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Lord Goodhart: The Minister referred to the Nolan principles. Under the classic Nolan principle there would normally be an appointment for a period of three years, renewable once but not more than once. Is that the kind of appointment period the Government have in mind?

9.15 p.m.

Baroness Scotland of Asthal: I cannot say whether it would be for a period of three years. I assume that that would be the normal way. Certainly all the appointments made in the past have tended to be for a period of three years. There are occasions when particularly difficult issues come before the rules committee where specific specialisation may be necessary, where alternate opportunities need to be taken and other people co-opted. I cannot give a definitive answer in relation to that.

We very much value the work of the rules committee. It has given huge attention to some of the detailed practical issues. We have benefited from having on it practitioners, judges and people from representative bodies and we have taken advantage of their experience. To be absolutely frank, those who have a real talent for this kind of work tend to be treasured and invited on to the committee for as long as they can bear it. They do good work.

I cannot give the Committee a better answer at the moment. If I obtain more information, I shall be happy to write to noble Lords.

Lord Hunt of Wirral: I prefer not to be known as a "stalking horse", as the Minister called me—perhaps a "treasure". In view of what she said, I should like to feel that any contribution I make will be treasured. However, I am not too sure that all my contributions today have been so regarded by the noble Baroness.

I swiftly move to thank her for that clarification and to thank the noble Lord, Lord Goodhart, for probing in the way that I should have done vis-a-vis the Nolan committee. I was involved in the setting up of that body, which has been very successful.

I agree that the Civil Procedure Rule Committee has been a remarkable success and has made a significant contribution towards improving the civil justice system. We wish the new criminal procedure rule committee well. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 agreed to.

Clause 66 [Power to change certain requirements relating to Committee]:

Lord Goodhart moved Amendment No. 94:

"( ) No order may be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament."

11 Feb 2003 : Column 651

The noble Lord said: Clauses 65 and 72 specify the membership of the criminal procedure rules committee and the family procedure rules committee respectively, both of which will be newly created bodies. Clause 78 amends the existing legislation on the membership of the Civil Procedure Rules Committee, which is an existing body.

Clauses 66, 73 and 79 give the Lord Chancellor the power to change the categories of membership by statutory instrument. Although there is a requirement for consultation, in each case the negative resolution procedure is provided for.

I have to accept that the Delegated Powers and Regulatory Reform Select Committee stated in its report on the Bill that,

    "Potentially, the order-making power could be used in a way which changed the balance of the Rules Committee but we consider that the negative procedure probably provides a sufficient degree of parliamentary control".

We disagree with that.

This is an important power and these are three important committees which, between them, have very extensive powers over virtually the whole of our judicial procedure. We believe that a change in the rules of membership should require the affirmative procedure. I beg to move.

Lord Hunt of Wirral: I rise merely to support the words of the noble Lord, Lord Goodhart.

Baroness Scotland of Asthal: I hear everything that the noble Lord says in relation to the need for these committees to be stable and not to be changed, and what he says in relation to the affirmative procedure. I know that the noble Lord has read in full the committee's reasoning in reaching the conclusion that the negative resolution procedure is the better. I respectfully endorse all those comments. I say further that, of course, there will be little temptation for any future Lord Chancellor to re-weight the balance of, for instance, the family procedure rule committee in favour of the state over the rights of the individual in family proceedings. I believe that scrutiny by the negative procedure will give us sufficient security.

The comment of the noble Lord, Lord Hunt, in relation to the way in which the Civil Procedure Rule Committee has worked is absolutely right. We have no reason to believe that the two new committees will not be equally effective and successful and receive the necessary plaudits.

I hope that the noble Lord will be content with that. If he feels the need for further explanation, I can provide that at length. However, it might be better to move on.

Lord Goodhart: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 agreed to.

11 Feb 2003 : Column 652

Clause 67 [Process for making Criminal Procedure Rules]:

[Amendment No. 95 not moved.]

Lord Hunt of Wirral moved Amendment No. 96:

    Page 31, line 16, leave out ", with the concurrence of the Secretary of State,"

The noble Lord said: This amendment seeks to leave out the words,

    "with the concurrence of the Secretary of State",

so that the subsection would read:

    "The Lord Chancellor may . . . allow, disallow or alter rules so made".

The amendment seeks to probe why the concurrence of the Secretary of State is required.

Members of the Committee will note that in Clauses 74 and 80, dealing with the process for making family procedure rules and civil procedure rules, the concurrence of the Secretary of State is not required. There, the power to,

    "allow, disallow or alter rules so made",

is given to the noble and learned Lord the Lord Chancellor alone.

