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Mr. Grieve: I am grateful to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for his comments,
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which echo the reasons why I saw fit to highlight the issue. I also agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes). Subject to those matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 25, in page 4, line 37, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Leslie: I spoke earlier about the creation of the new judicial leadership roles and how, in clause 8, the head and deputy head of criminal justice are being created. I do not feel that I need to comment further.

Mr. Grieve: I welcome the creation and formalisation of the positions of deputy heads. In practice we have had a deputy head of criminal justice. There is ample evidence to show that that post was badly needed because of the over-burdening of the Lord Chief Justice with administrative work and the management of the courts. A deputy head of family justice has recently been created and I have no doubt that that is a desirable move as well. The formalisation of those posts is a sensible move, which I welcome.

Question put and agreed to.

Clause 8, as amended, ordered to stand part of the Bill.

Clause 9

Head and deputy head of family justice

Amendment made: No. 26, in page 5, line 7, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. John Bercow (Buckingham) (Con): I hope I am not too late to ask the Minister a question about subsection (3), which at least in part replicates a provision of clause 8. I do not feel the need to expatiate at length on this important matter. I know that you,   Mrs. Heal, will be relieved by that, as will the Minister, my hon. Friend the Member for Beaconsfield (Mr. Grieve) and representatives of the Liberal Democrats. It is purely a quizzical inquiry on my part.

Subsection (3) tells us that the Lord Chief Justice must not appoint a person under subsection (2)—that is, a deputy head of family justice—unless two conditions are met. One of those conditions is that the Minister has been consulted. I cannot criticise the subsection on the grounds that it is verbose. It is not. It is extremely short and pithy. However, I would welcome an explanation from the Minister as to exactly what that consultation must embrace. Is it a case of consulting the Minister and being guided by him or her, or is it simply a formal process of informing the Minister of the wish of the Lord Chief Justice, satisfying the Minister that that person is not of suspect character, and the decision then resting? I should like to be clear about what exactly is entailed. It is a very innocent inquiry, as are most of my inquiries, Mrs. Heal, as I am sure you will testify.
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1 pm

Mr. Leslie: The hon. Gentleman is indeed exceptionally innocent and we love him for that, or at least I used to think that it was an endearing characteristic. Clause 9(3) contains the requirement for the Lord Chief Justice to consult the Lord Chancellor on who may be a suitable person for appointment as deputy head of family justice. It is apposite that the hon. Gentleman raises that matter because, at many other points throughout the consideration of the Bill, we will look at the difference between consultation and concurrent agreement between the Lord Chief Justice and the Lord Chancellor. The concordat between the two has in many ways framed the partnership that forms so much of the Bill.

In short, consultation does not require the Lord Chancellor or the Lord Chief Justice to do what the other expressly wishes to happen—it is a consultation—but the spirit of partnership will prevail. There will be an expectation that the one will seriously consider the views of the other party. Ultimately, however, the decision, as the clause sets out, rests with the Lord Chief Justice. I hope that that helps the hon. Gentleman to elaborate on that point, and I am grateful to him for raising it.

Mr. Bercow: I am satisfied.

Question put and agreed to.

Clause 9, as amended, ordered to stand part of the Bill.

Clause 10

Powers to make rules

Question proposed, That the clause stand part of the Bill.

Mr. Leslie: Clause 10 introduces schedule 1, which provides for the transfer and amendment of functions relating to rule-making powers that are not made by rule committees but which are currently conferred on the Lord Chancellor alone. The making of rules of procedure for courts is clearly a judicial matter and the power will transfer to the Lord Chief Justice as detailed in schedule 1. However, the Lord Chancellor must have involvement in rules that may impact on his duty to ensure the efficient running of the administration of the court system. Therefore, as agreed with the Lord Chief Justice, his concurrence will be required.

The Lord Chancellor will also have a more general power to require changes to be made to existing rules, or to make new rules to achieve a desired outcome. That mirrors the proposals for rules made by rule committees.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Schedule 1

Powers to make rules

Amendments made: No. 27, in page 54, line 12, leave out 'Minister' and insert 'Lord Chancellor'.

No. 28, in page 54, line 24, leave out 'Minister' and insert 'Lord Chancellor'.

No. 29, in page 54, line 25, leave out 'Minister' and insert 'Lord Chancellor'.

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No. 30, in page 54, line 26, leave out 'Minister' and insert 'Lord Chancellor'.

No. 31, in page 54, line 29, leave out 'Minister' and insert 'Lord Chancellor'.

No. 32, in page 54, line 30, leave out 'Minister' and insert 'Lord Chancellor'.

No. 33, in page 55, line 3, leave out 'Minister' and insert 'Lord Chancellor'.

No. 34, in page 55, line 9, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Mr. Leslie: I beg to move Government amendment No. 490.

The First Deputy Chairman: With this it will be convenient to discuss Government amendment No. 370.

Mr. Leslie: These are purely technical amendments to schedule 1 and are consequential to amendments made elsewhere in the Bill in relation to the Lord   Chancellor's rule-making powers. Amendment No. 490 to section 5 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1996 clarifies that the rule-making power under section 5(1) of the Act is to be exercisable in accordance with the rule-making procedure under section 5(6), rather than the procedure under section 5(2).

Section 65(3) of the Mental Health Act 1983 relates to the exercise of jurisdiction of mental health review tribunals, subject to rules made by the Lord Chancellor under that Act. The Bill currently repeals the reference in subsection (3) to rules made "by the Lord Chancellor". Following reinstatement of the Office of Lord Chancellor, that reference will remain correct, and amendment No. 370 ensures that it is not repealed. I hope that these technical changes will stand in the Bill.

Mr. Beith: It is perhaps an opportune moment to point out that, whereas schedule 1 makes provision for the Lord Chief Justice or a judicial officer nominated by the Lord Chief Justice with the agreement of the Minister to make designated rules, the legislation that went through the House like a dose of salts yesterday goes in the opposite direction and gives the Lord Chancellor the power to make rules, subject to consultation with the Lord Chief Justice in matters relating to the subject matter of that Bill.

The schedule applies only in England and Wales. To exercise any rule-making power in relation to Northern Ireland, the Lord Chancellor has to bring forward a statutory instrument, which I think requires an affirmative order. The situation in Scotland is different again, in that he has no power to make rules and indeed the Government have no power to enforce upon the Court of Session any particular set of rules. It is a bit puzzling that, on Monday, we gave the Lord Chancellor responsibility to make rules subject to consultation with the Lord Chief Justice, while on Tuesday we are affirming that it is the Lord Chief Justice who makes rules subject to the agreement of the Minister.
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Perhaps the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie), could reflect on that point and throw a little light on the situation.

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