the old Wales and Chester circuit. The noble Lord acknowledged that my amendment was so flexible that it would allow that to happen if a merger were the wish of the people involved in the area. That is the clear advantage of the amendment. It is not prescriptive. It is flexible to meet the needs of different areas. It states that the Lord Chancellor shall have regard to the desirability of ensuring that the areas should be coterminous with the police areas. It does not force him to adopt them where it would be inappropriate. I am being reason itself.

The Minister, the noble Baroness, Lady Scotland, has acknowledged that the Government want the police areas to be the building blocks of the new courts boards system. However, so far she has resisted my amendment on the basis that it puts too much emphasis on those same police areas. That is precisely where we disagree and where I agree instead with all those people across the country who were consulted by the Government. I believe that police areas form an effective, efficient and clearly understood basis for the first allocation of boundaries for the courts boards provided there is the flexibility I have built into the amendment. I beg to move.

Lord Goodhart

My Lords, as the noble Baroness said, my name appears on the amendment as well as hers. I shall be brief because this is Third Reading and there is another important Bill to come. I agree that it is desirable that the initial order dividing the country into areas should create areas coterminous with those of the existing magistrates' courts areas. That would avoid too much disruption. It would be most unfortunate if we coupled at the same time the introduction of the transfer of the administration from the magistrates' courts committees to the courts agency with a major geographical reorganisation of the bases on which the local areas are defined.

In those circumstances we hope that the Government will be able to accept the amendment. We recognise that it is not and should not be mandatory in form, because, as the noble Baroness said, my noble friend Lord Thomas of Gresford has indicated that there is some pressure in Wales. That is based particularly on the Crown Courts rather than the magistrates' courts for unification of Wales and possibly Chester into a single area. Having said that, I hope that the Government will accept the amendment.

3.15 p.m.

Lord Renton

My Lords, I too support the amendment but for slightly different reasons from those put forward strongly by my noble friend Lady Anelay and the noble Lord, Lord Goodhart. It must be remembered that the police have always brought most cases to the magistrates' courts and to the courts in London. That is why so often those courts have for years been described as "police courts"—rightly or wrongly. We should bear that in mind and it is important that it should continue; first, to simplify administration; secondly, to maintain continuity, which is worth maintaining; and, thirdly, to preserve the police sense of responsibility for their part in the administration of justice.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Anelay, the noble Lord, Lord Goodhart, and the noble Lord, Lord Renton, for their contributions. We have had an opportunity to discuss the issue on a number of occasions. I note that the noble Baroness tabled her amendment as an amendment to new Clause 4, requiring the Lord Chancellor to "have regard to" to the desirability of coterminosity with the police areas, specifying the courts boards boundaries under Clause 4(2). I understand the breadth of the amendment.

We do not object in principle to the idea that the Lord Chancellor must bear in mind the structure of other criminal justice agencies in specifying the areas for the courts boards. Indeed, as the noble Baroness said, we have already said that the 42 criminal justice areas will be the building blocks of the courts boards areas. But there are many other factors which must be taken into account—an effective fit with other agencies in the civil and family jurisdictions, the needs and nature of local communities, the volume of workload in each area, and the distribution of court houses.

The noble Baroness is right to say that participants in discussion groups emphasised the need to take into account the needs of different parts of the country. I think the point made on the last occasion was not that Wales needed to be one unit but that it might be necessary for north Wales and Chester, because of their historic link and the importance of the way in which the courts work in that area, to remain a unit. South Wales perhaps would be a separate unit. Those are factors that have to be borne in mind. Wales and London in particular, where the criminal justice areas were not felt to be the overriding factor, are matters for our consideration. The participants in the group recognised that the 42 areas were of no relevance in civil and family business and that a flexible approach was therefore needed.

The implication of the amendment is that the link to the 42 areas is the single most important factor and an end in itself. It is not. I had hoped that we had clearly established that as we dealt with the Bill. The single most important factor is that the structure chosen must support the effective and efficient administration of the courts. It must enable us to deliver a better service. That must be the overriding criterion. The amendment demonstrates an admirable understanding of the criminal justice system structures. However, I repeat what I have said many times previously. These reforms are not just about criminal justice.

At Report, the noble Baroness said that she intended to reconsider her amendments in discussion with the Magistrates' Association and the Central Council of Magistrates' Courts Committees. I am pleased that she has done so. Indeed, my colleague Yvette Cooper also has had a number of meetings with those groups during the development of these provisions. I am disappointed, however, that the net has not been cast a little wider. These amendments do not affect just the magistracy—the reforms affect the professional judiciary, some of whom work in the magistrates' courts; the unions who represent staff of both services; the Bar and the Law Society, who represent clients in all the jurisdictions; the numerous advice and support agencies who operate in the family arena; and the range of users of the civil courts, from large-scale businesses to individuals bringing forward small claims.

Lord Clinton-Davis

My Lords, my noble friend has used the word "flexible". However well intentioned, the one thing that this amendment is not is sufficiently flexible. Having regard to that, does she agree that when we have a new system, the Lord Chancellor should be given the right to be much more flexible than usual, albeit within constraints? This provision has also settled the constraints.

Baroness Scotland of Asthal

My Lords, my noble friend is right. The noble Baroness says 42, but she accepts that we may need to change the boundaries to reflect the needs of North Wales, Chester and London. I believe that she would respond that that is why she has put the amendment in terms of the Lord Chancellor having "regard to the desirability". I accept that that is how she puts it, but I also agree with my noble friend that it creates a degree of rigidity.

To properly design an organisation fit to run the unified administration, the Government are talking to representatives of all those groups. With the greatest respect, it seems that the noble Baroness is not doing so. She seems to be receiving a very one-sided view, that represented by the magistracy.

Lord Phillips of Sudbury

My Lords, surely the noble Baroness, Lady Anelay, dealt with that last point by referring to the consultations that are under way across the country. Is it not fair to say that they lean strongly in favour of the amendment?

Baroness Scotland of Asthal

My Lords, I do not think that it is right to say that. The research agrees with us that although the 42 criminal justice areas will be the building blocks, there has to be flexibility. The family and other jurisdictions do not respond to the 42 CJAs. Geographical areas such as North Wales, Chester and London, for example, may also have special needs on which we need to reflect and in relation to which we need to be flexible. That is what we are doing.

I should like to pick up a point which the noble Lord made when we last debated this issue. There is almost a tendency to suggest that magistrates' courts do the majority of the work in the system. Although I would be the first to give total credence to the good work that the magistracy does, that tendency distorts the true position. In 2001, more than 1.7 million claims were issued in the High Court and county courts a sizeable and important chunk of work which needs to be administered, but much of which does not go near the court room. In the Court Service there were 151,722 sitting days on civil and family work. In the same year there were 112,012 private law applications in family matters, 86,601 of which were made in the High Court or county courts compared with 25,411 in the family proceedings courts. In the same year there were 87,688 sitting days in the Crown Court and 1,153,865 sitting hours in the magistrates' courts. A huge volume of work is done by our courts, but we need to consider them together and not separately.

Lord Phillips of Sudbury

My Lords, the Minister is being provocative in stringing out these many undigested statistics—the last two of which I think are crucial, on Crown Court sitting days and county court sitting days as against—

Baroness David

My Lords, is this in order on Third Reading?

Lord Phillips of Sudbury

If it is not, my Lords, I shall not persist. I have made my point in any event.

Baroness Scotland of Asthal

My Lords, I was trying to demonstrate that the work of the civil and family jurisdictions is significant in terms of workload and in terms of the issues at stake. The new administration must equally support the needs of that business. I know that some members of the judiciary are very concerned that the civil and family courts will be shoehorned into a structure designed only with the interests of criminal business in mind. We have all, I think, recognised that that would be a mistake. This amendment sends entirely the wrong message to them and to stakeholders and users of those courts. They are all of equal importance, even if they do not appear to have had a similar number of champions to voice their cause in this House.

We seek parity of treatment. We have given the assurance that the 42 areas will be the building blocks, but we will want to see flexibility. I reassure the noble Baroness that the Lord Chancellor really will take these issues into account in determining that. I assure her that when we have culled the information we need to come to a final conclusion, this matter will come back before the House and the House will have an opportunity to debate it. The affirmative resolution procedure will be the one adopted and the House will have its say on the final design.

All those amendments were made to enable us to do what I genuinely believe the noble Baroness wants us to do—to devise a system that is really fit for purpose, which will not only meet the needs of the criminal justice system and honour the structure that has been in place, but support and enable the civil jurisdiction in family and other issues to have their work dealt with properly. We do not think, with the greatest respect, that Amendment No. 1 assists us to do that. It is not necessary. I hope that the noble Baroness will accept what we say and be reassured that this is very much what we intend to do.

Baroness Anelay of St Johns

My Lords, I am grateful to the noble Lord, Lord Goodhart, and to my noble friend Lord Renton for their support for this amendment. I listened very carefully to the Minister's response and to the intervention by the noble Lord, Lord Clinton-Davis, but I am not reassured. The Minister said that although the Government do not object in principle, there are other factors which they must properly take into account. I agree with her. That is why my amendment seeks to be flexible.

The Minister says that the police areas are not the single greatest factor and that one has to look overall at efficient and effective delivery, for something that is fit for purpose. That is also what I am trying to achieve. However, I am trying to achieve that without creating a temptation for a Lord Chancellor—not this Lord Chancellor, as I always say, but a future incumbent—who believes that, in a centralised system, efficiency can be best driven by perhaps just a handful of areas rather than local areas.

The Minister takes me to task and says that I should have cast my net wider to obtain views on my amendments. I started casting my net—fisherman I am not, but I did my best—from the day that the Bill started its passage in your Lordships' House more than five months ago, on 9th December. Seldom has a Bill taken so long to make progress through your Lordships' House. In that time, I have not received one telephone message, letter or e-mail objecting to Amendment No. 1. I really have tried to gain as many views as possible. In his interjection, the noble Lord, Lord Clinton-Davis, said that he thought that 1 was not being flexible enough. If I were any more flexible I would come apart at the seams. This amendment is so reasonable.

We have to remember that the Government are taking into the embrace of a unified courts administration the whole magistrates' courts system. Although it is, as the Minister says, just one part, it is important that the whole reflects the needs of all parts. I agree with that. That is why we should insert into this Bill a reminder that when the courts boards are set up to deliver justice, we should keep them local wherever it is possible and appropriate to do so. On that basis, I seek the opinion of the House on Amendment No. 1, which is a paving amendment for Amendment No. 3.

3.30 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 136; Not-Contents, 115.

Division No. 1
CONTENTS
Aberdare, L.	Forsyth of Drumlean, L.
Ackner, L.	Fowler, L.
Addington, L.	Freeman, L.
Ampthill, L.	Gardner of Parkes, B.
Anelay of St Johns, B.	Gilmour of Craigmillar. L.
Astor, V.	Goodhart, L. [Teller]
Astor of Hever, L.	Goschen, V.
Avebury, L.	Gray of Contin, L.
Baker of Dorking, L.	Hamwee, B.
Barker, B.	Hanham, B.
Beaumont of Whitley, L.	Hayhoe, L.
Blatch, B.	Henley. L.
Bowness, L.	Higgins, L.
Bradshaw, L.	Holme of Cheltenham, L.
Brittan of Spennithorne, L.	Home, E.
Brougham and Vaux, L.	Howe, E.
Burnham, L.	Howe of Aberavon, L.
Buscombe, B.	Howe of Idlicote, B.
Byford, B.	Howell of Guildford, L.
Caithness, E.	Hunt of Wirral, L.
Carlisle of Bucklow, L.	Jacobs, L.
Carnegy of Lour, B.	Jenkin of Roping, L.
Chadlington, L.	Jopling, L.
Chalfont, L.	Kimball, L.
Chalker of Wallasey, B.	Knight of Collingtree, B.
Clement-Jones, L.	Laing of Dunphail, L.
Cockfield, L.	Lamont of Lerwick, L.
Cope of Berkeley, L. [Teller]	Lane of Horsell, L.
Cuckney, L.	Luke, L.
Denham, L.	Lyell, L.
Dixon-Smith, L.	McColl of Dulwich, L.
Elles, B.	MacGregor of Pulham Market L.
Elliott of Morpeth, L.
Ezra, L.	Mackay of Clashfern, L.
Falkland, V.	Mackie of Benshie. L.
Fearn, L.
Fookes, B.

Maclennan of Rogan, L.	Roberts of Conwy, L.
McNally, L.	Rodgers of Quarry Bank, L.
Maddock, B.	Roper, L.
Mar and Kellie, E.	Russell, E.
Marlesford, L.	Saatchi, L.
Mayhew of Twysden, L.	Saltoun of Abernethy, Ly.
Methuen, L.	Sandberg, L.
Miller of Chilthorne Domer, B.	Scott of Needham Market, B.
Monro of Langholm, L.	Seccombe, B.
Mowbray and Stourton, L.	Selsdon, L.
Murton of Lindisfarne, L.	Sharp of Guildford, B.
Newby, L.	Sharples, B.
Northover, B.	Sheppard of Didgemere, L.
Norton of Louth, L.	Skelmersdale, L.
Oakeshott of Seagrove Bay, L.	Smith of Clifton, L.
O'Cathain, B.	Stevens of Ludgate, L.
Onslow, E.	Stewartby, L.
Oppenheim-Barnes, B.	Stoddart of Swindon, L.
Park of Monmouth. B.	Strathclyde, L.
Patten, L.	Swinfen, L.
Pearson of Rannoch, L.	Taveme, L.
Perry of Southwark, B.	Taylor of Warwick, L.
Phillips of Sudbury, L.	Thatcher, B.
Platt of Writtle, B.	Thomas of Walliswood, B.
Plumb, L.	Thomson of Monifieth, L.
Pym, L.	Tordoff, L.
Rawlings. B.	Trefgarne, L.
Razzall, L.	Trumpington, B.
Reay, L.	Vivian, L.
Redesdale, L.	Wakeham, L.
Rennard, L.	Walmsley, B.
Renton, L.	Wilcox, B.
	Windlesham, L.

