Courts Bill [Lords]

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Mr. Heath: I thank the Minister for accepting the amendment, and I agree with his redrafting of it.

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Amendment agreed to.

Question proposed, That this schedule, as amended, be the First schedule to the Bill.

Mr. Heath: I shall be brief. I should like to draw the Minister's attention to the formulation that is used in paragraph 2(c) and (d). If I remember his words correctly, he said that that was terribly vague and the Lord Chancellor's having to nominate persons who appeared to him to be representative of a particular area could not possibly work in practice. I cannot remember all the arguments that he adduced in talking down my amendment earlier. I am sure that he has those somewhere in his notes.

Question put and agreed to.

Schedule 1, as amended, agreed to.

3.15 pm

Clause 5

Functions of courts boards

Mr. Heath: I beg to move amendment No. 115, in

    clause 5, page 4, line 3, after 'concerned,', insert—

    '( ) in particular, to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his duty under section 21 in relation to the courts with which the board is concerned,'.

The Chairman: With this it will be convenient to discuss the following:

Amendment No. 112, in

    clause 5, page 4, line 3, leave out 'and'.

Amendment No. 113, in

    clause 5, page 4, line 5, at end insert


    (c) to perform any other function which the Lord Chancellor may prescribe by statutory instrument laid before, and approved by a resolution of, each House of Parliament.'.

Amendment No. 114, in

    clause 5, page 4, line 20, at end insert—

    '( ) The Lord Chancellor must prepare and issue to the boards guidance about how they should carry out any function prescribed by order under subsection (1)(c).'.

Mr. Heath: The amendment would beef up the functions of the courts boards just a little bit. There has rightly been a considerable amount of discussion, both in another place and outside, about what exactly would be the functions of the courts boards and to what degree they would have any management functions or whether they are merely sounding boards with little consequence in affecting the Lord Chancellor's decisions. The amendment would seek to make it an explicit function of the courts boards to consider how the Lord Chancellor exercises his functions under clause 21.

Clause 21—''Duty to consult lay justices on matters affecting them etc.''—says:

    ''The Lord Chancellor must take all reasonable and practicable steps . . . for ensuring that lay justices acting in a local justice area are kept informed of matters affecting them in the performance of their duties, and . . . for ascertaining their views on such matters.''

That is a kind of lock—a lock on the Lord Chancellor—to ensure that the courts boards have a handle on whether the systems, which the Minister is

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putting in place under the Bill, will have the desired effect. That is a sensible proposal. If the courts boards had the duty of oversight, they could take soundings from the local justice areas in their purview and talk to local magistrates and people who use the courts. If it seemed as though it was all going pear-shaped or that the Government were not behaving as the Minister or hon. Members hoped, there would be, in executing their duties under the Bill, an explicit mechanism for the courts boards to make recommendations to the Lord Chancellor. Incidentally, that would also be for the benefit of Members of Parliament and others who may be able to apply pressure on the Lord Chancellor regarding how he exercised such duties. Amendment No. 115 is a fail-safe mechanism that would lock together the various bits of the Bill and give the courts boards an effective function.

Three other amendments in the group hang together. No. 112 is simply a drafting amendment. No. 113, however, is the operative one, which would allow the Lord Chancellor, through a properly debated order in the House, to extend the functions of the courts boards. Those bodies are too valuable for them not to be used. Debates in another place have established more precision about what the courts boards would do, but the Bill is still light on the functions that they may perform. I want to provide a clear mechanism through which the Lord Chancellor could consult and listen to people once the boards are operating and extend the functions to include management functions, making that explicit by order. Although the courts boards are not executive bodies, they should have a managerial role in the operation of the local courts. If that is to happen, the Lord Chancellor must give guidance, which is the purpose of amendment No. 114.

Stephen Hesford (Wirral, West): Does the hon. Gentleman agree that the amendment would be too prescriptive?

Mr. Heath: No, I do not. The bodies can perform only the functions that are ascribed to them by law. I do not want specifically to set out every dot and comma of what the courts boards should do, but they have a vague function under the Bill. Most of the magistrates who have taken an interest in the measure feel that the courts boards would be better bodies were they to have better prescribed functions and duties within the system. I am trying to make provision for that.

