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Lord Renton: My Lords, my noble friend Lady Anelay has gone to a tremendous amount of trouble with this rather complicated group of amendments, but they are fundamental. Up to a point they overlap and coincide with amendments in the same group tabled by the Government. This breaks new ground, which is necessary bearing in mind that the magistrates' courts are being transferred from the Home Secretary's responsibility to that of the Lord Chancellor.
In basic principle, however, the views put forward by my noble friend Lady Anelay would be workable and are sound. Therefore, I hope that the Government will feel that even if they wish to modify some of the detail, the views that my noble friend Lady Anelay has put forward should be accepted.
Lord Mackay of Clashfern: My Lords, mention has been made of a difficulty that I have with new Clause 5 which the Government have proposed. To my mind,
a perhaps completely novel procedure—if it is not completely novel, it is certainly exceptional—has been adopted for modifying the statutory functions of the boards as prescribed in new Clause 5. It provides that the Lord Chancellor can by guidance supplement the functions conferred on the boards by the statute. I am not aware of any other situation in which guidance has been used as an instrument for amending primary legislation. There is a good deal of talk, as there has been over the years, about the propriety of amending statutes by secondary legislation, but this is a step further. Without the ordinary process for such change, in practical terms, it is difficult to know how a person who is not very familiar with the statutes can in years to come find out the current functions of these boards. I do not think that it would occur to one to look through the guidance issued to find the changes.
Lord Phillips of Sudbury: My Lords, I have my name to a number of the amendments in this group. From my point of view, and I should think from that of many noble Lords, placing such a huge number of crucial amendments in one group makes it extremely difficult to have sensible and effective discussion of them. I much regret this grouping.
I speak in support particularly of the early amendments in this group in the names of the noble Baroness, Lady Anelay of St Johns, my noble friend Lord Goodhart and myself, particularly Amendments Nos. 2 and 3 which make amendments to Clause 1 and would give the new courts boards more significant power. The proposed arrangements, even as amended by the new set of amendments tabled by the Lord Chancellor, do not give any power to the courts boards.
As the noble Baroness, Lady Anelay, implied, from the Government's point of view our amendments in this group are a good deal milder than the ones which we debated at length late on the night of 28th January. Many noble Lords who are now in the Chamber took part in that extended and important debate. I believe that these amendments deal with the principal objection raised—with which I can concur or at least sympathise—namely, that there needs to be a separation of powers between the executive under the so-called unified system and the courts boards, that requirement being particularly acute vis-à-vis Crown and county courts, which of course are part of the new aegis with magistrates' courts.
As we all know, justices of the peace have in effect run their own courts and made their own decisions in relation thereto for nigh on 1,000 years. So the amendments at the beginning of the group to which I am speaking keep the board non-executive, but give it one specific power—namely that of approving annual local strategic plans which the Lord Chancellor would be required to produce to them as a subset of the annual national strategic plan that the amendment would require him to produce and have approved by each House.
That may sound a major change from what is already in the Bill, but I do not believe that it is. The Lord Chancellor already has the obligation, under
Clause 1(4), to produce an annual report after the event, so to speak. However, in his own new amendment to Clause 5, he gives the new courts boards a duty,
- "to consider draft and final business plans relating to those courts".
I should say now that Amendment No. 21 in my name—I have to refer to it now because it is in the same group—requires that those draft plans are draft strategy as well as business plans. I put the amendment forward in a probing way in the hope that the Minister can assure me that the phrase already in their amendment, "final business plans", is intended to be construed widely to include matters of strategy in relation to local courts.
So what these early amendments in the group boil down to is that local plans do not come into effect until approved by each courts board. We believe that that will go a considerable way towards amending what we and very many magistrates—indeed, a growing number of magistrates—see as the principal defect of the proposed unified system. If that approval were part of the Bill, we would expect that, in practice, because of the need for it, there will be a much closer and more effective interaction between the boards and their chief executives. Short of giving the boards decisive powers, which we are no longer seeking, this arrangement gives each board a practical, irreducible assurance that their views really will count.
The Minister's repeated powerful and eloquent protestations throughout the consideration of the Bill and in the very many letters that she has written which I have seen—protestations about proper consultation, proper regard for the views of boards and so on—can provide only, as I am sure she must admit, a limited and temporary comfort. Ministers change. Governments get overthrown. Financial and policy priorities change.
It is because we are dealing with the ancient, established, embedded institution of magistrates' courts that we do not believe the present board arrangements of an advisory and recommendatory nature are sufficient.
