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Lord Thomas of Gresford: Following on from that answer from the Minister, at present the presiding judge of a circuit or the senior civil or criminal judge in a particular court area has the last word on such matters as listing cases, use of courthouses, and so on. Could the Minister define the relationship that is envisaged in the new set-up? Do we take it that the judges will continue to exercise control over the matters referred to in the amendment, including listing of cases, use of courthouses and deployment of judges and magistrates? Will the judges have the last word or will the local chief officer be controlling them?
Baroness Scotland of Asthal: We do not envisage a change in the relationship. I have tried to say that the issues mentioned by the noble Lord, Lord Thomas, are judicial, not administrative. We think that there has been confusion between the proper role of the administrative arm and the proper role of the judicial arm. We say that listing is a judicial function. The new system should be no different from the old system in relation to the arrangements on deployment that are in place between the Court Service and the judiciary.
The whole point of this unification is to take that which works well from the Court Service and that which works well from the magistrates' courts committees and to harness and garner the advantages from the system and make them universally
applicable. We have no intention of weakening those instruments and tools that we have deployed with great effect in the past and which have served us well.
Baroness Anelay of St Johns: I thank the Minister for her answer. This has been a useful debate and something to which I will need to return, in a slightly different form, on Report.
I was grateful to my noble friend Lord Renton for referring to the intention behind the amendment. The noble Lord, Lord Clinton-Davis, thought that the intention may have been satisfied by Clause 5. I agreed to table the amendment because I do not think that it is, and we need to go deeper than that.
The noble Lord, Lord Thomas, was right to ask about the Government's intent for the future. It is important that we begin to get a picture of that. I go to the root of the issue. There has been a debate about the membership of the committees. I accept that my drafting may not be as good as it could be and I shall look at it again. However, as I understand it, the word "judiciary" normally encompasses within it the magistracy. Indeed the Bill refers to judges as justices. Therefore, I suggest that the judiciary encompasses lay magistrates. However, I appreciate that my amendment did not make that clear and therefore I did not raise it as a matter for debate as it would have been improper so to do. I shall ensure that I do not make that mistake again.
I was intrigued by the important intervention of the noble Lord, Lord Graham of Edmonton. He asked whether the measure we are discussing was needed and said in effect that if there was no great clamour for it we should not introduce it. I put the converse argument; namely, where there is a clamour, listen to it and act. I look forward to the noble Lord, Lord Graham, supporting Members on this side of the Chamber when we table certain amendments on Report, we hope with the agreement of the Minister. I refer to the great clamour of disagreement outside the Chamber on the Government's proposals on CACs. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Abolition of magistrates' courts committees: transfers]:
Baroness Anelay of St Johns moved Amendment No. 31:
- Page 54, line 23, at end insert—
The noble Baroness said: In moving Amendment No. 31 which stands in the name of my noble friend Lord Kingsland, I wish to speak also to Amendment No. 33, which also stands in his name. I wish to refer also to Amendment No. 32 which stands in the names of the noble Baroness, Lady Gibson of Market Rasen, and the noble Lords, Lord Lea of Crondall and Lord
Schedule 1 gives the Lord Chancellor sweeping powers to make provision for the transfer of both the property and the staff of magistrates' courts committees and other bodies. In the case of property, the transfer may be to the noble and learned Lord or to another Minister of the Crown, and in the case of staff, the transfer will be into the employment of the noble and learned Lord. So far, so clear.
Amendment No. 31 would insert into paragraph 1 of the schedule a requirement to consult with the bodies specified in subparagraph (2) where they were affected by a property transfer scheme. The purpose of the amendment is to probe the nature and extent of the property that will be transferred under the provisions of the schedule from bodies other than magistrates' courts committees. It is self-evident that if magistrates' courts committees are to be abolished, as the Government propose, then their property will have to be transferred elsewhere, but subparagraphs (1) and (2) of paragraph 1 grant power to the Lord Chancellor to transfer property, rights or liabilities from other bodies including county and district councils, London borough councils, police authorities, local probation boards and,
I recognise that in order to be transferred under a property transfer scheme, the property, right or liability in question will have to,
We talked about consultation earlier. Will the Government also say whether there has been any consultation with these bodies to date about the provisions of Schedule 1 and, if so, what the outcome of the consultation has been? Do they, as the amendment proposes, intend to conduct a consultation exercise before property is transferred?