NOT-CONTENTS
Acton, L.	Falconer of Thoroton, L.
Ahmed, L.	Faulkner of Worcester, L.
Allenby of Megiddo, V.	Filkin, L.
Alli, L.	Fyfe of Fairfield, L.
Alton of Liverpool, L.	Gibson of Market Rasen. B.
Andrews, B.	Golding, B.
Archer of Sandwell, L.	Goldsmith, L.
Ashton of Upholland. B.	Gould of Potternewton, B.
Bach, L. Barnett, L.	Graham of Edmonton, L.
Bassam of Brighton, L. [Teller]	Grocott, L. [Teller]
Berkeley, L.	Harrison, L.
Bernstein of Craigweil, L.	Haskel, L.
Blackstone, B.	Hayman, B.
Borrie, L.	Hogg of Cumbernauld, L.
Bragg, L.	Hollis of Heigham, B.
Brightman, L.	Howells of St. Davids, B.
Brooke of Alverthorpe. L.	Hughes of Woodside, L.
Brookman. L.	Jeger, B.
Bruce of Donington, L.	Jones, L.
Campbell-Savours, L.	Jordan, L.
Carter, L.	King of West Bromwich, L.
Christopher, L.	Layard, L.
Clarke of Hampstead, L.	Levy, L.
Clinton-Davis, L.	Lipsey, L.
Cohen of Pimlico, B.	Macdonald of Tradeston, L.
Colville of Culross, V.	McIntosh of Haringey, L.
Corbett of Castle Vale, L.	McIntosh of Hudnall, B.
Crawley, B.	Mackenzie of Framwellgate, L.
Darcy de Knayth, B.	Marsh, L.
David. B.	Mason of Barnsley, L.
Davies of Coity, L.	Massey of Darwen, B.
Desai, L.	Merlyn-Rees, L.
Dixon, L.	Mitchell, L.
Donoughue, L.	Morgan of Huyton, B.
Dormand of Easington, L.	Morris of Aberavon, L.
Dubs, L.	Morris of Manchester, L.
Elder, L.	Nicol, B.
Erroll. E.	Orme, L.
Evans of Temple Guiting, L.

Palmer, L.	Slim, V.
Patel of Blackburn, L.	Smith of Leigh. L.
Pendry, L.	Strabolgi, L.
Peston, L.	Strange, B.
Pitkeathley, B.	Symons of Vernham Dean, B.
Plant of Highfield, L.	Taylor of Blackburn, L.
Ponsonby of Shulbrede, L.	Temple-Morris, L.
Prys-Davies, L.	Thornton, B.
Puttnam, L.	Tomlinson, L.
Ramsay of Cartvale, B.	Turner of Camden, B.
Rendell of Babergh, B.	Uddin, B.
Richard, L.	Varley, L.
Rooker, L.	Weatherill, L.
St. John of Bletso, L.	Whitaker, B.
Sawyer, L.	Whitty, L.
Scotland of Asthal, B.	Williams of Elvel, L.
Sheldon, L.	Williamson of Horton, L.
Simon, V.	Winston, L.
	Woolmer of Leeds. L.

Resolved in the affirmative, and amendment agreed to accordingly.

3.41 p.m.

Baroness Anelay of St Johns

moved Amendment No. 2: Page 3, line 23, at end insert— (2A) Before the Lord Chancellor specifies areas by an order under subsection (2) he shall consult the chairman and deputy chairman of lay justices in all local justice areas in England and Wales.

The noble Baroness said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 7.

As I mentioned when we were discussing the previous group of amendments, the Lord Chancellor's Department has carried out a consultation on courts boards at regional meetings this year. With this group of amendments, we are looking forward to the future. We are asking the Government to clarify some of the remaining uncertainties about how they expect consultation to continue about their plans for the unified courts administration. One assumes that the Government will already be in the process of putting pen to paper to work out how they will carry forward the plans, once the Bill has passed through both Houses.

The nub of the question is quite simple: what is the system of communication—I shall say it again, now that I have the noble Baroness's attention—the system of communication that the Lord Chancellor's Department will set up between the department and magistrates to take forward the consultation process? Bearing particularly in mind the points properly made by the Minister about the previous group, what system of communication will exist between the Government—the Lord Chancellor's Department—and other parts of the judiciary to carry out the same process?

I was prompted to put down the amendments for two reasons. First, there was the letter of concern that I received from a Bench chairman on the matter of future consultation. I have received a lot of letters, but the one that struck me particularly was from Mr I. C. Clark, chairman of North Sefton Bench in Merseyside. I have his permission to quote from his letter, in which he summarises clearly the views that I have received from all over the country. He said: Having only just begun to recover from the problems of the last reorganisation. many magistrates are feeling disillusioned and disaffected by what we fear will be a further series of remotely imposed changes, and, whilst we applaud the purposes behind them, we fear the problems we shall face in implementing them".

Mr Clark says that a statement clearly defining a process of consultation based on Bench structures over local justice areas and then over the courts board areas will go a long way towards allaying those fears. He hopes that, ideally, a document alongside the Bill will set out the means and the timetable by which the discussions will take place. That is what I am trying to get at. What are the mechanisms by which the Government will consult the Benches and the Magistrates' Association? Whom will they consult and how will they do it?

The second reason why I tabled the amendments was that I noted that the Government had already put on record their plans to consult the Justices' Clerks' Society—rightly so. It is important that they should also put on the record today their plans to consult magistrates. Noble Lords may have seen the speech by the noble and learned Lord the Lord Chancellor, which is on the Home Office—I mean the Lord Chancellor's Department website. The noble and learned Lord has not yet taken over the Home Office; I tried to expand his empire in one fell swoop there. I hope that he will excuse me—at least, I hope that Mr David Blunkett will excuse me.

At the annual conference on 9th May, the noble and learned Lord the Lord Chancellor said that a series of regional discussion groups had taken place. He went on to look at the future and said that justices' clerks had been invited to he represented on the unified administration judicial committee, chaired by Lord Justice Judge. He went on to say: I welcome this co-operation. You"—

justices' clerks— are at the front; your insight into how the magistrates' courts work in practice is second to none; and your input into how they might work better in future is essential".

In that case, I invite the Minister to put on the record the role that the Government see for the magistrates and other judges in the process of consultation on the development of the unified system. I beg to move.

3.45 p.m.

Lord Phillips of Sudbury

My Lords, I do not know why the name of the noble Baroness, Lady Anelay of St Johns, is in lonely eminence on the Marshalled List for the amendments. On these Benches, we wholly support them, for the reasons that she stipulated.

The only point that I shall add to what was so clearly said is that, in Clause 17, there is provision for the election of Bench chairs and deputy chairs. The Bill formally recognises their importance. It is worth reminding the House that, with the abolition of the magistrates' courts committees, which included a justice of the peace elected by justices in the area concerned, there will be no elected position, other than Bench chairs and deputy chairs. Clause 18 prescribes the only role, so far—without the amendments—namely, that of presiding at sessions where they are present.

I wholly concur with what was said about the importance of the role of the Bench chairs. Under the new aegis and given the fact that the new courts boards are—rightly—comprised of many other interested parties, it would go a long way towards assuaging the anxiety that exists among justices of the peace that, whatever the Government intend, their role is being inadvertently undermined and their status reduced. For those additional reasons, the amendments arc worthy of the Government's support and would reinforce what the Government say about the Bill and the role of justices.

Lord Clinton-Davis

My Lords, the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Phillips of Sudbury, have refused to consider the other parts of Clause 5. In that connection, my noble and learned friend the Lord Chancellor is providing for proper consultation with the boards. How can that be improved? Neither speaker said anything about that.

It is important, as we approach the issue anew, that the Lord Chancellor is not bound by any rigid proposals. My noble friend the Minister is considering the issue of flexibility. That is all-important.

Baroness Scotland of Asthal

My Lords, I thank the noble Baroness, Lady Anelay of St Johns, for what she said on the matter. I take from the totality of her contribution that the amendment was tabled as a probing amendment, to discover what we intend. Therefore, I shall try to give a more comprehensive answer, so that the House can receive what I hope will be better information.

The amendment to Clause 4 would require the Lord Chancellor to consult all chairmen of local justice areas and their deputies before making an order specifying the courts boards areas under subsection (2). The noble Baroness has tabled an amendment to Clause 5 that would require the Lord Chancellor to consult all Bench chairmen and their deputies, in preparing the guidance for the courts boards.

Clause 21, which was the result of an amendment tabled by the Government and accepted by the House on Report, already provides that the Lord Chancellor will, take all reasonable and practicable steps to ascertain the views of magistrates about matters that affect them in the performance of their duties in the local justice area. That would include taking steps to ascertain the views of magistrates about proposals to change their local courts board area. We have said that we will draw up draft guidance in consultation with all of our stakeholders. We will do so, not favouring one group over another, but listening to all of their concerns, taking into account all of their knowledge and experience, to develop something that will meet our objectives. 'There is no reason for Bench chairmen to have a particular status above judges, court staff, community representatives or professional court users, all of whom have a stake in the courts.

The 10 regional discussion groups, the last of which will be held tomorrow, Tuesday 20th May, in Bath, have been very productive. There has been consensus around a number of issues, some of which have already been touched on in that a unified administration is the way forward; that customer service is paramount; that one size will not fit all in designing the courts boards and area structure; and that there must be flexibility to move resources and work to respond to fluctuations in demand. There is also a clear message emerging, as we have already said as regards the other groups, that 42 criminal justice areas should be the building block for the new organisation and that, at least initially, the number of boards should follow suit, although the particular needs of London and Wales need to be looked at closely.

There has also been recognition from all stakeholders that the organisational design needs to support all of the courts' business, civil, family and criminal. The discussion groups have provided us with a vast amount of information about the needs of different areas and different jurisdictions. They have given us an opportunity to hear from our customers what they expect from the unified administration. All of this information is invaluable to us as the design process continues.

The groups have also provided a useful forum for staff and stakeholders in the Court Service and the magistrates' courts service to learn more about each other's organisations and to discuss their expectations and concerns about the unified administration.

The noble Baroness asked specifically about the system of communication between the department and magistrates on the development process. Following the discussion groups, we are holding meetings with national bodies like the AJCE and the CCMCC, the senior judges and the Magistrates' Association. We are holding a conference for Bench chairmen on 4th June. We have issued three editions of a news bulletin, which is made available to all magistrates and staff. The CCMCC, the senior presiding judge and the AJCE continue to sit on the programme board, which oversees all work on this programme. We hope that that will be an effective way forward. We will also hold further meetings around the country to work out the detail and the structure. We have already touched on the particular issue of North Wales, Chester and London. We shall have to do a little more work on that. We shall obviously seek to bring magistrates and the Court Service staff together again so that they have an opportunity to give added value to that work.

A total of 302 delegates have attended the first nine events. Of the attendees 40 per cent represented the magistrates' courts community. We invited the magistrates' court committee chair and one Bench chairman to each event, and invited the Magistrates' Association to nominate a local representative. Twenty-one per cent were from the Court Service, 14 per cent from the professional judiciary and 25 per stakeholders. Overall, this provided a sample of the main players from the key organisations that will be affected by unifying the courts administration. Participants have included local representatives of the judiciary and the magistracy, justices' chief executives, Court Service managers, the Crown Prosecution Service, the Probation Service, police, victim and witness support organisations, the Law Society, the Bar, the Children and Family Court Advisory and Support Service, the Civil Court Users Association and Citizens Advice. All the participants are being encouraged to pass information to their colleagues and to feed back their views to us so that we can reach as many people as possible.

Your Lordships also know that the Auld review itself received over 500 written responses during the period for public comment, including comments from 69 individual magistrates, 44 Benches and 29 magistrates' courts committees. There was a formal period of public consultation after the Auld report. In addition, the report was discussed at a series of regional events which I have already mentioned. The noble Baroness will remember that in November last year we held a large conference to discuss the unified administration and established the structure for work.

We are developing options for the structure of the new agency taking into account the views from regional discussion groups and the views of others. We shall continue to do that. We are beginning to develop work on the role, membership, selection and operation of the courts boards, which will enable us to prepare the regulations, again drawing on the views expressed at the discussion groups and the import from the outcome of the further consultation, including the Government's arrangements for the new agency such as the inspection arrangements and how the agency should run during the proposed period of shadow running prior to full establishment. We shall continue to develop our plan in partnership with all of our stakeholders in the magistrates' courts community, the judiciary. professional and lay court users and consult them where necessary. For example, we would certainly not bring the guidance or regulations to Parliament without having involved our stakeholders. I hope that I have given a comprehensive answer as to how we are going to do that.

There is a small drafting point, but I do not believe that I need trouble the House with it because this was a probing amendment. I hope that the probe has been satisfactory and that the noble Baroness has drawn from the well that which she desires.

Baroness Anelay of St Johns

My Lords, I thank the Minister for responding so carefully and fully to what was a probing amendment. At Third Reading we cannot call it that, so with one eye to my left to the Clerk of the Parliaments, I make clear that it was to clear up remaining uncertainties to make sure that I was clearly within the rules. I did give advance notice to the Minister's office that that was the purpose of these amendments because of the views which have been brought to me from outwith this House.

I am grateful to the noble Lord, Lord Phillips of Sudbury, for his support. The noble Lord, Lord Clinton-Davis, said that I did not need to worry because there is already a provision in the Bill for the Lord Chancellor to consult the courts board. I was seeking from the Minister—and she gave it in abundance—information broader than consultation with the courts board. This is consultation about how the whole process of setting up the courts administration unified system will be taken forward as soon as this Bill becomes an Act.

I am very grateful to the Minister. I am sure that the bodies outwith this House will look carefully at her words. If they wish, they will have the opportunity to take up any of these matters in another place when the Bill passes there. It is right that we take time to digest what the noble Baroness has so carefully set out. At this stage I shall not try to respond because I believe that it might be unhelpful if I did. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns

moved Amendment No. 3: Page 3, line 33, at end insert— (6A) When making an order under subsection (2) the Lord Chancellor shall have regard to the desirability of ensuring that the areas specified in the order are coterminous with—

1. (a) those for the time being established under Schedule 1 to the Police Act 1996 (c. 16), and
2. (b) the area comprising the Metropolitan Police District and the City of London police area."

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 5 [Functions of courts boards]:

Baroness Scotland of Asthal

moved Amendment No. 4: Page 4, line 4, leave out "provided" and insert "made The noble Baroness said: My Lords, subsection(1) of Clause 5 refers to the duty of the courts boards, to scrutinise, review and make recommendations so it is more consistent to use the term "made" rather than "provided" in subsection (2).

As regards Amendment No. 5, it is a drafting amendment to the new subsection (3) of Clause 5 moved by the noble Lord, Lord Goodhart, and accepted by the House on Report. Subsection (3) requires the Lord Chancellor to give written reasons to a courts board in the event that he rejected its recommendations about a final business plan. We have considered the wording of the amendment further and suggest that it could be improved. I hope that the noble Lord agrees.

The new wording inserted in the Bill refers to recommendations, about the final business plan".