Why will the Secretary of State have to give his consent for the making of criminal procedure rules, and what procedures will the Government be putting in place for the making of the rules? Will the Secretary of State merely be presented with a document by the noble and learned Lord the Lord Chancellor, and told: "Here are the rules I wish to make. Do you concur"? Or will the Secretary of State have an input into the making of the rules themselves and into the noble and learned Lord's decision-making as to whether to allow, disallow or alter the rules? I beg to move.

Baroness Scotland of Asthal: As the noble Lord may know, the Lord Chancellor is responsible for the administration of the courts, but the Home Secretary bears responsibility for criminal policy.

The creation of the criminal procedure rule committee is an initiative which has the wholehearted support of the Attorney-General and the Home Secretary. Many court processes originate from legislation taken forward by the Home Secretary, and it is desirable that the Home Secretary should be involved in the final stages of the rule-making process.

Closer liaison between officials of all three departments will help to ensure that future legislation is developed consistently and economically across the criminal justice system. I can reassure the noble Lord that the rule committee will be making the rules, not the Lord Chancellor. I hope that explains why we believe that it is helpful for the Home Secretary to be involved in this way. It will provide greater consistency and we hope that it will make the path smoother in the future.

Lord Hunt of Wirral: I am grateful to the Minister for that explanation. I beg leave to withdraw the amendment.

11 Feb 2003 : Column 653

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 97:

    Page 31, line 17, leave out ", disallow or alter" and insert "or disallow"

The noble Lord said: In moving Amendment No. 97, I shall speak also to Amendments Nos. 98 and 99, 109 to 111 and 117 to 119. Although it is late, I shall have to take a little time, because they are important amendments. It is certainly the most important group of amendments we have debated today and among the most important tabled to the Bill.

We have three rule committees: the criminal procedure, the family procedure and the Civil Procedure Rule Committee. They are there to make rules, but the Bill says that the,

    "Lord Chancellor may . . . allow, disallow or alter",

those rules. I have no objection to the Lord Chancellor allowing them or, for that matter, disallowing them. It is fair that he should have a veto.

I am worried, however, by the Lord Chancellor's power to alter them, because a power to alter rules is, in effect, a power to make them. It is not quite an unfettered power to make them, because the Lord Chancellor cannot initiate a rule change. When he alters the rules, it must be within the scope of the rules presented to him by the rule committee. However, the power to alter rules is given without the Lord Chancellor having to go back to the rule committee to get its concurrence to the alterations that he proposes to make. It is wholly wrong that the Lord Chancellor has even a somewhat limited power to make rules on his own. It is highly dangerous.

If the Lord Chancellor is unhappy with some aspect of rules made by the committee, there should be a process of negotiation. Of course, he can indicate to the committee that he would disallow a proposed rule unless changes were made to it. The rule committee can then agree with the Lord Chancellor on the changes that should be made to it. That is the right and proper way of doing it. It would be wrong, however, for the Lord Chancellor, when presented with a set of rules, aspects of which he does not like, to be able to proceed entirely off his own bat and substitute his own rules for those made by the rule committee without seeking the committee's concurrence.

The measure represents an important innovation. The Lord Chancellor has never had power to alter the rules made by the Civil Procedure Rule Committee or by its predecessor, the Supreme Court Rule Committee. He did at one time have power to alter the rules made by the County Court Rule Committee, but that power was given up some years ago. It is wrong to bring back the Lord Chancellor's powers in relation to county court rules and extend them so far beyond anything that existed before. It is another example of the centralising tendency to which the Government are all too prone. The proposal to allow the Lord Chancellor to alter rules presented to him by the rule committee without the concurrence of the committee in the alterations should be rejected. I beg to move.

11 Feb 2003 : Column 654

9.30 p.m.

Lord Hunt of Wirral: Of course, we strongly support the words of the noble Lord, Lord Goodhart. On Amendments Nos. 97, 109 and 117, we share his concern about the power given the Lord Chancellor to alter rules. It gives the Lord Chancellor blanket discretion to rewrite the committees' proposals. In such circumstances, why have the committees in the first place?

Of course, Clause 67 provides that before altering rules so made, the Lord Chancellor must consult the committee, but he does not need to seek its approval. The noble Lord, Lord Goodhart, made that point clearly. I do not know what form the consultation will take, but the power to alter rules, which is not allowed for the civil procedure rules, stands out as being felt necessary uniquely for criminal procedure rules.

The Home Secretary may well have insisted that there should be the power to alter criminal procedure rules; otherwise I do not understand the force of the provision that alteration has to be permitted for the criminal procedure rules, but for civil procedure rules the power is only to allow or disallow. Why does the Lord Chancellor get the power to alter?

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