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Mr. Eric Forth (Bromley and Chislehurst): The Minister gave the lie to the difficulties that seem to face everyone who has participated so far in the debate by reminding the House that we are dealing with appointments by the Secretary of State. When the Minister spoke of a truly national service, but with adequate local input, he summarised very well the dilemma that comes through clearly in the schedule with which we are dealing and the amendment that we are considering.

To make sense of the amendment, which refers to paragraph (2)4 of schedule 1, we have to look at the way in which the schedule is structured and so put the amendment into context. Schedule 1 deals with local boards. They are to

consist of a chairman, a chief officer and not less than five other members.

It is worth reminding ourselves that one of the members is to be appointed by the Lord Chancellor from among judges of the Crown court. That is all specific and straightforward enough, and would reinforce the national element of the Minister's desire. Then--here is the key to the matter--paragraph 2(3) states:

The chairman, the chief officer and the other members are to be appointed by the Secretary of State.

So far so good, one would have thought. Quite a key point is made in paragraph 2(4), which states:

Regulations may make provision as to their appointment . . .

This is only a permissive provision; it is not prescriptive to say that regulations "may" make provision as to their appointment. I suppose--unless the Minister tells me otherwise--that it would be perfectly possible under the schedule, certainly in theory, for the Secretary of State to appoint the board members anyway.

Amendment No. 121 says that the regulations made under section 4 "must make provision". However, as paragraph 2(4) of schedule 1 refers only to "may", there

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is a provisionality here--if that is a word--of which we must be aware. The Minister is looking puzzled, and I am open to correction.

Mr. Mike O'Brien: I am not quite sure whether the right hon. Gentleman has read the provision properly or whether I have misunderstood his point. Is he suggesting that the Secretary of State may appoint the persons whom others, such as the Lord Chancellor, are appointing, or is he simply referring to the tenure? Paragraph 3(4) of schedule 1 states:

Regulations may make provision as to the tenure of office of the members (including the circumstances in which they cease to hold office or may be removed or suspended from office).

Mr. Forth: I am grateful to the Minister, but I am looking at schedule 1(2)(4), which states:

Regulations may make provision as to the appointment (including the number, or limits on the number, of members who may be appointed

and so forth. The Lords amendment enhances or elaborates on that provision. As the words used in the schedule are "may make provision," the Lords amendment may never come into effect. The primary regulations may not be made. I put down that marker, which is worth bearing in mind.

We are talking about the procedure whereby most of the members of the board are to be appointed. We know that one will certainly be appointed by the Lord Chancellor, who can only appoint a Crown court judge. That much we know.

The schedule states:

Regulations may make provision as to their appointment

and continues, helpfully, with the words "including the number". That raises some interesting questions about the sort of number that the Minister may have in mind--or the limits on the number. The schedule continues with the words:

and any conditions to be fulfilled for appointment as a member,

which is an important provision. It suggests that the whole matter could be severely prescribed by regulations, thus limiting the options that may be open.

The amendment reads:

Regulations made by virtue of sub-paragraph (4) and coming into force on or after the coming into force of section 4 must make provision--


(a) for the selection procedure for the chairman, the chief officer and other members of the board who are to be appointed by the Secretary of State to include selection panels.

Mr. James Clappison (Hertsmere): Before my right hon. Friend moves on to the role of selection panels, which I apprehend will be his next point, does he share my curiosity about the appointment by the Lord Chancellor of the Crown court judge to the board? I do not dispute the appointment, but why is it to be a Crown court judge and not a member of the lay magistracy? Magistrates have far more experience of dealing with the probation service and see more of its workings than Crown court judges.

Mr. Forth: I have an eye on you, Mr. Deputy Speaker, as I suspect you may be on the point of telling me that that question is not strictly germane to the amendment.

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I am always loth to run foul of you, sir, so I will decline to answer my hon. Friend directly for the moment. I may return to his question.

A sequence of procedures is being built up that I assume is supposed to be helpful. Although the regulations only "may" be made, they must make provision if they are made. In the amendment, we have an apparently helpful addition to the requirement for the selection procedure for the chairman, chief officer and other members of the board, which is, "to include selection panels".