But once a business plan is "final" there is little reason for a board to make a recommendation "about" it. If it is final, it cannot be changed until the next plans are made. However, where a courts board disagrees with something in a final plan, what it may do is say that, in the light of that plan, it wishes to make a recommendation—as subsection (1) envisages—about the way in which the Lord Chancellor is discharging his general duty in this area as described in the final business plan, a board would be able to make recommendations to the Lord Chancellor about how it believed that he should be discharging his general duty. The obligation to give written reasons would arise in relation to the rejection of those recommendations, and would amount to an explanation of why the Lord Chancellor was implementing the plan without their approval.

This is a rather technical point, but the amendment achieves what the noble Lord intended. I beg to move.

4 p.m.

Lord Goodhart

My Lords, I accept that Amendment No. 5 is a drafting improvement. I considered that if there were to be a series of drafts, it would be inappropriate to have to give reasons when rejecting recommendations made in the early stages. However, when what was anticipated to be the final version, albeit still in draft, was produced, if recommendations were made at that stage that were not accepted, the Lord Chancellor should be required to give a reason. Although the amendment has a slightly different method of operation, it achieves substantially the same result. Since the Government have decided to make improvements to the draft of subsection (3), is the inference to be drawn that they would not waste their time on something that they were intending to throw out in the other place? Do the Government intend that subsection (3), as amended, will remain in the Bill?

Baroness Anelay of St Johns

My Lords, on Report, I put my name to the amendment of the noble Lord, Lord Goodhart. I agree with him and share his hope.

Baroness Scotland of Asthal

My Lords, I am pleased that the noble Lords have that hope. Of course, I could not possibly comment.

On Question, amendment agreed to.

Baroness Scotland of Asthal

moved Amendment No. 5: Page 4, line 6, leave out from "board" to "written" in line 7 and insert "under subsection (1) as a result of the board's consideration of a final business plan, he must give the board his

On Question, amendment agreed to.

Baroness Anelay of St Johns

moved Amendment No. 6: Page 4, line 14, leave out subsections (5) and (6) and insert— (5) The Lord Chancellor must make regulations about the way in which boards should carry out their functions under subsection (1). (6) The regulations may in particular contain provisions—

1. (a) about the procedures to be followed in connection with draft and final business plans;
2. (b) conferring on the boards functions supplementing their functions under subsection (1)."

The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendments Nos. 9, 10 and 11 and to government Amendment No. 8.

The amendments are substantially the same as those that I tabled on Report as part of my amendments to what were Clauses 4 and 5. I did not press them at that stage and I retable them simply to give the Minister the opportunity to fulfil the undertaking that she gave on Report to my noble and learned friend Lord Mackay of Clashfern. She has responded fully and helpfully through her own amendments, so I shall not waste time. I shall give the Minister the opportunity to set our minds at rest. I beg to move.

Lord Renton

My Lords, I attach importance to the amendment. With great respect to the Government, it really does matter when establishing the new boards, which will be important in the constitution of our magistrates' jurisdiction, that matters should be clear. For them merely to be given guidance would not be clear or strong enough. The way that the boards are run will affect the administration of justice, and therefore my noble friend is right in suggesting that the definition of their functions should be part of regulations—governed by Parliament, I would hope—rather than mere guidance, which could be vague.

We must turn to Schedule 1 in order to find out exactly how important the courts boards will be and what they will have to do. I do not want to weary your Lordships by going through the schedule, but if one glances at it one finds that mere guidance would not be precise enough. We must have regulations.

Baroness Scotland of Asthal

My Lords, I hope that I can quieten the beating heart of the noble Lord, Lord Renton, on this issue. The noble and learned Lord, Lord Mackay of Clashfern, whom, I see with great pleasure, is in his place this afternoon, raised some concerns on Report about what is now subsection (6)(b) of Clause 5. He noted that it would be novel for guidance to modify the statutory functions of the courts boards. The Government promised to consider the matter further and in the light of what the noble and learned Lord said we have decided to remove this paragraph. As in so many things, the noble and learned Lord has proved wise.

A future Lord Chancellor who wishes to amend or supplement the functions of courts boards will be able to do so through primary legislation. I thank the noble and learned Lord for raising this point and the noble Baroness for indicating that she will not press Amendments Nos. 6, 9, 10 and 11 pursuant to the changes that we have made. I hope that all concerned are satisfied.

Lord Mackay of Clashfern

My Lords, I thank the Minister for giving effect to my concern. I venture to think that this is an improvement on the Bill. I also thank her officials for the brave way in which, in correspondence with me, they sought to justify what was there before. Apparently, they have now arrived at an even more rigorous view.

Baroness Anelay of St Johns

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Baroness Scotland of Asthal

moved Amendment No. 8: Page 4, line 19, leave out paragraph (b).

On Question, amendment agreed to.

[Amendments Nos. 9 to 11 not moved.]

Clause 8 [Local justice areas]:

Lord Bassam of Brighton

moved Amendment No. 12: Page 5, line 23, leave out "court administration council" and insert "courts board

The noble Lord said

My Lords, this amendment is consequential on government Amendment No. 18, which was moved on Report. The Bill currently contains a reference to a court administration council. As your Lordships have already agreed, court administration councils have been renamed courts boards. The amendment removes a previously overlooked reference and ensures consistency throughout the Bill. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton

moved Amendment No. 13: Page 5, line 30, leave out "or" and insert— ( ) the Common Council of the City of London, or The noble Lord said: My Lords, this amendment puts it beyond doubt that the Lord Chancellor must consult the City of London if he wishes to alter the boundaries of a local justice area that falls partly or wholly within the City. The amendment alters the definition of a local authority that appears in subsection (7) of Clause 8. Section 34 of the Justices of the Peace Act 1997 requires the Lord Chancellor or a magistrates' courts committee wishing to change the boundaries of a petty sessions area first to consult every relevant council affected by those changes. Section 34 defines "every relevant council" and Section 70 of the same Act extends that provision to cover the corporation of the City acting through its Common Council. The Bill does not currently contain a provision similar to Section 70. It could be argued, therefore, that the Lord Chancellor would not be required to consult the City of London over boundary changes to local justice areas that fell within the City. That is not our intention. Amendment No. 13 adds the explicit reference of the Common Council of the City of London to the meaning of "local authority" in subsection (7) of Clause 8. I hope your Lordships' feel able to accept the amendment. I beg to move.

On Question, amendment agreed to.

Clause 30 [Places, dates and times of sittings]:

Lord Bassam of Brighton

moved Amendment No. 14: Page 14. line 16, leave out "locally accesible by" and insert "accessible to The noble Lord said: My Lords, Amendment No. 14 simplifies the wording of Amendment No. 58 moved by the noble Baroness, Lady Anelay, on Report on 8th May.

The effect of Amendment No. 58 was to place a duty on the Lord Chancellor, when making directions as to the 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.

Amendment No. 14 alters Clause 30 by changing the phrase "locally accesible by"—I am sure your Lordships will have noted the mistake—in subsection (2) to "accessible to". In drafting terms, it is not clear what the expression "locally accessible" means. We took it to mean geographical accessibility rather than physical accessibility. However, on Report, during the debate on Amendment No. 58, the noble Lord, Lord Renton, made a number of equally important points about the need to ensure physical accessibility to courthouses. I refer in particular to col. 1250.

Removing the word "locally" from Clause 30(2) will mean that the Lord Chancellor is simply under a duty to have regard to the need to ensure that courthouses are accessible to persons resident in each local justice area. The term "accessible" would not be limited in any way. I believe that that adds a useful simplification to the drafting of the amendment moved by the noble Baroness. I hope that she will accept that it offers no detriment to her stated objectives and that perhaps in some way the simplification enhances its meaning. I beg to move.

Baroness Anelay of St Johns

My Lords, I welcome the Government's suggested improvement to my drafting for two reasons. The first is one to which the noble Lord, Lord Bassam of Brighton, referred. It more properly takes account of the views expressed not only by myself but by my noble friend Lord Renton on Report. I had in mind very firmly that it was not just a matter of geographical access but also of physical access. In the European Year of Disabled People, it is particularly appropriate for such a helpful amendment to be on the face of the Bill.

My second reason perhaps echoes the earlier words of the noble Lord, Lord Goodhart. I accept the Government's amendment in the hope that it presages that it may not return here from another place.

Lord Goodhart

I too welcome the amendment and one previously unmentioned aspect of it, which is the correction of the misspelling of the word "accessible".

On Question, amendment agreed to.

Baroness Seccombe

moved Amendment No. 15: After Clause 31, insert the following new clause— TRAINING (1) The Lord Chancellor may provide guidance as to the training of a fines officer. (2) Guidance provided in accordance with subsection (1) shall be published—

1. (a) before the pilot scheme regarding fines officers is established, and
2. (b) after consultation with such persons as the Lord Chancellor may deem appropriate."

The noble Baroness said: My Lords, the Bill introduces the role of fines officers and specifies their functions. However, nothing on the face of the Bill gives any guidance as to the training of these new civil servants. These officers will carry out quasi-judicial functions. It is essential that they have the best preparation for this new and important role. It is also essential that all participants in the court process understand their particular role and how they will dovetail in with all court users.

The Government have now made a clear commitment on the training of lay magistrates following discussion of amendments in the House, but not for fines officers. The amendment would ensure that the Lord Chancellor consults such persons he feels are appropriate before publishing any guidance. This will be subject to the pilot schemes. It would ensure the flexibility to provide the best training possible. It would also give outside organisations the opportunity to share their expertise in order to ensure that this new role works to enable the smooth running of the courts. I beg to move.

4.15 p.m.

Lord Clinton-Davis

My Lords, I support the idea that fines officers should be properly trained. But that goes for any official of the courts. It should not be confined to fines officers. I do not think that it is necessary to provide specific guidance so far as they are concerned. The courts have different functions. There are different areas. People have to subscribe to different practices as a result. I do not think, therefore, that there should be a centralised form of guidance. I hope the noble Baroness will withdraw her amendment.

Baroness Scotland of Asthal

My Lords, I thank my noble friend Lord Clinton-Davis for his comments. However, I say straightaway to the noble Baroness that I am sure that all Members of the House agree with her about the importance of ensuring that fines officers are properly trained. That will be vital to the success of the pilot schemes as well as to national implementation of the new measures.

Where we depart is on whether the amendment is necessary. Amendment No. 15, tabled by the noble Baroness, Lady Seccombe, proposes that a new clause be added to the Bill to allow the Lord Chancellor to provide guidance for the training of fines officers. However, the effect of the amendment would be that the pilots could not commence until such guidance had been prepared in consultation with appropriate persons and published.

Clearly, before the pilots begin, there is need to consult the magistrates' courts committees concerned on the format and content of the training that will be needed. However, it is not generally the practice for the Lord Chancellor to publish training guidance and we see no need for a statutory requirement to do so. Any document published prior to the completion of the pilots will necessarily only be a first draft and will be largely untested in practice.

Furthermore, during the pilots not all fines officers will be applying the full range of sanctions set out in Schedule 3. Each fines officer participating in the pilots will be trained and given guidance about the particular package of measures from the fines collection scheme being piloted in their specific area.

The pilots themselves will provide an opportunity to test the quality and scope of the training given, and to identify any further training needs that may arise. It is therefore likely that training material will be refined and supplemented during the pilots. Following evaluation, the fines collection scheme will be adjusted in the light of experience of the pilots and the final scheme will be put before Parliament for approval.

The noble Baroness will remember from when we last discussed the matter that we are open to the fact that some suggestions we make may be more successful than others. It may be that some will not work at all. We have no hesitation in saying that we shall not seek to pursue those measures which do not prove successful. We only want that which actually works to be put forward and therefore to come before Parliament for its approval by the affirmative resolution procedure.

The evaluation of the pilots will include an evaluation of the training needs for the final scheme. The national guidance, which will be made available to all court areas, will be based upon material which has been tested in the field and which relates directly to the final scheme approved by Parliament.

I can assure your Lordships that fines officers will be suitably trained for their role. It is in the interests of the fines collection scheme that they are well trained, so that we can actually evaluate the different schemes properly. However, if the Government were to accept Amendment No. 15, it is likely that commencement of the pilots would be delayed and that the opportunity to test the quality of the guidance would have to be deferred. I am sure that that is not what the noble Baroness intends. I therefore invite the noble Baroness to withdraw her amendment, assured that when the matter comes back after the final scheme has been tested she will have a proper opportunity to make whatever comments she and those opposite think right in relation to the scheme overall.

Baroness Seccombe

My Lords, I thank the Minister. As I believe that we are both committed to the training of officers in the new role, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 [Disqualification of lay justices who are members of local authorities]:

Lord Goodhart

moved Amendment No. 16: Page 20, line 28, leave out subsection (5). The noble Lord said: My Lords, the amendment's purpose is to remove subsection (5) from Clause 41, which basically says that a lay justice who is a councillor must not sit as a member of the court in proceedings to which the councillor in question is party. That seems absolutely obvious. Subsection (5) states: No act is invalidated merely because of the disqualification under this section of the person by whom it is done". Under existing law, a party to proceedings has the right to an independent and impartial tribunal—as required by Article 6 of the European Convention on Human Rights, which was introduced into our law under the Human Rights Act 1998. If a party to proceedings does not get an independent and impartial tribunal, they are entitled to have the decision set aside.

A tribunal is not independent and impartial if there is a possible perception of bias. It is not necessary to show that there was any actual bias. The first decision by your Lordships' House in the Pinochet case was set aside because of the involvement of one of the members of the appellate committee—the noble and learned Lord, Lord Hoffmann—with Amnesty International. Amnesty was not a party to that case but had intervened for the purpose of addressing arguments to the appellate committee. No one suggested that it was necessary to show that the noble and learned Lord was actually biased.

The presence on a tribunal of a judge who has a personal interest in a matter means that the decision in which he participates can be challenged under the Human Rights Act. What, therefore, is the purpose of subsection (5)? The Government are suggesting that it does not really alter the existing law. If so, why is it there? It seems to go beyond existing law. If a person who decides something is disqualified, under the Human Rights Act that person does not constitute an independent and impartial tribunal—and the decision will be set aside if it is challenged. In other words, the decision will be set aside because of the disqualification.

It appears that subsection (5) requires something more than the mere fact of disqualification. That can only mean that there is a need to show not just the fact of disqualification but real bias or a real risk of bias by the individual in question. If the Government are correct, subsection (5) is unnecessary. If we are correct, subsection (5) is incompatible with convention rights. Why not drop it? I beg to move.

