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Viscount Tenby: I support Amendments Nos. 190 and 195, so ably proposed by the noble Baroness, Lady Anelay. In a sense these are "short straw" amendments. They come at the end of a very long day on which everyone, not least the ministerial team, has withstood a battering ranging from hanging by silk cords to the interception of private telephone calls. My sympathies are entirely with them.
These are important amendments and should not be passed over lightly. I have been a magistrate for many years and I am now on the supplementary list, so I have to declare an interest. I must also declare an interest in the sense that I am consulted from time to time by the Magistrates' Association and also by the Justices' Clerks' Society of England and Wales. So in a sense I am split two ways.
The magistracy has undergone something of a revolution in recent years. I do not refer to the increased training burden occasioned by the volte-faces of previous administrations but of its resolve to ensure that those who sit on the Bench work to the highest standards, are properly trained in accordance with modern techniques, and are annually assessed on their competence in a whole range of appropriate skills.
When the programme started (I remember it very well) there were many hiccups and not a little wringing of hands when some magistrates--often, it has to be said, the senior ones--were found not to be quite up to snuff. But the system is now up and running well and should be used in matters such as this.
Not every magistrate who sits on the Bench is capable of being a chairman. I hope that we shall not take that for granted. Some, indeed, do not want to be chairmen, and find their fulfilment in being good "wingers". And good "wingers" are worth their weight in gold and are greatly to be treasured. If one is a chairman sitting on a Bench, one normally has two "wingers" with whom to conduct business. If the system, rightly, decrees that to be a chairman requires assessment and ratification by a duly appointed chairmanship committee, how much more essential it is that that committee should decide who is capable of sitting alone in the chair. It is absolutely vital.
Some noble Lords--not, I hope, the Minister and his colleagues--may feel that this is merely a technical point. I assure them that it is not, and that the suggested experiment will stand or fall by it.
I now turn briefly to Amendment No. 195, which carries my name, although I am also sympathetic to the general principle contained in Amendment No. 194 in the same field. The noble Baroness expertly enunciated all the various points. I shall therefore not go over them at this late hour. I have already indicated my wholehearted support for speeding up the criminal justice process. It is absolutely vital.
But--yes, my Lords, there is always a "but"--the objections to some of the duties being performed by a single justices' clerk were clearly enunciated by the noble and learned Lord the Lord Chief Justice at Second Reading. It would therefore be almost presumptuous of me to discuss those duties again. I shall refer briefly to just one; namely, the ordering of a pre-sentence report. This is so clearly a judicial function that it is difficult to see how the authors of the Bill could have regarded it as anything else.
In ordering such a report, the court has to make it clear whether the matter is so serious that any future court would be likely to implement a custodial sentence or, if it is serious enough, that any future court would be likely to implement a community sentence. That is a judicial direction given by three magistrates as to the future disposal. Although that future court might be disposed to vary the direction as a result of some fact brought to light by the report, it remains a direction.
I cannot leave this area without referring to something which is not the subject of an amendment but to which I briefly referred at Second Reading. I did not put an amendment down since I was unsure whether I would be able to be here today on medical grounds. At the time of Second Reading I expressed the hope that when or, I suppose I should say, if this part was enacted, the order would make it clear that only clerks and their deputies would be so entitled and not assistant clerks. I should be most grateful to the Minister for an assurance on the point.
Lord Goodhart: I rise to express strong support for the amendments which have been moved by the noble Baroness, Lady Anelay of St Johns. In doing so, I believe it would be convenient, particularly in view of the lateness of the hour, if I spoke now to Amendment No. 194 which stands in my name, as well as that of my noble friend Lord Dholakia and the noble and learned Lord, Lord Ackner. There are also four amendments, Amendments Nos. 191, 192, 193 and 196, which stand in the name of my noble friend alone. I do not propose to say anything specific about them, but it might be helpful if they were treated as being included in the debate.
