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Lord Borrie: I do not know whether it is appropriate to intervene at this point. If it had not been for the matter of proposing the resolution, I would have sought to intervene before the noble Baroness, Lady Anelay, sat down. This series of amendments deals with the functions, powers, constitution and so on of court management boards. Are the amendments meant to apply not only to the administration of magistrates' courts but also to the administration of justice in the Crown Court and county courts so that
the present existing unified system under the Court Service would be changed completely to that of a locally administered service in X number of areas?
Baroness Anelay of St Johns: The noble Lord, Lord Borrie, has jumped ahead. I was trying to present the case in a dual way in that I would set the scene and the real explanation would come from the noble Lord, Lord Phillips of Sudbury, who, as a lawyer, is better able to provide that. This is passing the buck and enjoying it.
The amendments are put forward for a sensible reason. As the noble Lord, Lord Borrie, will be aware, both these Benches and the Liberal Democrat Benches have worked very closely on this matter with the Central Council of Magistrates' Courts Committees and the Magistrates' Association. Therefore, it would be wrong for me to jump in and answer the noble Lord's question, which, I believe, should properly come at the end of the speech of the noble Lord, Lord Phillips. However, if he is still unhappy at the end of that, I shall certainly be delighted to come back and answer any further questions.
Lord Phillips of Sudbury: I believe that I can answer the pertinent question posed by the noble Lord, Lord Borrie, by saying: largely, yes. The effect of these three long amendments is to turn the tables on Clauses 4 and 5 so that the ultimate, decisive powers will rest with the board—I shall speak to that in a moment—rather than as Clauses 4 and 5 state, with the Lord Chancellor. We understand how fundamental the change is; we also understand that there will be ramifications in the directions that the noble Lord, Lord Borrie, enunciated and there is no amour propre about the particular arrangement here. If necessary, we shall have time to change the wording and the disposition of provisions before the next stage.
We are dealing with an argument about where power should lie ultimately, although it has been heavily disguised by what the Government have said and by what the noble Baroness has said here and at the meeting. We are not dealing with recommendatory or consultative power, but with real decisive power. On these Benches we are at one with the Conservative Benches and we believe that no good case, no remotely sufficient case has been made for what would be a radical departure from an age-old system that requires improvement and requires movement in the direction in which other parts of the Bill take it, but which does not deserve this fundamental upheaval in terms of powers.
I shall briefly read from what the Magistrates' Courts Service Inspectorate said in its 1998–99 report which was confirmed the following year:
- "on the whole the MCC structure seems still to work well. It has shown itself capable of reform, and of increasing efficiency and effectiveness. The challenges help MCCs to strengthen their membership and improve their procedures to meet the new requirements".
This debate is bizarre. Again and again in her replies the Minister does not refer to the provisions in the Bill, but to provisions that are not in the Bill and to
proposals that the Government may advance, whether in the form of guidance or whatever else in the future. We must bear in mind that on this Bill we have the cart before the horse, with the consultation coming after the Bill is debated. We are at the start of much of the consultation process.It is all very well for the Minister to say that hereafter we shall have to put flesh on the bones; it would be better to say that we should put flesh on the skeleton. So much of the essential substance of what should be in the Bill is not there. The noble Baroness is never less than gracious and never less than helpful. But it is not sufficient or right for the House to deal with such a hugely important piece of legislation on the basis of trust, hope and expectation, particularly when it concerns where power lies. The power is being removed from where it lies at present to another place, in fact to the Lord Chancellor who is centralising the whole of this unified system in his own hands.
Where power is concerned, a bird in the hand is worth two in the bush. When dealing with the Government and with Whitehall I suggest that a bird in local hands is worth 10 in any Whitehall bush. It is all very well to talk about the efficiency and improvements that the Government have asserted will result from their grand designs, but it rarely appears to come to pass. There is an amount of scepticism among magistrates. They look at the centralising reforms in education, health and transport and they are not encouraged. If one compares the rhetoric that preceded reformation Bills with the aftermath, one will understand. We have been through such a situation with the county police committees and probation committees. There was precisely the same kind of attempt to centralise ultimate power in Whitehall—in a Minister—and, wisely, we rejected it.
The central issue of whether this is a shift from what preceded it needs to be knocked on the head. It would be like something from Alice in Wonderland if we were to pretend that the White Paper was not different from what is in the Bill. I shall remind the Committee what the White Paper said:
- "We expect the decision making to be decentralised to the local management boards".