Lord Borrie

My Lords, I oppose the amendment because it fails to take into account the inconvenience and time wasting that could arise. After short or long proceedings have been completed, a decision could be overturned because of a technical breach of Clause 41. I agree with the noble Lord that a party should be enabled to seek to overturn a decision made by a disqualified tribunal. I agree also that that should be enabled either on the basis of actual bias or on the basis of potential bias if it can be proved that Article 6 of the European Convention on Human Rights has been breached.

But if the decision of the justices were automatically void—which it would be if we deleted subsection (5)—in certain cases that could be against the public interest. It could, for example, lead to a litigant taking advantage of a technical breach, so abusing the judicial system. Think of a case typically decided by three magistrates in which the local authority is one of the litigants and one of the lay justices is a member of the local authority. He may not have been a member of the relevant committee or had anything to do with the matter but there would be a technical breach. If somebody wanted to avoid the decision on that ground, so be it—it could be challenged.

The Pinochet case to which the noble Lord referred arose because somebody challenged the decision. It was not automatically void.

Lord Goodhart

My Lords, is the noble Lord aware that at a much earlier stage, the noble and learned Lord, Lord Donaldson of Lymington, pointed out that invalidation would only arise where the decision was challenged?

Lord Borrie

My Lords, I am happy that we agree. I recall the noble and learned Lord saying that if there were disqualification on the ground that one of the deciders was a member of the local authority, the decision would be voidable and could be challenged. Removing subsection (5), with its use of the word "merely", means that a decision so reached should have no effect even if nobody challenged it—which is unfortunate and would be better avoided.

Baroness Anelay of St Johns

My Lords, I support Amendment No. 16, to which I have put my name. I shall not abuse Third Reading by repeating all the arguments. For those who are interested, they appear at cols. 528–530 of the Official Report for 10th February; and at cols. 1272–1273 of the Official Report for 8th May.

The noble Lord, Lord Borrie, questions why a decision should be annulled for just a technical breach. The tribunal member may not have been on the committee involved but might have been lobbied or be part of the party caucus. That is my answer to the noble Lord and why I continue wholeheartedly to support the amendment. The public need confidence in decisions taken by our magistrates.

Viscount Bledisloe

My Lords, I confess to being puzzled by the points made by the noble Lord, Lord Borrie. He said that it would be inconvenient and expensive to have a decision set aside. Of course it is—hut it was inconvenient and expensive to have the Pinochet decision set aside. It meant rather greater expense than setting aside the decision of a magistrates' court.

Let us suppose that Clause 41 was not in the Bill. Surely on a plain common-law basis, a decision made by a Bench of magistrates on which one member of the local authority in question was sitting would automatically be voidable under the Pinochet doctrine. While the noble Lord, Lord Borrie, says that the magistrate in question may not have had much connection with the decision by the local authority, there was no suggestion that my noble and learned friend Lord Hoffmann had any connection with Amnesty International's decision to intervene in the case or to take part. The point is that he was there and it looked like there was a connection.

I confess that I do not understand what the situation would be if subsection (5) stayed where it was and someone applied not under the Bill but under the common-law basis on grounds of apparent bias consisting of the fact that the magistrate was a member of the local authority. If the whole of Clause 41 was not there, he would win. Is it suggested that subsection (5) means that he will now lose, or does it leave the common-law doctrine available but say, "You cannot rely on the statute", in which case it makes no difference? It seems that the present clause is curious and the amendment must be right.

4.30 p.m.

Baroness Scotland of Asthal

My Lords, I am not able to agree with the position advocated by the noble Lord, Lord Goodhart, and supported by the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bledisloe. My noble friend Lord Borrie was correct in his analysis.

As the noble Lord, Lord Goodhart, suggested, he has brought back his amendment asking for the removal of subsection (5) of Clause 41—previously Clause 36. We have debated the matter in Committee and on Report, and I am not sure that there is a great deal that I can add. We had an extensive Committee debate and Report stage. I hear echoes of Committee-type debates this afternoon.

We remain content with the draft as it stands. We are content that it could 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 view, and as I said before, as it is satisfied with the clause we feel strongly that it would be inappropriate to go behind that view.

Although I am happy to repeat the detailed reasoning that I have already repeated twice, I hope that I do not need to do so, other than in "telegraphic form"—to adopt the mantle of the noble Lord who normally sits on the Benches opposite but is not in his place. As I explained in Committee and on Report, the use of the word "merely" in the clause avoids conflict with Article 6. If a local authority justice were to adjudicate where Article 6 of the convention is engaged and in circumstances where that article is violated by his so doing, that would be unlawful by reason of Section 6 of the Human Rights Act 1998.

As noble Lords know, Article 6 refers to the determination of a party's civil rights and obligations, or of any criminal charge against him. Where the justice acts in circumstances that do not engage the Article, or where his participation does not violate it—for example, as may be the case at an interlocutory hearing—the subsection provides that the action will not be invalidated merely because of the disqualification. It will always be open to a party to appeal if it is felt that Article 6 bites in any instance. But where no prejudice is caused by the magistrate's disqualification, it would be unreasonable and burdensome to invalidate those decisions.

I noted that when the noble Lord, Lord Goodhart, was explaining the rationale behind the amendment he said that a risk of bias must be shown. That is not entirely right, because a legitimate doubt as to bias must be established. That may not be the case in relation to interlocutory decisions.

Subsection (4), as I mentioned before, is drawn widely. It says "no act". It does not refer only to final decisions or to decisions of any substance. It will catch unobjectionable interlocutory decisions. I do not think that anyone would suggest that it would change the odds where the decision was a determination or could affect a determination under Article 6.

Clause 41 would not necessarily impinge on the same population of judicial decisions as much convention case law does. In a case as complex and sensitive as Pinochet, it may be that there is no interlocutory decision which is not of moment. That would not necessarily be true in all cases proceeding in the magistrates courts. Of course we accept that membership of a local authority that is party to a case may cause a lack of impartiality, but we do not believe that a complaint could be sustained in relation to every single act of the justice in question. As I have said, subsection (5) would cover every single act.

Finally, I want to repeat a point I made on Report—which, with the greatest respect, is a telling point: that the phrase in question has been extant since the Justices of the Peace Act 1949. I do not believe that it has given rise to any injustices or problems in all that time. The need for impartiality and independence is nothing new. If the phrasing of the subsection were as objectionable as the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, believe it to be, someone would have challenged it before now.

We do not believe that the new climate of human rights has changed things so much that the provision has become unacceptable. If anything, the Human Rights Act has strengthened the position and should make it easier for those who wish to challenge to do so. I hope, therefore, that the noble Lord will withdraw his amendment and rely on the sagacity and good sense of the Joint Committee and our concurrence with its view.

Lord Goodhart

My Lords, I am grateful to the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bledisloe, for their support. The noble Lord, Lord Borrie, described this as a technical breach. I do not believe that it is. Clause 42 validates a technical breach. It deals with the validation of decisions taken by justices who turn out to have been invalidly appointed because they were barred by the Act of Settlement. That invalidation of their appointment does nothing to show that they are in any way biased or likely to have a lack of ability to try a case as well as anyone who is authorised to do so. I have no objection to the passage in Clause 42 which validates decisions taken by magistrates who for that highly technical reason turn out to have been invalidly appointed.

I suggest that taking part in a decision by an interested party—for the purposes of the law—is never a technical breach. It must always give rise to the perception of a lack of impartiality. It is of course true to say that some such hearings may be interlocutory, but many interlocutory hearings may have an important bearing on the outcome of the case. We cannot divide hearings into interlocutory and substantive ones. So the subsection should be deleted. It may be true that those words have been present ever since the Justices of the Peace Act 1949, but now that we have the Human Rights Act 1998, we need to reconsider the matter. If we do so, we shall arrive at a different conclusion.

This is a significant amendment. I do not want to add further to the lengthy debate that we have held on two previous occasions, but I beg to test the opinion of the House.

4.41 p.m.

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

Their Lordships divided: Contents, 141: Not-Contents, 122.

Division No. 2
CONTENTS
Aberdare, L.	Elles, B.
Ackner, L.	Elliott of Morpeth, L.
Addington, L. [Teller]	Elton, L.
Allenby of Megiddo, V.	Erroll, E.
Anelay of St Johns, B.	Ezra, L.
Astor, V.	Feam, L.
Astor of Hever, L.	Fowler, L.
Avebury, L.	Fraser of Carmyllie, L.
Baker of Dorking, L.	Freeman. L.
Barker, B.	Gardner of Parkes, B.
Beaumont of Whitley, L.	Garel-Jones, L.
Blatch, B.	Geddes, L.
Bledisloe, V.	Gilmour of Craigmillar, L.
Bradshaw, L.	Goodhart, L. [Teller]
Buscombe, B.	Goschen, V.
Butterworth, L.	Gray of Contin. L.
Byford, B.	Hamwee, B.
Caithness, E.	Hanham. B.
Cameron of Lochbroom, L.	Hanningfield, L.
Campbell of Alloway, L.	Hayhoe, L.
Carlisle of Bucklow, L.	Henley, L.
Chadlington, L.	Higgins, L.
Clement-Jones, L.	Holme of Cheltenham. L.
Colville of Culross, V.	Home, E.
Colwyn, L.	Hooper, B.
Cope of Berkeley, L.	Howe, E.
Craig of Radley, L.	Howe of Aberavon, L.
Craigavon. V.	Howe of Idlicote. B.
Denham, L.	Howell of Guildford. L.
Dixon-Smith, L.	Hunt of Wirral, L.

Jacobs, L.	Perry of Walton, L.
Jenkin of Roding, L.	Plumb, L.
Jopling, L.	Plummer of St. Marylebone, L.
Knight of Collingtree, B.	Prior, L.
Lamont of Lerwick, L.	Pym, L.
Lane of Horsell, L.	Rawlings, B.
Lester of Herne Hill, L.	Reay, L.
Liverpool, E.	Redesdale, L.
Lucas, L.	Renton, L.
Luke, L.	Rodgers of Quarry Bank, L.
Lyell, L.	Roper, L.
McColl of Dulwich, L.	Russell, E.
MacGregor of Pulham Market,L.	St. John of Bletso, L.
	Saltoun of Abernethy, Ly.
Mackie of Benshie, L.	Sandberg, L.
McNally, L.	Scott of Needham Market, B.
Maddock, B.	Seccombe, B.
Mar and Kellie, E.	Selborne, E.
Marlesford, L.	Selsdon, L.
Marsh. L.	Sharp of Guildford, B.
Masham of Ilton, B.	Sharples, B.
Mayhew of Twysden, L.	Shaw of Northstead, L.
Methuen, L.	Sheppard of Didgemere, L.
Michie of Gallanach, B.	Skelmersdale, L.
Miller of Chilthorne Domer, B.	Smith of Clifton, L.
Monro of Langholm, L.	Soulsby of Swaffham Prior, L.
Montrose, D.	Stewartby, L.
Mowbray and Stourton, L.	Strange, B.
Murton of Lindisfarne, L.	Strathclyde, L.
Newby, L.	Swinfen, L.
Newton of Braintree, L.	Thomas of Walliswood, B.
Noakes, B.	Thomson of Monifieth, L.
Northover, B.	Tordoff, L.
Norton of Louth, L.	Trefgarne, L.
Oakeshott of Seagrove Bay, L.	Trumpington, B.
O'Cathain, B.	Vivian, L.
Onslow, E.	Wakeham, L.
Palmer, L.	Walmsley, B.
Park of Monmouth, B.	Wilcox, B.
Pearson of Rannoch, L.	Williams of Crosby, B.
Perry of Southwark, B.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Dormand of Easington, L.
Ahmed, L.	Dubs, L.
Alli, L.	Eatwell, L.
Alton of Liverpool, L.	Elder, L.
Andrews, B.	Evans of Parkside, L.
Archer of Sandwell, L.	Evans of Temple Guiting, L.
Ashton of Upholland, B.	Falconer of Thoroton, L.
Bach, L.	Faulkner of Worcester, L.
Barnett. L.	Fillcin, L.
Bassam of Brighton, L. [Teller]	Fyfe of Fairfield, L.
Berkeley, L.	Gale, B.
Bernstein of C'raigweil, L.	Gibson of Market Rasen, B.
Blackstone, B.	Gilbert, L.
Blood, B.	Golding, B.
Borrie, L.	Goldsmith, L.
Bragg, L.	Gordon of Strathblane, L.
Brennan, L.	Gould of Potternewton, B.
Brooke of Aherthorpe, L.	Graham of Edmonton, L.
Brookman, L.	Greengross, B.
Bruce of Donington, L.	Gregson, L.
Campbell-Savours, L.	Grocott, L. [Teller]
Carter, L.	Hardy of Wath, L.
Christopher, L.	Harrison, L.
Clark of Windermere, L.	Haskel, L.
Clarke of Hampstead, L.	Hayman, B.
Clinton-Davis, L.	Hogg of Cumbemauld, L.
Cohen of Pimlico, B.	Hollis of Heigham, B.
Corbett of Castle Vale, L.	Howells of St. Davids, B.
Crawley, B.	Howie of Troon, L.
David, B.	Hughes of Woodside, L.
Davies of Coity, L.	Janner of Braunstone, L.
Dixon, L.	Jeger, B.

Jones, L.	Pitkeathley, B.
Jordan, L.	Plant of Hightield, L.
Kilclooney, L.	Prys-Davies, L.
King of West Bromwich, L.	Ramsay of Cartvale, B.
Layard, L.	Rea, L.
Lea of Crondall, L.	Rendell of Babergh, B.
Lipsey, L.	Richard, L.
Macdonald of Tradeston, L.	Rooker, L.
McIntosh of Haringey, L.	Sainsbury of Turville, L.
McIntosh of Hudnall, B.	Sawyer, L.
MacKenzie of Culkein, L.	Scotland of Asthal, B.
Mackenzie of Framwellgate, L.	Sheldon, L.
Mason of Barnsley, L.	Simon, V.
Massey of Darwen, B.	Smith of Gilmorehill, B.
Milner of Leeds, L.	Smith of Leigh, L.
Mishcon, L.	Stone of Blackheath, L.
Mitchell, L.	Strabolgi, L.
Morgan, L.	Symons of Vernham Dean, B.
Morgan of Huyton, B.	Temple-Morris, L.
Morris of Aberavon, L.	Thornton, B.
Morris of Manchester, L.	Tomlinson, L.
Nicol, B.	Turner of Camden, B.
Ouseley, L.	Uddin, B.
Parekh, L.	Varley, L.
Patel of Blackburn, L.	Whitaker, B.
Paul, L.	Whitty, L.
Pendry, L.	Williams of Elvel, L.
Peston, L.	Williamson of Horton, L.
	Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.52 p.m.

