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Mr. Beith: It is an odd fact, but powers in the Anti-terrorism Crime and Security Act 2001 can be used in relation to any criminal offence that has been committed or may be committed—I presume that fine defaulting may be included—to ask the Revenue for details of people's income and various other information, so long as the request is proportionate to the offence in question.
Mr. Kidney: I am grateful to the right hon. Gentleman for that additional information. To bandy similar information back to him, he may remember that, when we amended the Child Support Act 1991, we introduced new powers on the exchange of information in respect of collecting child support payments. If the right hon. Gentleman is interested, when I receive a reply from my hon. Friend I shall pass a copy to him.
Imaginative ways of taking payments are being pursued in mid-Staffordshire, such as payments over the telephone, credit card payments, online payments and, obviously, meeting the enforcement officer regularly. All those measures are welcome. I suspect that my local enforcement officers will appreciate the slight addition to their powers that has been discussed in the debate so far. I agree with those who says that those powers are not staggeringly new or more extensive, and my local enforcement officers are not that impressed with giving people discounts on their fines, as they see that as an additional complication to their work and they say that their computer programmes would need to be rewritten to deal with it. I would like to people to be pretty certain that, if they do not pay fines, the money will be taken from them, whether on the day of their appearance at court, through payment from their salary, through payment from their bank account, through payment from their benefits, or through payment by way of forfeiture of vehicles. Through those methods, which should be robust, firm and virtually inevitable, I would hope that, in most cases, we could dispense with sending people to prison for not paying fines when they had not received a prison sentence in the first instance, as that was not commensurate with the seriousness of the offence that they committed. At the most severe end, a person can go to prison for not paying their fine for an offence that did not carry a prison sentence as a possible punishment at the beginning. I would therefore like to see us rely less, not more, on the threat of imprisonment for not paying fines.
With those few comments, I wish to welcome the Bill. On its own, it is a fairly modest provision. Together with other reforms currently taking place in Parliament, however, important modernisations of the judicial system are being made, which the public outside will very much welcome.
9.11 pm
Mr. Douglas Hogg (Sleaford and North Hykeham): The hon. Member for Stafford (Mr. Kidney) said in his concluding remarks that this is a modest Bill, which it is. It is also a very technical Bill, and will therefore, I suspect, attract less public interest and attention than it
deserves. As someone who has sat through most of the debate, I recognise that the Bill has been given a substantive welcome by right hon. and hon. Members. It would therefore be churlish of me not to recognise that within the Bill there is material that I should welcome. I am bound to say, however, that there is also a great deal of material in the Bill that I do not welcome. As this is a Second Reading debate, I shall focus on the latter rather than on the former.I want to begin by analysing to a degree what this Bill is about, its nature and its consequences. Let us be clear: this Bill, once passed, will bring about, over time, a significant change to the way in which the law is administered in this country. That process of change will not be driven by Members of the House, however, as this is an enabling Bill in its substance. Any right hon. or hon. Member who has studied the Bill with care will recognise that the instrument of change will be secondary legislation—statutory instruments brought forward by the Lord Chancellor and approved, or not approved, by the House. Once we have passed the Bill, we have put in train a process over which we, the elected Members, will have little control.
The Parliamentary Secretary, in a candid speech of great modesty, said that she could not comment on whether a Minister of Justice will be appointed. I understand that: she is not privy to the Prime Minister's views on this matter. I for one, however, would welcome the appointment of a Minister of Justice, who would take unto himself or herself many of the powers of the Lord Chancellor and the Home Secretary and who would be present in this House. One of the aspects of the Bill that I find most disagreeable and troubling is my certain knowledge that the statutory instruments will be drafted by officials answerable to the Lord Chancellor. We do not—at least, for the most part—have the ability to question the Lord Chancellor. I am perfectly prepared to accept that he had a very distinguished civil practice at the Bar, but he knows next to nothing about the criminal law, and had very little experience of the family division when in practice. Officials—I make no criticism of them—often have very little experience outside their Department. We are also, of course, giving very great powers to the Lord Chief Justice, who is, by definition, unaccountable. The mechanisms for driving forward policy change will be outside our effective control once we have approved the Bill.
It is true that the orders will have to be approved. The House will be familiar with clause 106, which deals with order-making powers. A few of the orders will be subject to the affirmative procedure, but most of them will not. Most will be subject to the negative procedure, and I shall mention one or two of them shortly. In effect, the negative procedure provides no control whatever while the affirmative procedure, which will apply to very few of the orders made under the Bill, will provide precious little control. As the House well knows, a statutory instrument has either to be approved in its entirety or rejected in its entirety. There is no power of amendment. We cannot include new provisions in a statutory instrument. We either approve or reject the lot. That is not a proper way to drive forward substantial change, but that is what the Bill does.
I now turn from the general issues to deal with a few specific points. I recognise that there has been almost a consensus in approving the proposal for the abolition of the magistrates courts committees, but that consensus does not include me. I have had the pleasure of representing a Lincolnshire constituency since 1979 and, in that period, I have been pretty impressed by the way in which the Lincolnshire magistrates courts committee has performed its duty. On any view, there has been real local oversight and real local input. Will the position be substantially better under the new regime so elegantly advanced by the Parliamentary Secretary? I doubt it.
The areas covered by the local justice boards will be determined by the Lord Chancellor, who is not accountable in this House. Why should I assume that he is more concerned about the local delivery of justice—a subject that has never perplexed him in the past—than the Lincolnshire magistrates courts committee? I do not make that assumption.