I am aware that our amendment requiring approval by local boards provides no tie-breaker for potential deadlock between a board and its chief executive. That dilemma is often found in arrangements for boards of directors in private companies and in certain types of contract. I have come across it many times in my professional life, and there are two schools of thought about it. One school, the more conventional, is that there must be a tie-breaker. The other—the one which we prefer in this context—is that the boards, being as they are composed of a much wider group than most magistrates' courts committees currently are, will in effect have to come to a compromise solution with the
chief executive. I believe that they will. However, if the Government consider that to be the stumbling block to this amendment—we shall soon hear whether it is—there is time enough for a sensible contrary view with a suggested tie-breaking arrangement to be considered at the next stage.I should like to say a word about the depth and extent of discontent in the magistracy over these central arrangements, which as I said are not essentially altered by the amendments tabled by the Lord Chancellor. In a nutshell, all the decisive powers of lay justices in running their own courts are being removed. Those powers are, as I said, being replaced by only advisory and recommendatory powers. Therefore, if push comes to shove, and of course it will, the executive agency and its employees will rule the roost in the future. I think that one can reasonably predict that few of the chief officers will have hands-on experience of magistrates' courts, or indeed of any courts. I could give examples of chief administration officers under the present regime who have been appointed to their position without any knowledge or experience whatever of the law or courts. Not merely that but on the new courts boards the magistrates, far from having, as they presently do, a majority, will be entitled only to a single representative. En passant I speak to Amendment No. 25 in the group which stands in my name. A minimum of two on these new boards for magistrates must surely make sense and go a little way towards mitigating their extreme discomfort with, and lack of confidence in, the proposed arrangements.
On 26th April a meeting took place in London attended by 150 people, most of them elected chairs of magistrates' courts Benches, of which there are around 300. So nearly half the chairs of magistrates' Benches attended the meeting. They came from 37 of the 42 magistrates' courts committees. I am sure the House will be interested to know that that extraordinarily—how shall I put it?—responsible, respectable and—
11.30 a.m.
Lord Phillips of Sudbury: I thank the noble Lord, Lord Renton. I adopt the epithet "representative" and add to it the fact that magistrates are extremely cautious of anything remotely approaching politics. They feel so strongly about what is going on and about the inadequate advocacy of their point of view that they have now formed a national forum which, somewhat late in the day but not too late, will put their views in relation to this and other aspects of the Bill and, indeed, in relation to the many statutory instruments and orders that will follow its enactment.
Whatever the Government may think, there is now a powerful and growing sense that the price to be paid for the new unified service as it stands under the Bill is too high and against the public interest. Whatever the Government may think, there is also a settled conviction that without an amendment such as the one we are discussing—it is fairly minimalist—the morale of lay justices, and hence the retention of justices of the peace and recruitment of quality new ones, will be
progressively undermined. There is much anecdotal evidence coming through even at this stage of magistrates throwing in the towel and saying that they are fed up with the bureaucratic demands being placed upon them, let alone the never ending complexities of their role, and also of a failure to attract the very sort of rugged, quality, experienced individuals who make the best magistrates.It is an irony that we are discussing a measure which will centralise and inevitably bureaucratise the running of the courts in this country at the very same time as the other place is discussing the very reverse process vis-à-vis the NHS. Foundation hospitals are put forward by the Government, in my view broadly correctly, on the basis that the centralised, bureaucratic, managerialist system that prevails within the NHS is simply incapable of delivering the goods, most specifically in terms of its impact on the morale of the staff of the NHS and the doctors. That has never been so low. More and more doctors are retiring at the earliest possible moment. We have a crisis of manpower or womanpower on the wards and elsewhere.
I believe that so much of the thrust of the Bill, especially as regards the inability to see the impact that it is having, and will have, on the morale of the magistracy, is moving in precisely the opposite direction from the insights which underlie the proposals vis-à-vis foundation hospitals. The endless organisational tinkering from on high, which has characterised successive governments' stewardships of the NHS, has yielded less than nothing. As I say, morale is crucial.
It is not even as if there is an assurance in the Bill, or in the later amendments of the Lord Chancellor, that the 42 boards, themselves only brought into being under the Access to Justice Act 1999, will be retained. As the noble Baroness, Lady Anelay, rightly said, this is a minimalist amendment that we believe must be placed in the Bill. The logic of so much of the Government's argument with regard to the reorganisation will lead inexorably, many people believe, to ever greater local justice areas justified on the same assumptions of economies of scale, consistency and increased flexibility which underlie the reasoning put forward for this central and unified structure.
The boundary problems between courts about which the Government have made much play—some of it justified, some of it exaggerated—will always exist so long as there are boundaries. One begins to wonder whether the new managerial regime will not over time press for bigger and bigger and fewer and fewer areas.
Many Bench chairmen have said or written to me to the effect that although the unified service will be easier to control, the quality of what is controlled will perforce decline unless the safeguards contained in the amendments proposed by noble Lords from this side of the House are put in place. It is rather like an underpowered car that may be easier to drive but only because it has less punch under the bonnet.
If one really wants independent justices of the peace of the highest quality, one must expect some turbulence from them, some lack of consistency between one court and
another and some awkwardness. But surely we are wise enough in this House to realise that there are times when efficiency and effectiveness—the great mantra of this Government—work in opposite directions. Bureaucratic convenience and managerial control may make the paperwork neater and more consistent—several people have pointed out to me some of the micro-criticisms raised by the noble Baroness, Lady Scotland, in her speech on 28th January—but the long-term basic effectiveness of magistrates' courts as a whole is undermined through loss of independence, loss of a sense of autonomy and the accompanying loss of esteem. As I say, that is not a price worth paying.
I am sorry to have spoken at some length but, as I say, we are dealing with a group containing some 20 amendments. If the Government do not listen to me and noble Lords on these Benches, I hope very much indeed that they will take heed of the very many letters which I understand have been written by a great many highly distinguished lay justices on this very set of issues.
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