Clause 42 [Effect of Act of Settlement on existing justices of the peace]:

Lord Goodhart

moved Amendment No. 17: Page 21, line 4, after "2002" insert "or after the coming into force of this sections The noble Lord said: My Lords, the effect of Clause 42 is to validate appointments made before 31st January 2002 of foreign citizens as justices of the peace. Those appointments were not valid because of Section 3 of the Act of Settlement, something that was not realised until or around January 2002. I understand that although Section 3 of the Act of Settlement refers to people born outside the United Kingdom, it does not now apply to persons who are naturalised. Thus, people who become naturalised British citizens are eligible to be justices of the peace and to hold other judicial offices. However, nowadays many non-citizens living permanently or long-term in the United Kingdom would make excellent justices of the peace.

A parallel situation is that of my late father who, although an American citizen all his life, spent his working years in this country. During the Second World War he served as chairman of the Southern Region Price Regulation Committee, a post to which I imagine he would have been disqualified under the Act of Settlement if anyone had thought to look into it.

Under the terms of Clause 42, those who were invalidly appointed are now to be enabled to resume sitting, which is something that we welcome. However, I ask why we should not allow the appointment of non-citizens to continue? Surely we do not have so many candidates for the office of justice of the peace that we can afford to dispense with that group. I beg to move.

Baroness Anelay of St Johns

My Lords, I rise briefly to support the amendment, to which I have added my name, for the reasons put forward by the noble Lord, Lord Goodhart.

Lord Renton

My Lords, I, too, support the amendment for yet another reason, which I shall outline briefly. My mother, a British subject, was born in South America, but eventually came over here where she was educated, married and lived her life. The mere words, "born outside the United Kingdom" are very inhibiting. We must amplify them in the way suggested by the noble Lord, Lord Goodhart.

Baroness Scotland of Asthal

My Lords, both this amendment and its earlier variant seek to avert the effect of Section 3 of the Act of Settlement. This would have the effect of enabling the Lord Chancellor to appoint foreign nationals as lay magistrates. On 8th May I gave an assurance in the House that we would consider our position and consult with government colleagues on how best to take this issue forward. We have not yet had the opportunity to obtain a definitive view from colleagues who are dealing with the wider implications of altering nationality requirements arising from the Act of Settlement.

I say again that we have every sympathy with the intention of the amendment. However, we need to consider carefully whether it would be appropriate to include provisions in this Bill because of the planned Crown Employment (Nationality) Bill, which 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. However, we are actively discussing whether it might be possible to bring forward an amendment to the Courts Bill at a later stage.

I hope that the noble Lord will exercise a little patience on this matter and that he will feel able to withdraw the amendment.

Lord Goodhart

My Lords, I am grateful to the noble Baroness for what she has said on this issue. I shall exercise patience and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 [Functions of Chief Inspector]:

Lord Hunt of Wirral

moved Amendment No. 18: Page 28, line 30, at end insert— ( ) The report made under subsection (1) shall highlight best practice and catalogue inefficiencies in the discharge of the functions of the Inspectorate. The noble Lord said: My Lords, I raise this issue to remind the noble Lord, Lord Bassam of Brighton, that in regard to this subject he agreed to take away a previous amendment and look at the wording in order to check it. The reason I thought it right to bring the matter forward again at this stage is that I have also looked very carefully at the wording and have found that it was word-for-word what the Lord Chancellor had said was the objective of the chief inspector and his functions. I am therefore confident that the noble Lord will say something rather positive about the amendment. In that light, I beg to move.

Lord Bassam of Brighton

My Lords, the speaking notes say that I have, listened with considerable interest as to the reasons why the noble Lord, Lord Hunt, considers Amendment No. 18 to be necessary". That line is rather more accurate than I had thought when I first read it. The aim of the amendment is to ensure that the annual report submitted by the chief inspector should include highlighting best practice and the cataloguing of inefficiencies. We certainly agree with that objective. However, as I shall explain, the drafting of the amendment does not achieve that aim.

The noble Lord has made it clear that this is a matter that was tabled and debated in Committee. During the debate on 1lth February, if our memories can stretch back that far, the noble Lord drew attention to the words of my noble and learned friend the Lord Chancellor in describing the wording in Part 5. When talking about the proposed new inspectorate at Second Reading, my noble and learned friend the Lord Chancellor said: It will ensure an improved and more consistent level of service to all court users by highlighting best practice and reporting on inefficiencies".—[Official Report, 9/12/02; col. 18.] As I have said previously, one of the primary roles of any inspectorate must be to investigate and report on inefficiencies and to highlight, promote and promulgate best practices. Indeed, the Magistrates' Courts Service Inspectorate has been doing this since its inception. I find it hard to imagine how that reporting function could be properly discharged if the chief inspector, whether it be the current chief inspector of the MCSI or the chief inspector of the new inspectorate of court administration, failed either to highlight best practice or catalogue inefficiencies where appropriate.

On the drafting point, the amendment would seem to be flawed in that it appears to be suggesting that the chief inspector should highlight the best practices and catalogue the inefficiencies in the work of his own organisation. I assume that the noble Lord means that the chief inspector is to report on the best practices and inefficiencies in the functions he is inspecting. But if the noble Lord reads the words carefully, he will see that the meaning could be as I have suggested. For those reasons, and although we share the spirit behind the amendment, I hope that he will feel able to withdraw it.

5 p.m.

Lord Hunt of Wirral

My Lords, I merely wanted to remind the Minister that he said in Committee that he would take the amendment away and see whether the drafting could be improved. Therefore, I rather regret that he has occupied so much time in pointing out the deficiencies of the drafting. I am merely waiting for his better wording. Now, as the Bill proceeds to another place, I look forward to seeing it there. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 [Criminal Procedure Rule Committee]:

Lord Hunt of Wirral

moved Amendment No. 19: Page 33, line 22, at end insert— ( ) Persons appointed under subsection (2) shall be appointed for a fixed period of three years and shall be eligible for reappointment for one future period of three years. The noble Lord said: My Lords, I hope noble Lords will accept that I studiously and constantly register my interests in these debates—not only as senior partner in a major firm of litigation solicitors, but also as the Minister who introduced the Nolan commission and took great pride in establishing that commission as safeguarding the best standards in public life.

In that context, we have had a previous discussion to clarify the uncertainties over the appointments system. The issue of the length of membership and the process of appointment to procedure rule committees was first raised in Committee. I asked whether the Nolan principles would be used in the making of appointments. I recall that the noble Lord, Lord Goodhart, put the point very clearly, and far more effectively than I had. He said: Under the classic Nolan principle there would normally be an appointment for a period of three years, renewable once but not more than once".—[Official Report, 11/2/03; col. 650.] In responding to my amendment, the Minister had said: I do not have a pat answer".—[Col. 649.] I must tell the noble Baroness that that has given rise to some mirth at the Bar, because her name is Pat. But I understand that she has never been known as Pat; she may have been known as Patsy or Patricia, but not Pat. But she assured us that she did not have a pat answer. So one of the reasons for tabling these amendments is to give either her or her noble friend the opportunity to say a little more.

Seriously, it is essential that the process of appointment to courts boards and to the procedure rule committee is transparent and impartial. I beg to move.

Baroness Scotland of Asthal

My Lords, in view of what the noble Lord has said, I hope I can give him a short and succinct "Patricia" answer.

It is right that the noble Lord should take pride in the achievement of the establishment of the Nolan principles. I can assure the House that all appointments to the criminal and family procedure rule committees and to courts boards will be made in accordance with the code of practice issued by the Office of the Commissioner for Public Appointments and will follow the Nolan principles on probity, openness and transparency.

I think that that might suffice as an answer. If the noble Lord wishes more, I can certainly entertain the House for a good live minutes with further and better information, but I hope that what I have said will suffice.

Lord Hunt of Wirral

My Lords, I hasten to curb the Minister's enthusiasm by quickly saying that I am greatly reassured and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 [Family Procedure Rule Committee]:

[Amendment No. 20 not moved.]

Clause 93 [Award of costs against third parties]:

Lord Hunt of Wirral

moved Amendment No. 21: Page 45, line 34, leave out "(whether or not constituting a contempt of court)" and insert "constituting a contempt of court The noble Lord said: My Lords, we turn once again to the award of costs against third parties. There has been considerable consternation outside this House at some of the provisions. I see that Amendments Nos. 21 and 22 are to be taken separately, so I shall speak first to Amendment No. 21.

Perhaps I may explain that the order-making power confers enormous discretion upon magistrates and trial judges to make orders that could require the payment of huge amounts of money by third parties. In those circumstances there should be legal certainty about the way in which the power can be exercised.

I do not believe that we should allow legislation to be enacted which would make third parties vulnerable to third party costs orders for lawful behaviour. They must be able to regulate their behaviour and avoid any act of serious misconduct by reference to recognised and consistent standards. The circumstances in which the powers of the courts can be exercised should, therefore, be limited to behaviour which is recognised as unlawful, and the power should be exercised in a consistent, proportionate and reasonable fashion. The legislation introducing this power should, therefore, at least set legal preconditions that will safeguard against a degree of uncertain, arbitrary and inconsistent use, and certainly against the levying of disproportionate awards in circumstances that do not merit orders.

We had a debate about rights of appeal. They are very valuable, and are vital as additional safeguards; but they can act as a check only after the event. The legislation, in defining the power, needs to delineate the circumstances more precisely, confine the courts' powers more tightly and ensure their consistent application. After all, third parties' successful appeals from the magistrates' court to the Crown Court will not set any legal precedent. Appeals alone, therefore, will not set the kind of consistent and binding standards on the courts which I believe are necessary to regulate their behaviour and prevent unjustified orders being made.

I believe that Amendment No. 21 would provide a better degree of legal certainty and consistency of application. It would mean that before an order could he made against anyone the action alleged to be serious misconduct should actually constitute a contempt of court. As third party costs orders can be made at any time, proceedings ought to be delayed until there has been an actual finding of contempt by another court, thereby ensuring the safeguards of independent scrutiny. There would therefore be a known and consistent legal standard with expert, independent scrutiny in every case to ensure that this was maintained. I beg to move.

Lord Clinton-Davis

My Lords, I am slightly bewildered by the wording both of the amendment and of the clause as it stands. I do not understand why the words in brackets have been included at all. Perhaps my noble friend will be able to assure me that that is all right. At the moment, I am very confused about the matter. Why cannot we leave it that there has been serious misconduct by the third party?

Baroness Scotland of Asthal

My Lords, the noble Lord, Lord Hunt of Wirral, and the noble Lord, Lord Goodhart, propose two amendments that would limit the circumstances in which a court could make a third party costs order. I note that the noble Lord, Lord Goodhart, has not spoken to either Amendment No. 21 or 22, but I will respond, if I may, to both—

Lord Hunt of Wirral

My Lords, I am so sorry, I have not yet spoken to Amendment No. 22.

Baroness Scotland of Asthal

My Lords, I shall confine my remarks first to Amendment No. 21. However, there is an inter-relationship between the two so, if I may, when I come to reply to Amendment No. 22, I shall rely on much of what I now say on Amendment No. 21.

The noble Lord proposes to limit the circumstances in which a court could make a third party costs order. The clause has been welcomed in principle on all sides of this House. I think we all agree that it fills an important lacuna in the powers of the criminal courts, and seeks to address a real mischief. But these amendments—and I speak for the moment to both of them—would render the clause virtually ineffective. The Government therefore cannot accept either Amendment No. 21 and/or Amendment No. 22.

I appreciate the concerns that noble Lords have expressed about the potential application of the clause and, in particular, concerns about a "chilling effect" on court reporting by local newspapers. I think that is how the noble Lord, Lord Hunt, referred to them on at least one occasion. I agree that open and accurate reporting of the justice system in action is an important bastion of our democracy. But I believe that these concerns about the effect of the clause are, if I may respectfully say so, overstated. Indeed, I would go so far as to say they are misplaced.

The clause empowers the criminal courts to order costs against third parties in the event of serious misconduct. I come now to the point of my noble friend Lord Clinton-Davis, and hope what I will now say will clarify matters. I stress "serious misconduct". The clause is not aimed at the minor misdemeanour, or the honest misjudgement or mistake. It makes clear that the power is not limited in the way my noble friend Lord Clinton-Davis fears.

Journalists engaged in court reporting have nothing to fear from the clause provided that they respect any reporting restrictions that may be in place, their own professional code of conduct and, of course, the law of contempt as it affects prejudicial publicity. Journalists are well aware of these things. To assist further, my noble and learned friend the Attorney-General will shortly be issuing for consultation guidance to editors and journalists on prejudicial publicity; and that guidance will touch on the impact of this clause.

There are two further safeguards. First, as we debated at Report, there will be a right of appeal to a higher court, and this will not require permission from the lower forum making the order. Secondly, in the unlikely event that the courts construe "serious misconduct" in a way that impacts unacceptably on, say, wider considerations of freedom of expression, there is a power in new Section 19B(4)(a) to prescribe in regulations that certain categories of "serious misconduct" shall not be subject to a third part costs order. We do not expect to have to exercise this power, but it is there should it ever be needed.

We have considered very carefully the best way to define and limit the scope of this power. We believe that the best approach is to use the term "serious misconduct" on the face of the statute and leave it to the good sense of the courts to apply that concept in the particular case before them. We believe it would be wrong to prescribe a more detailed definition or specific restrictions, in statute or in regulations, as this is likely to create as many problems as it solves and could unwittingly prevent the court from making a costs order when we would all agree it was appropriate. I heard what the noble Lord said about appeals and precedent, but we really do not see why appeals should not provide guidance and precedents in this way. It is no different from any other form of case law.

Amendment No. 21 would enable the court to order costs against a third party only if their serious misconduct also constituted contempt of court. This is over-restrictive and, we suggest, inappropriate. There are many forms of misconduct that might justify a costs order in circumstances that we cannot necessarily foresee. For example—and I wonder whether the noble Lord, Lord Hunt, could give me a little attention in this matter—the misconduct might be a crime that was not also a contempt or a tort or a breach of contract or professional code of conduct or none of these. Common law contempt requires intention to interfere with the course of justice, but misconduct that affected the costs of a case might have quite a different motive, with the perpetrator ignorant or reckless of the impact of his wrong actions on the proceedings.