I then ask myself whether I derive any comfort from the provisions for the courts boards. Who will appoint them? The Lord Chancellor, and is not that splendid? He will appoint every member of the courts boards, but he is not accountable to this House in any sense. When we consider the criteria, we ask whether members could be appointed in a different manner, and, of course, they could. The constitution of the courts boards implies that they will have two representatives of the justices serving on them, so why should the local justices not make those nominations? Why should the judges—the presiding the judge of the circuit, the Lord Chief Justice or perhaps the judges themselves—not be involved in choosing the judges that will serve? Why should the local authorities or another local mechanism not determine the choice of the local representatives? Why should that decision be left to the Lord Chancellor?
I hope that the answers to those questions will be teased out in Committee. However, one thing is absolutely sure. The courts boards constitute a centralised and undemocratic structure. I hope that their composition will be made more democratic, and that they will be given substantially more authority and teeth. However, the proposals, as they stand, provide no compensation to me for the abolition of the Lincolnshire magistrates courts committee.
Much reference has been made in the debate to accessibility to local courts. I agree that it is important that there should be the local delivery of justice. By that we mean a number of things. For example, we mean local courts, and there has been genuine consensus on that. I suspect that there has also been consensus that justice should be affordable. On that point, I am bound to say that I am pretty cautious about clause 92, which deals with the setting of fees. If justice is too expensive, it is not accessible. If you look carefully at clause 92, Madam Deputy Speaker, which I am sure that you have done, you will find that the fees and their scales and rates are determined exclusively by the Lord Chancellor with the consent of the Treasury. Anybody who hears the phrase "with the consent of the Treasury" should be deeply worried because its interests and our interests are not the same.
I happen to agree with Labour Members who said that full recovery is a bad thing, although I was not unduly concerned with the full recovery of court fees when I was a Foreign Office Minister—perhaps I should
have been. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and other hon. Members said, there is a public interest in the proper administration of justice. It is a scandal to run courts on the basis of fees recovered from prospective litigants, yet the Bill provides for that. The amendment made in the other place to provide that the Lord Chancellor should have regard to access to justice does not clearly state that a policy of full recovery is wrong in principle, so I hope that the Bill will be amended in Committee to reflect that fact.As the Bill stands, the Lord Chancellor may do as he pleases on fees, subject to the consent of the Treasury, which is no safeguard. It is true that he will have to consult but whom, pray? The judiciary. He will not have to consult the consumer and we, the elected representatives, will be cut out of the process because only the negative procedure guards the public against the level of fees. The fees will be set by the Lord Chancellor, who may do as he pleases. The Bill is largely silent on the criteria on which the fees should be fixed, so I am deeply unhappy about the fee-making power.
Part 7 contains rule-making powers and will give judges, lawyers, officials and the Lord Chancellor substantial powers to make rules on criminal law, family law and the civil law. Of course, Bills are always written using careful language, so the Bill says that the rules are concerned with practice and procedure. That offers a great deal of reassurance, I am sure, because anyone who knows the first thing about the law knows full well that there is a marked overlap between practice and procedure on one hand and substantive law on the other. In case hon. Members did not spot that fact, which I am sure that they did, they will realise from clauses 73 and 80 that the Lord Chancellor, no less, is enabled in terms to revoke, repeal or amend any enactment as a consequence of rules passed or to facilitate the rules.
Let us be clear about this. The Lord Chancellor, unaccountable and unquestioned by hon. Members as he is, may change statutes passed by this House to facilitate a rule. I happen to think that that is not a good idea. The Parliamentary Secretary may take a different view and I am sure that the Whips will ensure that her view prevails. However, the provision makes nonsense of the parliamentary process, which I am sure that she will come to appreciate in time.
We now reach the little matter of third party costs, which is covered by clause 93 and has been dealt with by several hon. Members. I for one am perfectly willing to accept that on occasion it would be right to make a substantial costs order against a third party guilty of misconduct. Perhaps the most obvious example is that of newspapers which have paid witnesses who have caused cases to be aborted. There have been a number of recent examples of that. One thing is wholly plain: if we are going down that road, we would do well to prescribe in pretty clear terms in the Bill the classes of misconduct that will attract an order of third party costs.
Naturally, being a keen-minded chap, I asked myself what is in the Bill on those terms. The answer is nothing at all. It is not possible to tell what classes of misconduct will attract a third party costs order. So I had to ask:
how will the costs order be quantified? That cannot be found out from the Bill either. I then had to ask: what right has the third party to be heard or to be represented? But that cannot be found out because all those matters, at least to some degree, are to be prescribed by regulation. Again the Lord Chancellor will lay down the regulations and again they will not be the subject of effective parliamentary control. Indeed, so far as the regulations on misconduct are concerned, all they touch on is what is not misconduct, not what is misconduct. That is a pretty rum way of doing business.I am not trying to pretend that the Bill represents a series of civil liberty issues, as the Criminal Justice Bill did which we recently sent to the other place. I spoke repeatedly on that and it raised important issues of civil liberties and public rights. However, there is much in this Bill that is profoundly unattractive. At the end of the day, it is an enabling Bill. We start the process and once it has started we have lost our control over it. I find that a very undesirable state of affairs.
So when the Committee undertakes its scrutiny of the Bill, I hope that we will make a serious attempt to achieve strong local input into the management and delivery of the criminal justice system. I hope further that the rights and obligations of the individual are defined in the Bill and not left to secondary legislation. To the extent that secondary legislation is inevitable, and I know that it always happens, I hope that there is a strong presumption in favour of the affirmative rather than the negative procedure. We should be very, very cautious about allowing Ministers or officials to change substantive law—enactments—by way of regulation.
I am afraid that, despite the chorus of approval for much of the Bill, I remain deeply sceptical about its main purpose and nature. Left to myself, it would not get a Second Reading.
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