I note that the Explanatory Notes state at paragraph 21:
Amendment No. 33 would insert a similar requirement for prior consultation in respect of schemes for the transfer of the staff of magistrates' courts committees into employment by the noble and learned Lord the Lord Chancellor. Such a scheme may also apply to local authority staff whose work is connected with the magistrates' courts. Will the Government clarify exactly how many staff will be transferred under these schemes, particularly staff who are currently employed by local authorities? Have they been consulted on the proposals in the Bill—I hope that the Minister will answer in the affirmative—given that the basis of their employment will be affected?
Will the Government amplify what is in the Bill and the Explanatory Notes in respect of pension provision? I shall not discuss that matter in detail as I expect that the noble Baroness, Lady Gibson of Market Rasen, will do so more fully. I beg to move.
Baroness Gibson of Market Rasen: I wish to speak to Amendment No. 32, which is grouped with the amendments we are discussing. Amendment No. 32 relates specifically to the staff transfer schemes in Schedule 1. The amendment is designed to ensure that in any question of transfers of employees, all employees are included and their rights upheld. In that it is similar to previous amendments that I have moved during the passage of the Bill.
Obviously, staff transfer schemes are very important to people working within organisations, as I am sure my noble friend will understand. The welcome streamlining of the courts affected by the Bill means that those employed currently by magistrates' courts will be merged with other employees currently working within the Lord Chancellor's Department. However, the language in paragraph 9 of Schedule 1 is of concern to some. It does not seem to me or to the unions involved to ensure that the employment rights of all employees will be covered by the transfer scheme. Nor does it appear to protect the terms of the current collective agreements. In particular—I refer to a matter we discussed earlier during the Bill's passage—the use of the word "may" in paragraph 9(1) in relation
In paragraph 9(5) the word "may" again appears. That is worrying wording as it leaves open the possibility that the scheme may not cover eligible employees.
Although paragraph 9(6) contains provision for the Lord Chancellor to give directions about consultation in relation to each eligible employee to be transferred, it does not require him to do so. It does not specify the consultation requirements and it does not apply to all affected employees—only to those who actually transfer.
The trade unions representing the current employees strongly believe that the other subparagraphs in paragraph 9 considerably weaken the existing collective agreements and recognition agreements. In particular, paragraph 9(8) refers to a person who is not transferring because he objects to being transferred by the scheme. The paragraph provides under those circumstances for dismissal immediately before the appointed day on which the staff transfer comes into force. There is a question mark as to whether such a dismissal could be regarded as being automatically unfair, subject to any economic, technical or organisational reasons applying.
I recognise that the proposed amendment considerably shortens paragraph 9, but it ensures that all staff are accorded full TUPE protection and that there is no mismatch between TUPE regulations and the Bill. I welcome comments from my noble friend about these issues, as there are genuine concerns on the part of employees involved.
"(2A) Before making any property transfer scheme, the Lord Chancellor shall consult any of the persons mentioned in sub-paragraph (2) who are affected by the scheme."
"any other body which acts under any enactment or instrument for public purposes and not for its own profit".
I assume that this last catch-all definition was included just in case any relevant bodies had been inadvertently missed off the list. But if that is the case, one would hope that by now the noble and learned Lord the Lord Chancellor would have some idea which bodies had been omitted to enable them to be notified about the transfer of property.
"subsist for the purposes of, or in connection with, magistrates' courts".
I should therefore be grateful for clarification from the Government as to the kinds of property, rights and liabilities that will be transferred away from police authorities, probation boards, local councils and the other bodies specified in subparagraph (2) of paragraph 1.
"Land will in fact be transferred to the Deputy Prime Minister, who will make arrangements with the Lord Chancellor".
Members of the Committee will recall that at Second Reading the noble and learned Lord the Lord Chancellor said:
"This is not a take-over of the magistrates' courts by the Court Service, nor is it a centralising measure".—[Official Report, 9/12/02; col. 15.]
However, it appears from the provisions of Schedule 1 and what is stated in the Explanatory Notes that if the Bill is enacted, property at present owned by magistrates' courts committees, local authorities, police authorities and local probation boards will be transferred to the Deputy Prime Minister. That raises many questions. Why Mr Prescott? What has he done to deserve all this? What will be the terms of the arrangements to be made between the Deputy Prime Minister and the noble and learned Lord referred to in the Explanatory Notes? I hope that the Government will be able to make these matters a little clearer than they are at present.
6.45 p.m.
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