In earlier debates we discussed the late delivery of prisoners, something which much exercised the noble Lord, Lord Thomas of Gresford. Say this occurred because the driver went off for an hour on a frolic of his own en route. Clearly that would be serious misconduct, presumably a breach of his contract of employment, but not necessarily a contempt. The Contempt of Court Act 1981 provides for strict liability contempt in certain cases—that is, an intention to interfere with justice is not necessary. But separate proceedings, brought with the permission of the Attorney-General, are required. Limiting the new power to cases of contempt could therefore mean that the trial judge would be unable, as we intend, to make a third party costs order during or at the end of the proceedings.

Contempt is a serious matter, attracting punitive sanctions, including imprisonment—hence the need for separate proceedings. But these are not necessary or appropriate here, where only an issue of costs is at stake. There is no punitive element in terms of' loss of liberty. It is limited to the costs actually incurred by the parties. The court would have the discretion to order the third party to pay only some of the costs arising from the misconduct if the full amount would be disproportionate in all the circumstances, but it could order him or her to pay more. That is the importance of giving discretion to the court and allowing it to interpret "serious misconduct".

I have given various assurances, in particular to the noble Lord, Lord Thomas of Gresford, that his concerns are and would be included in the way the Bill is currently drafted. If Amendment No. 21 were to be carried, I respectfully suggest that the assurances I gave to the noble Lord, Lord Thomas of Gresford, would not he able to be carried through. I invite the noble Lord, Lord Hunt, to reconsider and withdraw the amendment.

Lord Hunt of Wirral

My Lords, being ordered to pay huge sums of money can have a penal effect. It is not just restricted to the way the Minister has described.

I would like time to reflect on the Minister's points. In fact, she has persuaded me that the better amendment would be Amendment No. 22, to which I shall return in a moment. No doubt this debate will continue in another place; it is very important to get the matter right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral

moved Amendment No. 22: Page 45, line 35, at end insert— ( ) that misconduct has caused substantial prejudice to the administration of justice in those criminal proceedings, such that it has been frustrated or rendered impracticable, and ( ) the criminal proceedings have thereby been significantly delayed or abandoned, and The noble Lord said: My Lords, as I was explaining in the debate on the previous amendment, the Minister's words have persuaded me that one should concentrate on seeking to ensure that the serious misconduct should have actually seriously affected the administration of justice in the particular criminal proceedings. The prejudice caused by the serious misconduct should have necessitated delay or abandonment of the proceedings ordered by the court. Certainly, third parties ought not to be penalised because there is a disproportionate reaction by a trial judge or magistrate. In the light of those comments, I hope that the noble Baroness, Lady Scotland, accepts the amendment. I beg to move.

Lord Goodhart

My Lords, I support the amendment. I found what the Minister said on Amendment No. 21 fairly persuasive, and it would not be right to go ahead with limiting the provision to cases of contempt of court. Nevertheless, this is a new and powerful weapon that is being deployed, in criminal cases at any rate, and I am well aware of the concerns expressed by the Newspaper Society, which I believe are justified. It would be right to emphasise that there must be serious interference with the course of justice, such as that outlined in the amendment, before it would be appropriate to impose an order for third party costs.

Lord Clinton-Davis

My Lords, I am not entirely sure about the issue, although the noble Lords who have spoken have been very persuasive. My noble friend the Minister should spell out what the court has to consider when considering the issue of misconduct. I do not know whether it should be included in statute, but a strong case has been made out, and I should like to think about it.

Baroness Scotland of Asthal

My Lords, I pray in aid many of the comments that I made as regards Amendment No. 21, especially the reliance that 'will be placed on the Attorney-General's document, which will give a great deal of guidance about what will fall within and without appropriate professional conduct.

I must clarify a comment that I made in relation to costs. I hope that I said that, in relation to the amount of costs that could be awarded, the court could not order an individual to pay more than those costs. Therefore, the payment would be of the costs thrown away and the proportion that the court believed had been contributed by the conduct, which would not in any event be disproportionate in its nature.

For similar reasons to those given under the previous amendment, I cannot accept that Amendment No. 22 gives us a significant improvement. It introduces two new tests to be satisfied before an order can be made. The first test is that there must be "substantial prejudice", frustrating or rendering impracticable the administration of justice. That would impose an unduly high hurdle that would exclude many circumstances in which an order might be appropriate. The words "frustrated or rendered impracticable" seem to point solely to cases that have to be abandoned and could exclude misconduct that causes some delay or otherwise puts the parties to extra cost.

The second test is that proceedings were "significantly delayed or abandoned". To an extent, that is unnecessary. An order can be made only when costs are wasted or incurred unnecessarily, which will usually be as a result of delay or abandonment. It is right to emphasise that. However, there might also be cases when the third party had lied or withheld information, for example, when the parties are put to significant extra cost examining a red herring.

As for the word "significantly", I accept that cost orders should not be made in respect of trivial delays. However, I am confident that that can be left to the court. The need to adjourn so that the third party can make representations will serve to remind the court that an order for costs of an odd half-hour delay may not be worth the candle. If one is going to expend half a day litigating over the loss of half an hour, the courts may be minded to suggest that it is not an appropriate expenditure of time. However, the court, which will be seized with the whole conduct of the case, will be given an opportunity to determine whether the conduct was serious, whether it has caused delay thereby causing cost and, if it has, to what extent the individual should be made to pay for those costs thrown away.

We believe that there are sufficient safeguards. I understand the concerns expressed by noble Lords, and I agree entirely that it is right that they should have been ventilated so that we could have on record the basis on which the Government would believe that the discretion should be exercised. That will he strengthened in due course by the Attorney-General issuing the consultation guidance, which will I am sure greatly assist all those who come to interpret the clause. I hope that with that full explanation, noble Lords are more content than they were.

Viscount Bledisloe

My Lords, will the Minister tell us a bit more about the guidance from the Attorney-General? She has persuaded the House—I am sure rightly—that the words should be left as "serious misconduct", which is fairly vague. However, if the Attorney-General issues guidance as to what editors should and should not do, will that not enable him to write what is in effect a statutory definition of serious misconduct? When the Attorney-General has laid down what is and is not serious misconduct, one can hardly imagine a magistrates' court or even a Crown court saying, "Oh yes, that is what the guidance says, but that is not serious misconduct". Is it really right that someone outside Parliament should define what is to be the conduct that gives rise to the unfortunate consequence for the third party?

Baroness Scotland of Asthal

My Lords, the reason why I say that the guidance should be helpful is that the Attorney-General will set it out only after he has been able to explore fully, through consultation, what the industry, the profession, the journalists and editors feel is appropriate. It is right that the profession has indicated that it would wish to have some indication as to what fell within and without. We hope that the provision is a very good response to that request.

Journalists engaged in court reporting need have nothing to fear from that. They are obliged to respect reporting restrictions that may be in place, their own professional code of conduct and, of course, the law of contempt as it affects prejudicial publicity. Journalists are well aware of those things, and it is in order to assist further that my noble and learned friend the Attorney-General will issue the consultation guidance. We do not believe that it will have a negative impact—we believe that it will be helpful. At the end of the day, courts will still have to take into account what has happened, how it happened, and whether they believe the matter falls within or without serious misconduct.

If there is further and other information that I can give about the consultation, I am happy to offer to write to noble Lords about the issue.

Lord Hunt of Wirral

My Lords, I am grateful to the noble Lord, Lord Goodhart, for his support because we are dealing here with a major new power. I believe that the noble Viscount, Lord Bledisloe, has put his finger on an important aspect—that somewhere in the legislation there should be some preconditions for that power to be exercised. Although the Minister has rightly said that the Attorney-General will be giving guidance, I believe that this House should give him some guidance on the circumstances in which that new power could be exercised—particularly as it has caused such concern amongst those who have to report court proceedings. In those circumstances I wish to test the opinion of the House.

5.30 p.m.

On Question, Whether the said amendment (No. 22) shall be agreed to?

Their Lordships divided: Contents, 120: Not-Contents, 125.

Division No. 3
CONTENTS
Addington, L.	Fearn, L.
Allenby of Megiddo, V.	Fookes, B.
Anelay of St Johns, B.	Fowler, L.
Astor, V.	Freeman, L.
Astor of Hever, L.	Gardner of Parkes, B.
Avebury, L.	Geddes, L.
Barker, B.	Geraint, L.
Beaumont of Whitley, L.	Gilmour of Craigmillar, L.
Biffen, L.	Goodhart, L.
Blatch, B.	Gray of Conlin, L.
Bradshaw, L.	Greenway, L.
Bridgeman, V.	Hamwee. B.
Brittan of Spennithome, L.	Hanham, B.
Brooke of Sutton Mandeville, L.	Hayhoe, L.
Bruce of Donington. L.	Henley, L.
Buscombe, B.	Hooper, B.
Byford, B.	Howe, E.
Caithness, E.	Howe of Aberavon, L.
Campbell of Alloway, L.	Howe of Idlicote. B.
Carlisle of Bucklow, L.	Howell of Guildford, L.
Carnegy of Lour, B.	Hunt of Wirral, L.
Chadlington, L.	Jacobs, L.
Clement-Jones, L.	Jenkin of Roding, L.
Colwyn, L.	Jopling, L.
Cope of Berkeley, L. [Teller]	Kilclooney, L.
Craigavon, V.	Knight of Collingtree, B.
Crickhowell, L.	Lane of Horsell. L.
Denham, L.	Liverpool, E.
Dixon-Smith. L.	Livsey of Talgarth, L.
Elliott of Morpeth, L.	Luke, L.
Elton, L.	Lyell, L.

McColl of Dulwich, L.	Rodgers of Quarry Bank, L.
Mackie of Benshie, L.	Roper, L.
McNally, L.	Russell, E.
Maddock, B.	St. John of Bletso, L.
Mar, C.	Saltoun of Abernethy, Ly.
Mar and Kellie, E.	Sandberg, L.
Marlesford, L.	Scott of Needham Market, B.
Masham of Ilton, B.	Seccombe, B. [Teller]
Mayhew of Twysden, L.	Selsdon, L.
Michie of Gallanach, B.	Sharp of Guildford, B.
Miller of Chilthorne Domer, B.	Shaw of Northstead, L.
Monro of Langholm, L.	Sheppard of Didgemere, L.
Montagu of Beaulieu, L.	Skelmersdale, L.
Montrose, D.	Smith of Clifton, L.
Murton of Lindisfarne, L.	Stewartby, L.
Newby, L.	Strathclyde, L.
Noakes, B.	Swinfen, L.
Northover, B.	Thomas of Walliswood, B.
Norton of Louth, L.	Tordoff, L.
Oakeshott of Seagrove Bay, L.	Trefgame, L.
O'Cathain, B.	Trumpington, B.
Onslow, E.	Vivian, L.
Palmer, L.	Waddington, L.
Park of Monmouth, B.	Wade of Chorlton, L.
Pearson of Rannoch, L.	Wakeham, L.
Plummer of St. Marylebone, L.	Walmsley, B.
Rawlings, B.	Wilcox, B.
Rennard, L.	Williams of Crosby, B.
Renton, L.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Filkin, L.
Ahmed. L.	Fyfe of Fairfield, L.
Alli, L.	Gale, B.
Alton of Liverpool, L.	Gibson of Market Rasen, B.
Andrews, B.	Gilbert, L.
Archer of Sandwell, L.	Golding, B.
Ashton of Upholland, B.	Goldsmith, L.
Bach, L.	Gordon of Strathblane, L.
Barnett, L.	Gould of Potternewton, B.
Bassam of Brighton, L. [Teller]	Gould of Potternewton, B.
Berkeley, L.	Greengross, B.
Bernstein of Craigweil, L.	Grocott, L. [Teller]
Blackstone, B.	Hardy of Wath, L.
Bledisloe, V.	Harris of Haringey, L.
Blood, B.	Harrison, L.
Borrie, L.	Haskel, L.
Bragg, L.	Hilton of Eggardon, B.
Brennan, L.	Hogg of Cumbemauld, L.
Brooke of Alverthorpe, L.	Hollis of Heigham, B.
Brookman, L.	Howarth of Breckland, B.
Brooks of Tremorfa, L.	Howells of St. Davids, B.
Cameron of Lochbroom, L.	Howie of Troon, L.
Campbell-Savours, L.	Hoyle, L.
Carter, L.	Hughes of Woodside, L.
Christopher, L.	Hunt of Chesterton, L.
Clark of Windermere, L.	Hylton, L.
Clarke of Hampstead, L.	Hylton, L.
Clinton-Davis, L.	Janner of Braunstone, L.
Cohen of Pimlico, B.	Jones, L.
Corbett of Castle Vale, L.	Jordan, L.
Crawley, B.	King of West Bromwich, L.
David, B.	Lea of Crondall, L.
Davies of Coity, L.	Lipsey, L.
Dean of Thornton-le-Fylde, B.	Macdonald of Tradeston, L.
Desai, L.	McIntosh of Haringey, L.
Dixon, L.	McIntosh of Hudnall, B.
Dormand of Easington, L.	MacKenzie of Culkein, L.
Dubs, L.	Mackenzie of Framwellgate, L.
Eatwell. L.	Mallalieu, B.
Elder, L.	Mason of Barnsley, L.
Evans of Parkside, L.	Massey of Darwen, B.
Evans of Temple Guiting, L.	Merlyn-Rees, L.
Falconer of Thoroton, L.	Milner of Leeds, L.
Faulkner of Worcester, L.	Mitchell, L.
	Morgan, L.

Morgan of Huyton, B.	Rooker, L.
Moms of Aberavon, L.	Sawyer, L.
Morris of Manchester, L.	Scotland of Asthal, B.
Nicol, B.	Sheldon, L.
Parekh, L.	Simon, V.
Patel of Blackburn, L.	Smith of Leigh. L.
Paul, L.	Stone of Blackheath, L.
Pendry, L.	Symons of Vemham Dean. B.
Peston, L.	Temple-Morris, L.
Pitkeathley, B.	Thornton, B.
Plant of Highfield, L.	Tomlinson, L.
Prys-Davies, L.	Turner of Camden, B.
Puttnam, L.	Varley, L.
Radice, L.	Warwick of Undercliffe, B.
Ramsay of Cartvale, B.	Whitaker, B.
Randall of St. Budeaux, L.	Whiny, L.
Rendell of Babergh, B.	Williams of Elvel, L.
Richard, L.	Williamson of Horton, L.
	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.40 p.m.

Clause 98 [Periodical payments]:

Baroness Scotland of Asthal

moved Amendment No. 23: Page 49, line 41, at end insert— (8) An order for periodical payments shall be treated as providing for the amount of payments to vary by reference to the retail prices index (within the meaning of section 833(2) of the Income and Corporation Taxes Act 1988 (c. 1)) at such times, and in such a manner, as may be determined by or in accordance with Civil Procedure Rules. (9) But an order for periodical payments may include provision—

1. (a) disapplying subsection (8), or
2. (b) modifying the effect of subsection (8)."