The hon. Gentleman is worried that the Lord Chancellor might use the powers to over-prescribe, but that is always a possibility when a power is given to a Secretary of State under secondary legislation. We have the safeguard, however, of proper parliamentary scrutiny, rather than perfunctory scrutiny. I must assume, therefore, that the Secretary of State, in exercising those functions, and Parliament, in scrutinising them, will make a proper job of it. The risk is that they would not. I accept the hon. Gentleman's point that we cannot legislate for the over-prescriptive qualities of future Secretaries of State or the under-performance of future Parliaments, but that is inherent in our system.

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Stephen Hesford: The hon. Gentleman and I have sat in Committee on many occasions when the measures that he proposed were criticised by Opposition Members for leaving powers open for prescription and arguing for descriptions of certain functions under the Bill. Why is he not arguing for that now? What does he have in mind for the functions?

Mr. Heath: It is a fair criticism. We have often said that, when possible, matters should be covered by primary legislation. I still hold that view. However, the bodies under discussion are new. Their function is not yet prescribed clearly as an initial function, even by the Lord Chancellor. For me to add functions by definition to the Bill when I do not know what the Secretary of State or the Lord Chancellor already has in mind for the bodies would be premature. When the bodies are up and running, they will evolve and seek functions and powers for which there is not provision within the arrangements. It would be wrong to prejudge them.

I am not an expert in such matters, but I understand the arguments that have been advanced forcibly by those who currently run the magistrates courts committees. They consider that, as of yet, such matters are insufficiently defined and that more exploration needs to take place to find out what the bodies could usefully do to improve the system. Were I giving powers to the Secretary of State, I would be worried, but the powers will go through the Secretary of State to the courts boards. I have more confidence in them.

I hope that I have made myself plain. I have two things in mind. First, the intention of amendment No. 115 is to lock together the courts boards and the local justice areas so that feedback ensures that what everyone wants happens. Secondly, we must allow for a growth in the functionality of the courts boards, so that they can undertake tasks to which I think they will aspire to, but which are not specified in the Bill. Taken together, that will build on what the Minister is proposing for the courts boards and what has been helpfully improved by the debates in another place.

Mr. Hawkins: I can be brief in responding to the amendments tabled by the Liberal Democrats. I have more sympathy with amendment No. 115, which would add a specific scrutiny power for the boards to look at how the Lord Chancellor would be discharging his duties under clause 21, than I do with amendments Nos. 112, 113 and 114. I am always a little chary of plans to encourage a new bureaucratic body to do more, but I understand the spirit of what the hon. Member for Somerton and Frome is suggesting. I am sure that he is right that the courts boards will aspire to do more. Whether that is entirely a good thing or something that we should be encouraging in the Bill under his further three amendments I am not sure, but I shall listen with interest to what the Minister has to say about that.

I can see a big advantage in amendment No. 115 because, as the hon. Gentleman says, it would be a helpful addition in the spirit of what was discussed in another place. It would add to clause 5(1)(a) a further scrutiny power for the boards in respect of the Lord Chancellor. I am content to support the amendment,

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but I am agnostic about the other three. I shall wait to hear the Minister's response to the case made by the hon. Member for Somerton and Frome.

I want to remind the Committee that it is a surreal exercise to be discussing powers that will be given to and exercised by someone holding a post that the Government intend to abolish. That is true of almost every clause in the Bill. We do not want to continue such a debate throughout our proceedings, but it is pertinent to ask: can the Minister shed light on whether some of the powers might be exercised by a Secretary of State for Constitutional Affairs or a Secretary of State in another Department?

I would not be happy if many of the powers that have been traditionally associated with the Lord Chancellor were in 18 months' or three years' time suddenly transferred overnight in the Government's planning to the Home Secretary, for example. That is a worry. I have been talking to my hon. Friends about the matter and we were wondering whether some powers might be better exercised by senior members of the judiciary, rather than a Lord Chancellor who is not really a Lord Chancellor or may not be a Lord Chancellor in 18 months' or three years' time.

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