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Mr. Grieve: I endorse what the right hon. Member for Berwick-upon-Tweed (Mr. Beith) has said. It is central to the Government's proposals, as I see them embodied in this Bill, that there should be no suggestion of political ministerial interference in the way in which rules of court are drawn up. The Government were certainly proposing yesterday a form of judicial process for dealing with those against whom there was suspicion of being implicated in terrorism. It is very strange that in yesterday's Bill the formula that was proposed for the rules being made should be so different from the one the Minister is now properly putting forward.
I hope that the Minister will be able to respond to that point. It seemed axiomatic from the presence on the Front Bench yesterday of the Under-Secretary of State for Constitutional Affairs, the hon. Member for Tottenham (Mr. Lammy), that there had been at least discussion with the Department for Constitutional Affairs in relation to yesterday's anti-terrorism Bill. I hope that the Minister will take the opportunity, as we are in a discursive frame of mind, which perhaps yesterday was difficult to pursue, to explain why he is going down this sensible route, while in an area where it would appear that a judicial process of some description is being set up, he is not following it.
Ross Cranston (Dudley, North) (Lab): I think that the correct position is that, under the Bill that was considered yesterday, the Lord Chancellor has discretion to formulate the first set of rules, but under schedule 1 to this Bill, if the Lord Chancellor does not do that, those rules will be made in the ordinary way. Certainly, subsequently, once those rules are launched, they will be dealt with by amendment and by substitution in the ordinary way. The argument that is being advanced is not relevant to the Bill that we are considering.
Mr. Beith: I encourage my good colleague on the Select Committee on Constitutional Affairs and the Minister to reflect on one further point. In order to achieve what the hon. and learned Gentleman has just described for the purposes of the Prevention of Terrorism Bill, the Lord Chancellor could have simply relied on the schedule that we are now discussing. I do not understand why it was felt necessary to include those provisions yesterday. Paragraph 5(1) of schedule 1 allows the Minister to give the Lord Chief Justice
"written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."
That seems to go directly to the situation that we have in the other Bill. The Lord Chancellor may be concerned that certain kinds of evidence need protection and therefore the rules of the court may have to preclude the person who is the subject of the proceedings being fully aware of the evidence against him, or even of what he is charged with or described as having done. A specified purpose could be put in the notice. In order to protect national security, the rules must make provision for certain parts of the evidence not to be disclosed. That is
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quite a controversial provision. It did not need the sledgehammer of yesterday's legislation to do that, because the Minister has provided for it in the schedule. I refer again to paragraph 5(1):
"This paragraph applies if the Minister gives the Lord Chief Justice . . . written notice that he thinks it is expedient for designated rules to include provision that would achieve a purpose specified in the notice."
The First Deputy Chairman: Order. I remind hon. Members that we are today discussing the Constitutional Reform Bill.
Mr. Leslie: I understand that there is a sort of overflow of feeling from yesterday's proceedings on the part of some hon. Members, although I have to admit in my defence that I was not the Minister for the Prevention of Terrorism Bill. Therefore I will not be drawn into that, not least because we are talking about Government amendments Nos. 490 and 370, which are pretty far removed from that point. However, I understand the issue that has been raised.
My hon. and learned Friend the Member for Dudley, North (Ross Cranston) is correct. He rightly explained that the arrangements that are set out in the Prevention of Terrorism Bill, which we discussed yesterday, are special. In any case, my understanding is that the rule-making arrangements in that Bill, for example, are UK-wide, not just England and Wales-wide, and that the same approach is taken with respect to the similar UK-wide rules in the Constitutional Reform Bill. If I am wrong, I apologise in advance to the right hon. Member for Berwick-upon-Tweed (Mr. Beith).
Mr. Beith: The Lord Chancellor confirmed in open session this morning that the powers in the Prevention of Terrorism Bill, as opposed to those that we are discussing now, are not UK wide. That is to say that no Minister has the power to direct the Court of Session to have certain rules. That provision simply does not exist and the Lord Chancellor confirmed as much today, so the Minister may be basing his argument in such a complex area on a mistaken premise.
Mr. Leslie: I will certainly defer to the judgment of my superior, the Lord Chancellor. As one of his junior Ministers, I would not seek to demur from his judgment. My general point, which was not related to the Prevention of Terrorism Bill, was that there are slight differences between UK-wide rule-making arrangements and England and Wales-wide arrangements, and that those are set out in different provisions in the Constitutional Reform Bill. I understand and hear what hon. Members say on that, but ultimately I do not think that that affects the validity of Government amendments Nos. 490 and 370.
Amendment agreed to.
Amendment made: No. 370, page 56, line 26, leave out paragraph 15.—[Mr. Leslie.]
Schedule 1, as amended, agreed to.
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Question proposed, That the clause stand part of the Bill.
Mr. Leslie: The clause introduces schedule 2, to which there are substantive amendments later and which provides for the transfer of functions in connection with practice directions.
As with rules, the making of practice directions for courts and tribunals is clearly a judicial matter and that power will transfer from the Lord Chancellor to the Lord Chief Justice. However, the Lord Chancellor must have some involvement in practice directions 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, the Lord Chancellor's concurrence will be required for making directions.
It would be inappropriate, however, for the Lord Chancellor to have a power to intervene in making directions that concern guidance as to the law or the making of judicial decisions. Therefore, his concurrence will not be required for those types of directions. Further, the Lord Chancellor should not have a veto over directions that concern the criteria for allocating judges to hear individual cases. Those are essentially a judicial matter, but about which the Lord Chancellor, as the responsible Minister, should be consulted.
In practice, the power to make directions would usually be delegated by the Lord Chief Justice to the heads of division. Others may make directions only with the consent of the Lord Chief Justice and the Lord Chancellor.
Mr. Grieve: I was going to engage in a small debate on amendment No. 371, which we shall reach in a moment. It would almost be possible to do that now, but, in order to follow properly the rubric, I am happy to restrain myself and simply flag up to the Minister that I shall return to the issue in a moment.
Simon Hughes: I have one question for the Minister that, again, he can answer now or in the next debate. He has alluded to the fact that, as we know, there has been discussion with the judiciary as a whole. Can he indicate whether there are any matters that are the subject of Government amendments today that do not have the agreement of the judiciary? Is there any remaining area of controversy between the Government and judges following all the consultation, particularly in relation to the transfers of powers from one office holder to another, as proposed in the Bill?
1.15 pm
Mr. Leslie: My understanding is that there are no more areas of dispute on amendments to the Bill between the Lord Chief Justice and the Lord Chancellor. After so many months—years, even—of consideration of the Bill, I am glad that we have now achieved consensus with the judiciary on its contents.
Clause 11 ordered to stand part of the Bill.
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