We should examine what is provided for in the clauses. The Lord Chancellor appoints every person; the Lord Chancellor gives guidance; and the Lord Chancellor receives recommendations to which he must have regard. The 30,000 magistrates in this land think of the recommendations that they are asked to make about court closures. There is a right of appeal to the Lord Chancellor with regard to a court closure, the sort of appeal that the noble Baroness said that we might get for certain other matters with regard to the Bill. The Committee will know that the number of occasions on which an appeal to the Lord Chancellor against a court closure has been upheld is infinitesimal. There is scepticism about such arrangements.
I also notice that the issue of the composition of the councils has come up several times. The noble Baroness said that the Government had provided for—I noted the wonderful phrase that she used—"an irreducible number" of magistrates on the councils. I can tell the Committee why it is an irreducible number: it is one. I marvel at the passion with which the Minister assuages the fears of paranoid magistrates. At the moment, there are 12 on magistrates' courts committees. What is one among six?
As the noble Baroness, Lady Anelay of St Johns, said, there is huge discontent among magistrates. They are slow to anger. They are judges. They are deliberative, sensible people. However, they are now extremely concerned about what is in train. If the Magistrates' Association is thought to have been slow to gird up its loins, that is because it has consulted 30,000 magistrates. It is a charity and feels inhibited about the strength with which it expresses its views.
I shall read another document that may help us better to understand why the magistrates have no faith in an administration that will not put anything in the Bill. I have a court circular that was issued at the end of November, under the name of Mark Swales, the criminal courts' business redesign manager. It says:
- "The Bill provides for a summary offence to be treated in the same way as an indictable offence and will allow proceedings to be brought anywhere in England and Wales, rather than just in the 'LJA' where the offence is committed. This will have the effect of reducing delay by allowing bulk processing of cases and will allow specialist courts within an area to hear certain types of cases.
- Whilst the prosecutor will decide the court, they will do so in accordance with directions to be issued by the Lord Chancellor, with the concurrence of the Lord Chief Justice, as to where the cases are to be heard. The directions will state that people should appear before a court in the local justice area in which the offence was committed, or suspected to have been committed unless other factors are applied, such as the hearing of bulk issue cases in a particular court, the hearing of cases by a specialist court or the convenience of witnesses and victims".
- "the most important feature of the current magistrates' court system was that local justice was dispensed by local magistrates in local magistrates' courts, managed by a local magistrates' courts committee".
The Government talk about the increased accountability of the new councils, but no one has made the point that lay justices are intrinsically accountable in a way that professional judges never are. They are butchers, bakers and candlestick makers from the community over which they preside. That is the last surviving element of justice of the people, by the people and for the people. If we take away from them the powers that they have left to organise justice in their petty-sessional divisions and in their magistrates' courts areas, their belief is that a number of factors will follow from that. Local magistrates' independence will be affected; the dictates of administrative convenience—the so-called efficiency which is one of the statutory aims of all this—will override the interests of justice; their jobs will be less
interesting; their roles will have less status; and local justice will go down the pan. And local justice—although much lip service is paid to it—is the cornerstone of the lay justice system. If the magistrates cease to have familiarity with their localities and their people, and they cease to be able to have regard to local sentiment, a great deal will have been lost. It is no good the Government pretending that this issue is not part and parcel of the consequences of going down this road.Therefore, I say to the Government that they must take on board that decisive powers must rest with local management boards. Nothing else will do. It is an irreducible requirement. The Government must understand that; it is no good relying on 101 elements of soft soap.
Finally, the delivery of justice is hugely complex. There are always elements that can be improved. However, by and large, this is a system that has stood the test of time. I urge the Government to have regard to the prospect of losing some of the best magistrates now serving—as is happening in some counties. I see the noble Lord, Lord Bassam, looking askance at that. The evidence from magistrates' courts committees is—this is not my view, but at Second Reading I quoted from the report of the Suffolk magistrates' courts committee—that good magistrates are folding their tents and saying, "Enough is enough". Recruiting the best magistrates is becoming more difficult. The decline of status and morale are devastating to the magistracy as a whole.
I do not need to spend much time on the amendments because they are self-evident. If anything, they are too long. But it is abundantly clear that the proposal does not simply remove all power from or retain all power with the proposed area courts management boards. In Schedule 1, the Lord Chancellor is given a whole raft of intervening powers. In subsection (7) of the new clause proposed in Amendment No. 28:
- "The Lord Chancellor may determine whether any provision made by an area courts management board under this section is sufficient".
I shall leave these three amendments at that, but urge them on the Committee.
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