The noble Baroness said: My Lords, Amendment No. 23 has been brought forward in response to an amendment tabled at Report stage by the noble Lord, Lord Goodhart. I am aware that the issue of indexation has been a cause of concern and I hope that this amendment is able to offer some reassurance. In moving the amendment, I shall also speak to Amendment No. 24, tabled by the noble Lord, Lord Hunt of Wirral.

At Report stage, I explained that we did not think a provision to make explicit the court's power to index link periodical payments was necessary but agreed that such a provision might act as a useful guide to the courts and parties. Amendment No. 23 therefore provides that periodical payments orders shall be treated as providing for the amount of payments to vary by reference to the retail prices index. We expect that, as now, periodical payments will be linked to the retail prices index in the great majority of cases. However, subsection (9) preserves the court's existing power to make different provision where the court considers it appropriate in the circumstances.

I emphasise that the amendment is merely intended to reflect the current posit ion in respect of indexation. The Bill addresses how payments of personal injury compensation are to be made. It does not seek to deal with how such claims are to be valued. As I said, we expect that the retail prices index will continue to be the norm and that the court will depart from it only where the particular circumstances of the case make it appropriate.

That position is parallel with that of the discount rate, which effectively incorporates the retail prices index in calculating the future loss element of lump sums. I am mindful of the reasons given by the noble and learned Lord the Lord Chancellor in 2001 when setting the discount rate using his powers under Section 1 of the Damages Act 1996. In his reasons, the Lord Chancellor emphasised the need for certainty for all parties while noting that it would remain open for the courts, under Section I (2), to adopt a different rate in a particular case if there were exceptional circumstances which justified their doing so. That view has since been supported by the Court of Appeal. We would expect the courts to adopt the same approach in the analogous case of periodical payments when considering whether to exercise their discretion under subsection (9). On that basis, I hope that the noble Lord, Lord Hunt, will be reassured about the effect of subsection (9) and will not press his amendment. I beg to move.

5.45 p.m.

Lord Hunt of Wirral

had given notice of his intention to move, as an amendment to Amendment No. 23, Amendment No. 24: Line 7, after "may" insert "in exceptional circumstances or by agreement between the parties The noble Lord said: My Lords, in speaking to these amendments I very much welcome the Minister's comments. I was not able to respond to her previous comments, at Report stage, because I had already spoken. However, I did point out on that occasion my concern that people outside this House were beginning to think about trying to run arguments for higher indexation of future loss claims in a number of claims for lump sum payments. The effect of those arguments would be to seek to undermine the force of the reasons given by the noble and learned Lord the Lord Chancellor in 2001 when he fixed the discount rate at 2.5 per cent. I believe, however, that the Minister has now firmly closed that door. That will no doubt be a great relief to those facing such arguments, including the National Health Service.

As the Minister rightly emphasised, the purpose of these clauses is to introduce a new method of payment in personal injury claims. That is broadly to be welcomed. The overall effect of the Damages Act will now be to give a consistent definition for both the method of payment and the way in which claims for future loss are to be valued. By making it clear that in both respects the provisions apply to all save exceptional cases, the Minister has brought welcome certainty for all the parties involved. There will, I am sure, be no justification for satellite litigation on the meaning of subsection (9). In those circumstances, I feel able not to move the consequential amendment standing in my name.

[Amendment No. 24, as an amendment to Amendment No. 23, not moved.]

Lord Goodhart

My Lords, I am most grateful to the Minister. Amendment No. 23, as she said, takes up a point I raised at an earlier stage in the Bill. I am glad that the Government have accepted the argument for putting in a reference to the retail prices index. I also accept that a substantial element of flexibility should be available to the courts here. Therefore, although the noble Lord, Lord Hunt of Wirral, is not intending to press Amendment No. 24, had it been in issue I would have preferred the version put forward by the Government as it stands now rather than as amended. I am very pleased with what the Government have done on this occasion.

On Question, Amendment No. 23 agreed to.

Baroness Scotland of Asthal

moved Amendment No. 25: Page 50, line 9, leave out paragraphs (a) and (b). The noble Baroness said: My Lords. Amendments Nos. 25 and 26 make provision about the bankruptcy treatment of periodical payments. I am very grateful to the noble Lord, Lord Goodhart, for raising this issue in Committee. I hope that these amendments meet his concerns. I say without hesitation that it was right that he highlighted the issue; it might not otherwise have been given the attention it deserves. I genuinely thank him for that.

The amendments are based on the principle that I outlined in Committee. We believe that the bankruptcy treatment of periodical payments should strike a balance which recognises that payments for care costs should be protected but does not otherwise give those in receipt of periodical payments preferential treatment over bankrupts who are not in receipt of personal injury damages.

As I explained, at present the treatment of periodical payments in bankruptcy depends on whether periodical payments are considered to be in the nature of "property" or "income" for the purposes of the Insolvency Act 1986. If they are considered to be property, they would vest in the trustee in bankruptcy, but any personal element would be held on constructive trust for the bankrupt. If they are considered to he income, Section 310 of the Insolvency Act 1986 provides that income received after the date of bankruptcy may be claimed for the bankrupt's estate by way of an income payments order.

Amendment No. 26 prescribes that periodical payments for future pecuniary loss are to be treated as income. However, it also provides that payments made for expenditure incurred as a result of the personal injury—that is, for care and medical costs—cannot be claimed for the bankrupt's estate by an income payments order. An income payments order can still be made and put in place where necessary in respect of payments for other purposes. This ensures that periodical payments relating to loss of earnings are treated in the same way as the earnings of a bankrupt who has not suffered a personal injury.

The new subsection (4)(h) provides that the right to receive periodical payments and any arrangement designed to protect their continuity cannot form part of the bankrupt's estate. This ensures that the right to payments and any annuity used to fund them cannot be sold or disposed of for the benefit of the bankrupt's creditors.

Amendment No. 25 is a consequential amendment deleting the existing reference to insolvency law in Clause 98. I hope that these amendments will answer the concerns that the noble Lord, Lord Goodhart, raised in Committee. I beg to move.

Lord Goodhart

My Lords, I am happy to say that these amendments entirely satisfy my concerns. I am very glad that they have now been inserted so that there is a provision that deals with the question of the bankruptcy of the claimant. I am entirely satisfied with the way this has been dealt with; that is, by treating this as income payments and excluding from an income payments order anything that is needed for the care and medical treatment of the claimant.

On Question, amendment agreed to.

Clause 99 [Periodical payments: security]:

Baroness Scotland of Asthal

moved Amendment No. 26: Page 53, line 38, leave out subsection (4) and insert— (4) Where an individual who has a right to receive periodical payments becomes bankrupt—

1. (a) the payments shall be treated for the purposes of the bankruptcy as income of the bankrupt (but without prejudice to section 329AA of the Income and Corporation Taxes Act 1988 (c. 1)),
2. (b) neither the right to receive periodical payments, nor any property or arrangement designed to protect continuity of the periodical payments, shall form part of the bankrupt's estate for the purposes of the Insolvency Act 1986 (c. 45) or the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (NT 19)),
3. (c) an income payments order may not be made in respect of any part of the periodical payments identified (in the order or agreement under which the payments are made) as relating wholly to expenditure likely to be incurred by or for the individual as a result of the personal injury concerned,
4. (d) nothing in section 2 of the Damages Act 1996 (c. 48) shall present a court from making an income payments order (subject to paragraph (c)), and
5. (e) nothing in section 2 of that Act shall prevent entry into an income payments agreement.

(5) In subsection (4)— bankrupt" has the meaning given by section 381 of the Insolvency Act 1986 (c. 45) or Article 9 of the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)), income payments agreement" means an agreement under section 310A of that Act or equivalent legislation for Northern Ireland, income payments order" means an order under section 310 of that Act or equivalent legislation for Northern Ireland, and periodical payments" means periodical payments awarded or agreed, or in so far as awarded or agreed, as damages for future pecuniary loss by—

1. (a) an order of a court made in reliance on section 2 of the Damages Act 1996 (c. 48) (including an order as varied), or
2. (b) an agreement settling a claim or action for damages in respect of personal injury (including an agreement as varied).

(6) In this section—

1. (a) subsections (1) to (3) shall extend to the whole of the United Kingdom, and
2. (b) subsections (4) and (5) shall extend only to England and Wales and Northern Ireland."

On Question, amendment agreed to.

Schedule 1 [Constitution and procedure of courts boards]:

[Amendment No. 27 not moved.]

Schedule 3 [Collection of fines by fines officers]:

Lord Goodhart

moved Amendment No. 28: Page 68, line 32, after "date" insert "of the delivery to him The noble Lord said: My Lords, with Amendment No. 28 I speak to Amendments Nos. 29, 30, 31 and 34 and also Amendments Nos. 33 and 35, which are in a different group but which I believe would be better taken in a single group.

Under Schedule 3 to the Bill various provisions are included for giving notice to the defendant about a decision. These relate to the various provisions for giving notice of things such as the increase of fines. The defendant is given 10 working days from the date of decision in which to appeal.

There are two things wrong with that. First, the 10-day period should run from the date when the notice is received, not from the date of the decision.

As I pointed out on Report, 10 days from the date of the decision may mean no more than seven days from the date when the defendant sees the notice, even if the defendant is living at home. The reason is that one has to take into account the fact that the decision—even if it is sent by first class post—may not be delivered the next working day, particularly if it is posted at the end of office hours. Also, the defendant may—and in many cases does—leave home for work before the post is delivered.

Amendments Nos. 28 to 31 cover this particular aspect and Amendment No. 34 is supplemental to them because it says that regulations can include presumptions about the date of service. Such presumptions are usually found in regulations providing for notices. The defendant should have the full two-week period—represented by 10 working days from receipt of the notice—in order to appeal against an order.

Secondly, there is no power on the face of the Bill to extend the 10-day period in which the appeal may be made. Without such a power, the period cannot be extended however justifiable the excuse for failure to act on the notice and whatever hardship may be caused. For example, a defendant may lose the right to challenge a substantial increase in the fine following default when the 10-day period expires.

The Government say that if pilot schemes show there is a problem, the Government can use the powers to modify the Bill following those pilots. I accept that is a possibility. However, the absence of the power for a magistrates' court to extend the time beyond the short period of 10 days, is such an obvious potential cause of hardship that the Bill should be amended now. We should not have to wait and see whether the Government decide to take appropriate steps. I believe this is a potential cause of real and serious hardship. I beg to move.

Baroness Seccombe

My Lords, I think the noble Lord, Lord Goodhart, has expressed our views completely. We support these amendments most strongly.

Baroness Scotland of Asthal

My Lords, I appreciate the concerns that the noble Lord, Lord Goodhart, has raised. I will try to make a full response because I think the concerns that the noble Lord has mentioned may be reflected outside this House. Therefore, it would be important for those who read the debate to understand the basis on which the Government seek to assuage those fears and concerns.

Amendments Nos. 28, 29, 30 and 31 stipulate that the 10 working days allowed for the sender to lodge an appeal against the fines officer's decision should begin on the date of delivery of that notice to the offender.

Amendments Nos. 33 and 35 would effectively remove any time limit for appeals against the fines officer's decision. Amendment No. 34 requires regulations to state when a notice can be deemed to be delivered.

As I said on Report, I understand the concerns of the noble Lord and noble Baroness over the issue of time allowed for appeals. I have considered very carefully the points made on Report. However, I again resist these amendments.

First, I will address Amendment No. 34 and the definition of "deemed to be delivered". If we rely on the ordinary postal service, there will be no proof of delivery. Recorded delivery and registered delivery are costly and time-consuming procedures. They give no guarantees that defendants will be in the house to accept their post or even that defendants will accept the delivery when presented with a court letter. If I may respectfully say so, it would be dangerous to provide offenders with the excuse that they have not received a notice if that is because they did not sign for it or did not admit their identity to the postal employee making the delivery. There is no legal compulsion on them to do so. The only practical way the date of delivery could be deemed in regulations is by allowing a reasonable number of days for postal service. To deem that a notice is delivered within, say, two days is essentially the same as having those two days plus 10 working days to lodge an appeal. That is basically allowing 12 days for appeal.

The Government believe that one time limit, taking into account postal factors, is a more sensible approach. The time limit needs to strike a balance between making it clear to offenders that fulfilment of their obligation to the court is an urgent matter and avoiding setting deadlines that are impracticable. We consider that 10 working days—that is two weeks plus allowance for public holidays outside the weekend—is a reasonable balance to begin with.

As I said in previous debates, the period will be piloted alongside other measures in the fines collection scheme. If the time limit of 10 working days is regarded to be too short a time, then this time limit can be extended before national roll-out.

I turn to Amendments Nos. 28, 29, 30 and 31. The matter of when the 10-day time limit should start was the other issue that the noble Lord raised. It would be unwise to accept the offender's word as to the date of delivery, and it is highly unlikely that offenders will let the court know when the letter has been delivered. However, the date that the letter is posted will be known and can be used as a valid start point for setting deadlines.

I should make it clear that the letters and notices to inform the offender about the right to appeal will not state "within 10 working days", as that would undoubtedly lead to confusion. The letters will clearly state a date by which any intended appeal against the decision specified in the same letter must be lodged. Guidance will also be given to fines officers about post-dating the notices. For example, a notice that is typed on Friday afternoon and will not be collected in the post until Monday can have Monday's date. Therefore, there will be a 10-day time limit from Monday, thereby ensuring that time is not wasted, with notices sitting in out-trays or post-rooms. The fines officer will also use discretion to post-date letters and notices due to local circumstances such as local postal strikes.

We must keep in focus the fact that appeals lodged will be against the enforcement action taken to collect the financial penalty, not against the sentence—the fine itself. An offender, even if successful in an appeal against a fines officer's decision, will still be liable to pay the fine. I should also point out that the fines collection and the sanctions available upon default will be made clear to the offender from the outset. None of the notices of increase or further sanctions will come as a surprise.

Two of the three opportunities that the fines officer has to make discretionary decisions are at the point at which the offender applies for a variation. It is intended that meetings to discuss such variations will be in person. That means that the offender will be given a decision there and then. If the fines officer refuses to vary the payment terms, the offender can lodge an appeal on the spot, if he so wishes. The number of appeals against a refusal to vary is, in any case, likely to be small. The court would have set the initial payment rate. If the offender could not prove the circumstances that warranted a variation to the fines officer, it is unlikely that, on the basis of the same evidence, the court that set the original rate will vary either. The third opportunity for the offender to appeal is on the decision that the fines officer can make in respect of further sanctions. To have reached that stage in the scheme, the offender must have defaulted twice and would have shown a "won't pay" attitude.