The incentive for moving Amendment No. 194 came entirely from the speech of the noble and learned Lord the Lord Chief Justice on Second Reading. Speaking for myself, I am entirely happy with the powers being conferred on a single justice under Clause 40(1). But the criticisms of the powers conferred or potentially conferred on justices' clerks by Clause 40(2) were extremely impressive. During Second Reading, the noble and learned Lord the Lord Chief Justice, at cols. 561 and 562 of Hansard for 16th December 1997, pointed to paragraphs (b), (c) and (j) of subsection (1) as being "formal, administrative acts" which are properly exercised by a clerk. I suspect he would include subsection (1) paragraph (l), production of a driving licence, in the same category. But he also strongly criticised the power for remanding an accused in custody pending medical report under paragraph (f) and the provisions
of paragraph (e). Without going through each of the paragraphs in detail, it is clear that a number confer powers which should not be exercised by justices' clerks.Amendment No. 194 standing in my name and Amendment No. 195 contain different lists of powers that are properly exercised by justices' clerks. That is a matter of detail and I do not suggest that my list is the exclusively correct list. I hope that the Government will be prepared to agree that there is an important matter of principle here, that the powers of justices' clerks should be restricted under Clause (40)(2) and that the appropriate method of dealing with the matter would be by consultation before the Report stage of the Bill with the Magistrates' Association, the Justices' Clerks' Society and the Lord Chief Justice.
11 p.m.
Baroness David: With the leave of the Committee, it may be sensible for me to speak now to my Amendment No. 196A, which is on the same subject of the possible powers given to the justices' clerks. My amendment would prevent the delegation to a justice's clerk of the power to remand an accused in custody.
Clause 40 authorises a number of the powers of the magistrates' court to be exercised by a single justice of the peace or by a justice's clerk. We agree that there is a case for delegating some of these powers to justices' clerks. For example, powers to extend bail; to mark an information as withdrawn; to discharge a defendant when the prosecution offers no evidence and to appoint (with the consent of the prosecution and defence) an earlier time for the appearance of a defendant on police bail. However, we consider that powers which substantially restrict the liberty of the defendant--for example, to remand the defendant in custody--should not be delegated to justices' clerks, but should be subject to the safeguards of a judicial court procedure.
The clause as it stands would enable justices' clerks to remand an accused in custody when ordering a medical report or when adjourning an early administrative hearing. In its briefing on the Bill, the Justices' Clerks' Society states in relation to this clause,
- "Clerks do not wish to be concerned with remands in custody".
This amendment would ensure that clerks were not involved in making decisions of that kind, which restrict the liberty of the subject.
It seems to me that if the Justices' Clerks' Society is not agreeable to what is proposed in the Bill, the Government should take heed. I too am a JP on a supplemental list and therefore have had some experience of dealing with justices' clerks and
magistrates' courts. I feel strongly that this group of amendments is important and I hope that the Minister will listen sympathetically.
Lord Williams of Mostyn: It may be that the noble Lord, Lord Henley, was right to de-couple Amendment No. 195 from Amendment No. 190 as it turned out. We have had a useful panoramic review of Amendments Nos. 190 to 194, 196, 196A and 195, and it is a little difficult to answer Amendments Nos. 190 and 195 because the intervening amendments really bite on them, as was indicated in the review which the noble Baroness gave us.
Perhaps I can deal separately with Amendment No. 190 because that seems to be in a category of its own. Essentially it requires that a single justice of the peace would need the approval of the bench chairmanship committee to exercise powers in Clause 40. We agree with the thrust of the point; that is, that it is important that the Clause 40 powers should be exercised only by justices or clerks who are suitably experienced and qualified. The only point of departure is that we do not believe that there is any need for a statutory requirement for justices to be approved. There is no such requirement at the moment in respect of quite wide powers which can already be exercised by a justice sitting alone. We believe it is matter of good practice and does not need to be enforced through legislation. I believe that deals distinctly with Amendment No. 190.
There are then the grouped amendments to which the noble Lord, Lord Goodhart, spoke--Amendments Nos. 191 to 194 and 196--together with Amendment No. 196A in the name of my noble friend Lady David. I do not believe that justice will be done to those concerns at this time of the night, with such a thin Committee. I am bound to say, without giving a commitment, that when the noble Lord, Lord Goodhart, said that it might be time to draw some threads together and further revisit this in consultation with the Lord Chief Justice, the Magistrates' Association and the Justices' Clerks' Association, I felt that there was virtue in that. We want to obtain the best outcome, rather than to make any party political points--which I hasten to add no one has. I do not believe that we will do justice to this, though I shall do my best to deal with the points that have been raised.