Who will appoint the panels? From my experience, what is often supposed to be a reassurance in such cases is not. If one were cynical--those who know me know that that could never be said of me--one might say that the provision amounts to additional bureaucracy, not to say obfuscation. I will not argue that case. For the moment at least, I will accept the Minister's argument at face value. We are supposed to assume that including selection panels in the process is designed to be helpful and positive, but it gives rise to the question, "Who will select the panels?"

I assume that you, Mr. Deputy Speaker, will agree that that is a very old question in politics. It is all very well trying to establish a mechanism that looks bland, neutral, innocuous or helpful, but one must look behind that. I am supposed to be reassured by the selection panel, which will play a key role in the appointment of the chairman, the chief officer and other members of the board. Who will appoint that panel? I bet I know the answer before the Minister gives it. I would not mind betting that it is the Secretary of State.

Mr. Mike O'Brien indicated assent.

4.15 pm

Mr. Forth: The Minister indicates that I am right. That is not due to any great perspicacity on my part. I just know these things because it is the way the world works, and it is certainly the way this Government work. The Minister is trying to persuade us that selection panels are a good thing, but he will be the one to appoint them--technically it will be the Secretary of State, but in reality it will probably be the Minister

Mr. Hawkins: Does my right hon. Friend agree that the question that he has raised goes back almost to classical times? It concerns the powers of Government and who really guards the guards--quis custodiet again. That issue is particularly relevant for this Government, above all, because they always want to take more power into their hands.

Mr. Forth: I am afraid that that appears to be the case. In deciding who will be on the panel, it is inevitable that a degree of influence--not to say control--will come into the process.

For example, will the Lord Chancellor be consulted by the Secretary of State about the formation of the panel? In that case, the Lord Chancellor will have double the influence. He is already to appoint one member directly. He may even be allowed to appoint members of the panel. It could go as far as that. One immediately sees the difficulty that arises.

Mr. Hawkins: As my right hon. Friend will know, I have a particular interest in what the Lord Chancellor

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may or may not do, as I shadow the Lord Chancellor's Department. Would my right hon. Friend be interested to know that the Lord Chancellor might be consulted behind the scenes, informally. My hon. Friend the Member for Hertsmere (Mr. Clappison) asked whether the appointments should be circuit judges or lay magistrates. It is worrying that it is not clear whether the consultations will be happening behind the scenes, with rumours and messages between Ministers. We want such decisions to be open and transparent, not the result of control freakery, on which, sadly, the Government seem to be bent.

Mr. Forth: I am afraid that I agree that that is the case. I will deal with the relationship between sub-paragraph (4), the amendment and sub-paragraph (5). Of course, the latter states:

Regulations must provide, so far as it is practicable to do so, for the persons appointed to be representative of the local community in the board's area.

I mention that in the context of the selection process. Presumably there will have to be an attempt to develop some knowledge of the characteristics and requirements of each local area to fulfil the requirement in sub-paragraph (5).

I am running ahead of myself. Having identified the problem--or at least the implication about selection panels--paragraph (b) of the amendment states that regulations may be made

in the case of the chief officer--

singling him out--

for the board to be represented on any selection panel . . .

That raises another interesting question. Will the board decide what its representation on the panel will be, or will the Secretary of State decide how the board will be represented?

There could be a conflict. Let us suppose that the Lord Chancellor says, "I insist that it is my appointee on the board who will be the representative on the selection panel." The Secretary of State may say, "No. I will decide which of the board will be represented." The board may say, "No, we want to decide who will represent us on the selection panel."

It is a fair question to ask know how the process will work, since there are some doubts as to that. Guidance from the Minister would be helpful. Having said that, all that will happen is that a final representation will be made to the Secretary of State. It will come as no surprise to old hands at this business that the Secretary of State is going to do it anyway; he is subject only to a recommendation. The board is to be represented on the selection panel making a final recommendation to the Secretary of State--as I read the provision. That seems to be at odds with paragraph (a), which provides that the selection procedure will "include selection panels".

What is to be the role of the selection panels? I infer from the measure that it is only to make a recommendation to the Secretary of State. We know nothing about the composition of the panels; we do not know who will appoint them. However, we know--or I think we do--that all they will do is to make a recommendation to the Secretary of State, who will have the final say.

There is a rather unhealthy circularity in that process. I am not sure how much further forward it takes us. My hon. Friend the Member for Surrey Heath (Mr. Hawkins)

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and the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) were more generous; they said that, while the process might not be perfect, it took us somewhat further. The more I ponder the matter, the less sure I am about that.

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