I must address the example that the noble Lord, Lord Goodhart, gave on Report of offenders who are away on holiday when the further steps notice arrives. Perhaps the noble Lord was thinking more of those who had gone away to visit relatives or for some other purpose, as offenders who can afford to go on holiday should not have any problem in paying the fine. Offenders would have gone away, for any reason, in the knowledge that they had a fine to pay and knowing the consequences of non-payment. If those offenders were willing to pay, contact could have been made with the fines officer prior to going away, and arrangements could be made to overpay in advance to cover the weeks away. Direct payments to the court could be set up or other arrangements made for the time that they will be away. Offenders who go away and receive a further steps notice out of appeal time will have been defaulters before they went away and will have been warned on more than one occasion of the process of further sanctions.

To be at the point of a further steps notice, people will have a financial penalty to pay as a result of a criminal offence and will have avoided payment. That is the stage that they would have got to. The fines officer's decision ought to come as no surprise to the offender. Any appeal would only delay the inevitable payment of the fine, and any sanction or decision by the fines officer can be avoided by the paying of the money owed to the court. An offender who had the use of a vehicle would be likely to use it to go away, and it is not envisaged that those asked to clamp vehicles following service of the appropriate notices would pursue such matters across the country. The offender would, in fact, find the matter waiting to be resolved on his return.

No hardship will be imposed. As long as the payments according to the payments schedule are made, the increase will be disapplied. We have covered the issue of having two clear working days, about which the noble Lord expressed concern.

I hope that I have been able to demonstrate that we have thought carefully about the procedure. The procedure covers the position well and will not create any injustice to the person who has had a fine imposed and wishes to pay but has difficulty with the payment. For those who do not wish to pay or wish to avoid payment in its entirety, it will be an impediment. So be it.

Lord Goodhart

My Lords, I am disappointed by the line that the noble Baroness has taken. I accept entirely that there are people who deliberately choose to frustrate attempts to make them pay fines that they can afford to pay. However, there are also people who are fined and are desperately juggling with competing debts. They must pay the debt, but there may be real problems, and it is essential that they have a right to take their case on appeal so that it can be considered, to see whether there is justification for altering the terms of payment.

I was also surprised by the reaction of the noble Baroness on the question of changing the time from the time of the decision to the time of the receipt of notice. There are two aspects, in particular, that I shall point out. First, the statute requires that: A decision of the fines officer under this paragraph"— there are various paragraphs in the same form— must be in writing, dated and delivered to P". I was distinctly surprised by the suggestion that the fines officer or whoever it is might deliberately put a false date on the notice, simply to give an extension of time, if there were, for example, a postal strike. It would be improper to have that in the Bill. arid any fines officer would be advised not to do it.

The other point is that it is apparent from the schedule that there must be a delivery. I do not see how, if there is no delivery, the notice can be valid. The Bill says that the notice must be signed, dated and delivered. The problem is the time that the delivery may take. Under the Bill, it is still open to the defaulter to say that the notice was never delivered. That element of the argument was misconceived.

My other point is, perhaps, more important—more important than simply saying that the 10-day extension should be de facto increased to 12. It is vital that there be some power to extend. I would be content if the Government chose to put in a form of words that made it clear that good cause must he shown before an extension was granted. That is implied in my amendment and I would have no objection to making it express. It is not intended to be, and I believe that it is not, a charter for the indefinite delaying of hearings about fines. I disagree with what the noble Baroness said. I feel strongly on this issue and therefore ask for the opinion of the House.

6.11 p.m.

On Question, Whether the said amendment ( No. 28) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 127.

Division No. 4
CONTENTS
Addington, L. [Teller]	Maddock, B.
Allenby of Megiddo, V.	Methuen, L.
Barker, B.	Michie of Gallanach, B.
Bradshaw, L.	Miller of Chilthorne Domer, B.
Clement-Jones, L. Fears, L.	Newby, L.
Geraint, L.	Northover, B.
Goodhart, L. [Teller]	Oakeshott of Seagrove Bay. L.
Hamwee, B.	Perry of Walton, L.
Jacobs, L.	Rennard. L.
Livsey of Talgarth, L.	Rodgers of Quarry Bank. L.
Mackie of Benshie, L.	Roper, L.
McNally, L.	Russell, E.
	Sandberg, L.

Scott of Needham Market, B.	Tordoff, L.
Sharp of Guildford, B.	Wallace of Saltaire, L.
Smith of Clifton, L.	Walmsley, B.
Thomas of Walliswood, B.	Williams of Crosby, B.

NOT-CONTENTS
Acton, L.	Hoyle, L.
Ahmed, L.	Hughes of Woodside, L.
Alli, L.	Hunt of Chesterton, L.
Alton of Liverpool, L.	Hylton, L.
Andrews, B.	Janner of Braunstone, L.
Archer of Sandwell, L.	Jones, L.
Ashton of Upholland, B.	Jordan, L.
Bach, L.	King of West Bromwich, L.
Barnett, L.	Lea of Crondall, L.
Bassam of Brighton, L. [Teller]	Lipsey, L.
Berkeley, L.	Lockwood, B.
Bernstein of Craigweil, L.	Macdonald of Tradeston, L.
Bhatia, L.	McIntosh of Haringey, L.
Blackstone, B.	McIntosh of Hudnall, B.
Bragg, L.	MacKenzie of Culkein, L.
Brennan, L.	Mallalieu, B.
Brooke of Alverthorpe, L.	Masham of Ilton, B.
Brookman, L.	Mason of Barnsley, L.
Brooks of Tremorfa, L.	Massey of Darwen, B.
Bruce of Donington, L.	Merlyn-Rees, L.
Cameron of Lochbroom, L.	Milner of Leeds, L.
Campbell-Savours, L.	Mitchell, L.
Carter, L.	Morgan, L.
Christopher, L.	Morgan of Huyton, B.
Clarke of Hampstead, L.	Morris of Aberavon, L.
Clinton-Davis, L.	Morris of Manchester, L.
Corbett of Castle Vale, L.	Nicol, B.
Crawley, B.	Palmer, L.
Darcy de Knayth, B.	Parekh, L.
Davies of Coity, L.	Patel of Blackburn, L.
Dean of Thornton-le-Fylde, B.	Paul, L.
Desai, L.	Pendry, L.
Dixon, L.	Peston, L.
Dormand of Easington, L.	Pitkeathley, B.
Dubs, L.	Plant of Highfield, L.
Eatwell, L.	Prys-Davies, L.
Elder, L.	Puttnam, L.
Evans of Parkside, L.	Ramsay of Cartvale, B.
Evans of Temple Guiting, L.	Randall of St. Budeaux, L.
Falconer of Thoroton, L.	Rendell of Babergh, B.
Faulkner of Worcester, L.	Richard, L.
Filkin, L.	Rooker, L.
Fyfe of Fairfield, L.	Sainsbury of Turville, L.
Gale, B.	St. John of Bletso, L.
Gibson of Market Rasen, B.	Sawyer, L.
Gilbert, L.	Scotland of Asthal, B.
Golding, B.	Sheldon, L.
Goldsmith, L.	Simon, V.
Gordon of Strathblane, L.	Smith of Leigh, L.
Goudie, B.	Stone of Blackheath, L.
Gould of Potternewton, B.	Sutherland of Houndwood, L.
Graham of Edmonton, L.	Symons of Vemham Dean, B.
Greenway, L.	Temple-Morris, L.
Grocott, L. [Teller]	Thornton, B.
Harris of Haringey, L.	Tomlinson, L.
Harrison, L.	Turner of Camden, B.
Hilton of Eggardon, B.	Varley, L.
Hogg of Cumbemauld, L.	Walker of Doncaster, L.
Hollis of Heigham, B.	Warwick of Undercliffe, B.
Howarth of Breckland, B.	Whitaker, B.
Howe of Idlicote, B.	Whitty, L.
Howells of St. Davids, B.	Williams of Elvel, L.
Howie of Troon, L.	Williamson of Horton, L.
	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.21 p.m.

[Amendments Nos. 29 to 35 not moved.]

Schedule 7 [Minor and consequential amendments]:

Baroness Anelay of St Johns

moved Amendment No. 36: Page 92, line 40, after "Wales" insert "within 12 nautical miles of the coast The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 37. I tabled the amendments to clarify uncertainties that were raised as a result of comments made on Report. when the noble Lord, Lord Bassam of Brighton, moved a group of 128 government amendments in one block. The House was not given an explanation of the individual amendments at that stage. The Minister said that they were minor and consequential and that there had been careful checking. However, with his usual admirable candour, he went on to add: No doubt we shall find things that we should prefer not to find at some stage".—[Officia/ Report, 12/5/03; col. 79.] That is the problem. The House then debated at some length the lack of information given by the Minister and objected without success to the first amendment in the group being made.

I should like to put it on the record that objections voiced from these Benches at that stage were in no way a criticism of the draftsmen and draftswomen who prepared the Bill. We recognise two factors. First, as we had anticipated, the Bill was introduced a little earlier in the Government's timetable than they had originally expected, so it was perhaps not as perfect as they had hoped it would be. More particularly, many of the changes in drafting that have occurred since December have come about as a result of the Government listening to the arguments put by noble Lords. They have responded with significant amendments and we are grateful for that.

The question that I raised on Report concerned the Behring Sea Award Act. I raise such questions every time I am asked to consider amendments that affect territorial waters or the boundaries between the waters off England and Scotland. My interest arises because of my Private Member's Bill and the Crime (International Cooperation) Bill. I cannot imagine the noble and learned Lord, Lord Falconer of Thoroton, doing the same when it comes to the Criminal Justice Bill. However, with 90 or so amendments from the Scottish Law Society in the pipeline, who knows what will happen?

I remarked on Report (at col. 81 of the Official Report) that if the Minister was not able to answer my query, I would give him the opportunity to do so at Third Reading. I simply wanted to know what the boundaries were under the terms of the amendments that he tabled.

I should perhaps say something about my amendments, as I complained on Report that the Minister did not say anything about his. Amendment No. 36 defines the waters which the ship is in as within 12 nautical miles of the coast. Amendment No. 37 provides that the extent to which the coast may project into the designated waters should be defined by statutory instrument.

The amendments are rough and ready tools, but they have had the required effect, because since the Report stage the Courts Bill manager, Martin Jones, has written to the noble Lord, Lord Clinton-Davis, on these matters and has sent a copy of the letter to me. Mr Jones states that the government amendment does not alter or affect the jurisdiction of ships that is already provided for in the Behring Sea Award Act. He also says that the amendment ensures that any offences committed on a ship lying off the coast can be dealt with by the court whose district includes or abuts the coast. He goes on to say that the amendment was drafted in pursuance of the policy of giving magistrates' courts national jurisdiction, but that it does nothing to alter the jurisdiction of the British Isles.

I am grateful to Mr Jones for giving the assurance that Scotland and Northern Ireland were consulted and copied in respect of changes to this Act and for any amendments to provisions in Acts that touched on their jurisdiction. If the Minister can confirm that this is the Government's position, then I will be able to thank him and withdraw the amendment. I beg to move.

Lord Bassam of Brighton

My Lords, I am beginning slightly to regret my attention being drawn to the Behring Sea Award Act 1894. I am grateful to the noble Baroness for giving me the opportunity to confirm the words that she read from the official's letter. We are happy to confirm that that is our understanding of the position on jurisdictions.

Jurisdiction over offences committed on foreign or British ships lying off the coast within British territorial waters is, as I am sure the noble Baroness knows much better than me, governed by the Territorial Waters Jurisdiction Act 1878. Therefore, the proposed amendments would allow the altering of the jurisdiction as set out in the Behring Sea Award Act and infringe on the jurisdiction covered by the Territorial Waters Jurisdiction Act 1878.

Perhaps the noble Baroness has been misled by the reproduction of Section 521 of the Behring Sea Award Act 1894. The current section is in keeping with much of the legislation passed at that time in that it is in one sentence. The provision has been reproduced to make it easier to read. The words used in paragraphs (a) and (b) of the government amendment replicate the words in Section 521 of the 1894 Act, the only alterations being to remove the local limitations of a court.

I assure the noble Baroness that the government amendment only removes the local limit of courts in which offences on ships can be tried. It would not be appropriate for us to amend that Act any further with this Bill. I hope that with that assurance, the noble Baroness will happily withdraw her amendment.

Baroness Anelay of St Johns

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 37 not moved]

An amendment (privilege) made.

Baroness Scotland of Asthal

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)

Lord Renton

My Lords, I pay tribute to the Minister of State. She has had an tremendous task, which she has performed with devoted care, and she has carefully listened to what has been said in all parts of the House. I also pay tribute to my noble friend Lady Anelay, who is not a lawyer, but who has shown great skill and understanding. We owe much to the noble Lord, Lord Goodhart, who has shown great initiative and played a valuable part. This is a historic Bill, which makes a major change in our legal system. It transfers the supervision of our magistrates' courts from the Home Secretary—I spent four and a half years in the Home Office with some responsibility for this matter—to the Lord Chancellor, and wisely so. I said on Report that there had been such enormous changes by the Government at that stage—there have been more at this stage—that we should be given a little more freedom at Third Reading than we generally have. However, I understand that there is anxiety to pass the Bill as soon as possible so that it may go to another place. I shall not therefore say any more.

Lord Goodhart

My Lords, I join the noble Lord. Lord Renton, in thanking the Minister. She handled the Bill with great skill, effectiveness and care. I am grateful that the Government listened on a number of issues. The Bill leaves this House a better Bill than when it arrived.

Baroness Anelay of St Johns

My Lords, I am going to risk the wrath of the usual channels because the noble and learned Lord, Lord Williams of Mostyn, asked us not to offer congratulations at this stage, but who could resist? I agree with the comments of my noble friend Lord Renton and the noble Lord, Lord Goodhart, about the approach of the noble Baroness, Lady Scotland, who was assisted by the noble Lord, Lord Bassam of Brighton. Substantial changes have been made to improve the Bill. When it goes to another place, it will still have a job to do. I look forward to reading the deliberations in another place.

Baroness Scotland of Asthal

My Lords, none of this could have been achieved without my noble friends on the Benches opposite, including the noble Lord, Lord Goodhart. It has been a great pleasure to work with such industry coming from all sides of the House. The Bill goes to another place in a better order. It speaks highly of this House that the work has been done with such good feeling and in comity.

On Question, Bill passed and sent to the Commons.