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Lord Williams of Mostyn moved Amendment No. 22:


Page 33, line 37, leave out ("the probation service").

The noble Lord said: My Lords, when on Report we debated what is now Clause 43, I promised to bring forward amendments to deal with many of the points which had caused concern. I was grateful to have had useful conversations with the noble Baroness, Lady Anelay, with the Lord Chief Justice by letter and with the Magistrates' Association and the Justices' Clerks' Society. Because of those conversations, and because we promised to look carefully at these matters and to take into account real concerns, we have brought forward these amendments. The most significant is that which adds new subsection (2A) to Clause 43.

It limits the powers which are capable of being made available to justices' clerks. Clerks will have no power to remand a defendant in custody, and will have the power to remand on bail only on the same conditions as those previously imposed, unless the prosecution and the accused consent to their being varied or to new ones being imposed. The same restrictions apply to the power to remand defendants at an early administrative hearing, which now appears in Clause 44. The result is that there are no circumstances in which a clerk will be able to remand a defendant in custody.

The other restrictions on Clause 43 powers are that a clerk cannot impose reporting restrictions; he may make orders for separate or joint trials only with the consent of all the parties; and while he may request a pre-sentence report, he cannot give an indication of seriousness. Those latter matters were raised in particular by the noble Lord, Lord Goodhart, whose presence I was looking for and have now discovered to my surprise, because I was going to make those remarks in his absence.

In the debate on Report the noble Baroness, Lady Anelay, wondered whether the effect of this would be that pre-sentence reports would be ordered almost as a matter of course, with unfortunate implications for resources. I see no reason to fear such an outcome, since clerks should be as well able as magistrates to assess whether a PSR is likely to be required. The other amendments are drafting improvements only.

I hope that noble Lords who expressed concern about those matters will feel that we have reasonably met those concerns. It may be that Amendment No. 25 will no longer prove necessary, although it was a useful spur to action. I beg to move.

8 p.m.

Baroness Anelay of St Johns: My Lords, I thank the Minister for bringing forward these amendments. They meet many, if not all, of the concerns that I have expressed throughout our debates on the Bill.

I was very grateful to the Minister for agreeing to my request for a meeting between Committee and Report

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stages, a meeting at which the Magistrates' Association, the Justices' Clerks' Society, the noble Baroness, Lady David, the noble Lord, Lord Goodhart, and I were able to discuss Clause 43 with the Minister and his officials. We all thoroughly appreciated that opportunity. I am sure that the Minister was left in no doubt as to the strength of our views. Those views were expressed throughout in a non-party, non-partisan manner.

I am grateful also for all the efforts made on behalf of those who had concerns about the clause. I am grateful for the work done by my noble friend Lord Kingsland and by the noble and learned Lord the Lord Chief Justice.

I welcomed the Minister's statement on Report that he would bring forward amendments at Third Reading to make clear the extent of the powers which clerks would be capable of exercising, subject to rules. I recognise that the undertakings that he gave on Report are met within the amendments that he is moving today.

However, I place it on record that I have never called into question throughout these debates the competence of experienced justices' clerks to perform all the functions listed in Clause 43. I have simply questioned whether it is appropriate for them to do so. There has been a general principle underlying my anxieties about Clause 43. It is simply that the lay magistracy performs valuable judicial functions which should not in themselves be devolved to justices' clerks. In particular, I had in mind the granting of bail and the ordering of pre-sentence reports, by which the clerk is involved in giving the Probation Service an indication of the seriousness of the offence and thereby involved in the sentencing process.

I certainly welcome now the changes that the Government have introduced, whereby they have restricted some of the bail-granting powers which were to be devolved and have removed from the ordering of the pre-sentence report the requirement that the clerk should give an indication of the seriousness of the offence. That was most welcome.

The Minister made reference to a worry which I voiced on Report; namely, that the ordering of the PSR would become merely mechanical and automatic. I perhaps did not explain sufficiently effectively on Report my real concern in that regard. It is that, when a clerk now orders a report without giving an indication of the seriousness of the offence, it means that on each and every occasion when the clerk makes such an order, the Probation Service will be required to make an all-options report; and that must be assessed individually as against every single available sentencing option.

I have been reminded by the Magistrates' Association that that could work counter to the efforts it has been making with the Probation Service to work out a system by which the Probation Service's mind and efforts are focused more closely upon what might be more appropriate in an individual case. However, I place on record as a caveat the fact that we on

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these Benches note that there may be an unintended outcome to the way in which the Government have phrased the amendments.

As I mentioned earlier, I certainly welcome the fact that the Government have thought again on the way in which Clause 43 should operate. I thank the Minister for the concessions which have been made.

Lord Goodhart: My Lords, this matter was originally raised at Second Reading by the noble and learned Lord the Lord Chief Justice as a matter of concern. It has been handled in a very non-partisan way. I am most grateful to the Minister for the way in which he has listened, not only to the noble and learned Lord the Lord Chief Justice but also to those matters put forward by the noble Baronesses, Lady Anelay and Lady David, and myself at the meeting which we had some weeks ago in his office.

The provisions of Amendment No. 27 substantially meet all the problems which I felt were created by the original version of this clause. In particular, I am grateful for the fact that among the matters with which a justices' clerk cannot deal is the point that I raised about the prohibition on the publication of matters disclosed in court.

The noble Baroness, Lady Anelay, indicated that this was in no sense intended as a criticism of the capacity of justices' clerks. Indeed, as I said in Committee, if anything, this is the opposite problem, since justices' clerks are professionally qualified and trained whereas lay magistrates are not. It is a matter of some importance to ensure that the role of justices' clerks is not allowed to take over from the role which is properly that of magistrates.

However, this is one matter that has clearly had a happy ending. I am most grateful to the Minister for the action he has taken.

Viscount Tenby: My Lords, as someone involved in a somewhat desultory way with the original Clause 40 of the Bill but who was unable, alas, to attend the very important meeting at the Home Office at a later date, I wish to associate myself with the remarks of the noble Baroness, Lady Anelay, and the noble Lord, Lord Goodhart. I thank the Minister for being so approachable and so accommodating on this subject.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 23 and 24:


Page 34, line 18, leave out from ("informations") to end of line 20.
Page 34, line 23, after ("may") insert (", subject to subsection (2A) below,").

On Question, amendments agreed to.

[Amendments Nos. 25 and 26 not moved.]

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Lord Williams of Mostyn moved Amendments Nos. 27 and 28:


Page 34, line 30, at end insert--
("(2A) Rules under that section which make such provision as is mentioned in subsection (2) above shall not authorise a justices' clerk--
(a) without the consent of the prosecutor and the accused, to extend bail on conditions other than those (if any) previously imposed, or to impose or vary conditions of bail;
(b) to give an indication of the seriousness of an offence for the purposes of a pre-sentence report;
(c) to remand the accused in custody for the purposes of a medical report or, without the consent of the prosecutor and the accused, to remand the accused on bail for those purposes on conditions other than those (if any) previously imposed;
(d) to give a direction prohibiting the publication of matters disclosed or exempted from disclosure in court; or
(e) without the consent of the parties, to give, vary or revoke orders for separate or joint trials in the case of two or more accused or two or more informations.").
Page 34, line 34, at end insert--
("( ) In this section and section 44 below "justices' clerk" has the same meaning as in section 144 of the 1980 Act.").

On Question, amendments agreed to.

Clause 44 [Early administrative hearings]:


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