I start with Amendment No. 193. This amendment allows prosecution or defence to prevent a single justice from bringing forward the date of a hearing to which the defendant had been bailed by the police. Obviously, common sense would imply that a hearing should not be rearranged for a date when either party will not be ready. But I do not think we really need that in legislation. It is difficult to understand why a magistrate should require the consent of the parties to alter a date originally set by a custody sergeant--not that it has been set by the custody sergeant but has been set without reference to either of the parties. That is the kind of point that may need a little further reflection.
Amendments Nos. 194 to 196 and the starred amendment in the name of my noble friend Lady David, Amendment No. 196A, seek to restrict the powers in Clause 40. Amendment No. 191 goes further and denies to single justices and clerks the power to order a pre-sentence report. I acknowledge the concerns that have been mentioned this evening by those who have experience in this field and I bear in mind the Lord Chief Justice's and the Magistrates' Association's concerns also.
I do not think the point really is whether the powers are administrative or judicial, because justices' clerks already perform, notably in family proceedings, tasks which are plainly judicial. They carry out directions hearings and they order medical examinations. In the letter of 6th February from the Honorary Secretary of the Justices' Clerks' Society to the Lord Chief Justice the point is clearly made. Justices' clerks can carry out directions hearings in the family courts and order welfare reports and medical examinations, including those of an intimate nature. As someone said earlier--who it was I cannot remember--those are plainly not administrative but judicial acts. That is what justices' clerks do at the moment, and I am not aware of any complaint or concern about that.
Mr. Marsh, the honorary secretary, says in the same letter that there is no real reason why, for instance, if a clerk has in the list a person charged with assault occasioning actual bodily harm who pleads guilty, he should not be able to order a pre-sentence report as opposed to transferring the matter to a Bench of justices, simply for them to deal with a request for a pre-sentence report. So I think that all the right is not necessarily on one side of the line in this matter.
The amendments differ but two in particular contain a reference to remanding the defendant in custody. The noble Baroness, Lady Anelay, asked for reassurance. I can say quite adamantly that it is not intended that justices' clerks should be given the power to remand in custody a defendant who hitherto has been on bail. The powers are defined in this way because this is the form in which they are appropriate for a single justice. Under subsection (2)(a) the Lord Chancellor is empowered to specify restrictions or conditions on the powers listed in subsection (1) when they are to be exercised by clerks. One restriction-- I give this undertaking--which would certainly be imposed is on the power to remand in custody a defendant who had previously been on bail.
The amendment of my noble friend Lady David removes for the purposes of delegation to clerks the power to remand in custody. This would mean that a clerk could not remand in custody a defendant who had already been so remanded in custody even where both parties agreed. That goes a little further than any restriction we had in mind; that is, a defendant already in custody and prosecution and defence agree to a remand in custody, which is not unknown, particularly in serious cases. However, I bear in mind the concerns that have been expressed and, in respect of the amendment in the name of my noble friend Lady David, I am certainly prepared to consider that matter.
I dealt with Amendment No. 191 in part by citation from the letter from the Justices' Clerks' Society of 6th February. It would take out the power of a single justice to order a pre-sentence report. It is argued that this forms part of the sentencing process.
That would be a stronger argument if it was always the Bench which was to sentence that requested the pre-sentence report. In practice it seldom happens that the magistrates who request it are also the sentencing Bench in its entirety. If the report is quite often requested by a Bench other than the Bench that sentences, it is not obvious that there is any virtue in requiring three magistrates rather than a single justice to make a request.
Amendment No. 192 in the name of the noble Lord, Lord Dholakia, has not been dwelt on. It is a drafting amendment and I shall deal with it quite shortly. We do not believe that it is necessary.
There is no doubt at all that there are important questions here. I do not reject the suggestion put in a spirit of helpfulness by the noble Lord, Lord Goodhart. I do not believe that we have discharged our duty properly to tease out all the intricacies and possible problems or the possible answers to problems this evening. It may well be that we ought to return to them earlier than at ten minutes past eleven on a future occasion.
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