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Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for giving way and for her remarks. However, all the examples she gave related to financial matters. I was seeking clarification on whether this would include policy issues as well as financial and estate matters—as I thought she was saying.


Baroness Scotland of Asthal: My Lords, "strategy" will include the broad spectrum. We have no difficulty with the issues that the noble Lord raises as regards local areas.

Amendment No. 22, standing in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, seeks to amend the proposed new Clause 5. It would require the Lord Chancellor to give written reasons to a board if he were to reject its recommendations on a final business plan.

I believe that what the noble Lords want to achieve is to create an additional incentive to encourage the Lord Chancellor to think carefully before rejecting a board's views. I reassure the noble Lord that there is already a very clear incentive in the Bill: one of the reasons for giving the boards a statutory identity was to give them their own "voice"; I do not doubt that they will be quick to object if they feel that their views are being unfairly disregarded.

We intend that boards and chief officers will work in partnership to develop the plans for their area—that requires a certain amount of freedom for each party to contribute and to discuss the plans. At what point would we consider that a recommendation had been "rejected" for the purposes of this amendment? Would that be when a chief officer first rejects it, or when the national chief executive gets involved? Must the Lord Chancellor personally issue the rejection? Or

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should written reasons be provided at every stage of the process? That sort of relationship does not sound much like a partnership.

We have provided in new subsection (5) that the procedures to be followed in relation to business plans are to be set out in guidance; I would fully expect that to provide that, if the Lord Chancellor were to finalise a business plan without the agreement of the courts board, the board would be entitled to an explanation in writing. Giving written reasons is an appropriate matter for such guidance rather than for the Bill itself. Other matters which the guidance might cover could be the length of time that courts boards should be given to consider draft business plans; the information that boards need; and guidance on when they should take their recommendations to the agency chief executive or even to the Lord Chancellor personally. It could also define a whole range of circumstances in which boards would be entitled to an explanation about what the Lord Chancellor intended to do with their recommendations, and not only their recommendations about business plans. There may be other matters about which they want a written explanation and they should rightfully be entitled to that.

Within that context, it would seem rather odd to single out one aspect of the procedure for inclusion in the Bill and to leave the other aspects to one side. That would be a productive way of responding to that issue. Our intention is to have the draft guidance available when the regulations will be debated so that Members will have the opportunity to scrutinise the whole package.

In light of the assurance that that is one of the matters that would be included in the guidance I hope that the noble Lord will not press the amendment.

I turn to government Amendment No. 24, which contains a new schedule. The amendment creates a power to make regulations about the appointment of members of courts boards; the selection of chairmen; terms of office and provisions about resignation, suspension or removal from office; the procedure of boards; and the validation of proceedings in the event of a vacancy or defect in appointment. I hope that the House will be content that the opportunity for scrutiny of such regulations means that the Lord Chancellor will not have unbridled power to appoint and remove members from the boards on a whim.

The amendment contains a redraft of the categories of membership. It makes it absolutely clear that the numbers set out in the Bill are minima not maxima. It provides that lay justice members must be assigned to a local justice area that is at least partly in the board's area. That point was drawn from an amendment tabled in Committee by the noble Lord, Lord Dixon-Smith, who is in his place. It provides that all board members must be selected from one of the Bill's four categories. The Lord Chancellor would not therefore have discretion to appoint members who do not qualify under those categories.

I turn to Amendment No. 25. The noble Lord, Lord Phillips, proposes a further amendment which would require a minimum of two magistrates. I make

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no apology for repeating what I said many times in Committee; that is, that the Bill sets out a framework so that there can be variation between local areas. The discussion groups that we have held so far have been unanimous in their agreement that one size does not fit all. It is likely that many of the courts boards will have more than one magistrate among their membership, but we do not believe that that should be prescribed as the minimum.

The courts boards are not intended as a replacement for proper channels of communication and consultation between magistrates and the administration of their courts. That is why we have tabled an amendment to Part 2, which guarantees that those channels will be established. Magistrate members of the courts boards are not intended as "representatives" of local Benches. A minimum of one, along with a minimum of one judge, is therefore appropriate.

I turn to specific issues raised by the noble Baroness and others. The noble Baroness asked whether we would be kind enough to put the legal advice given to her in the Library. Yes, we will do so very willingly. I thought that that advice was already in the Library but I am delighted to confirm that if it is not there, we shall certainly ensure that it is there.

The noble Baroness also asked me to highlight and place on the record some of the features of that letter. I am happy to do so. It is an important principle of administrative law that a public authority to which the function, power or duty has been given by Parliament, cannot delegate that power. Where functions that are entrusted to a Minister of the Crown are performed by officials who are employed in the Minister's department, including any agency that has been constituted within the purview of the department, there is generally in law no delegation because the officials and decisions are constitutionally those of the Minister. That is the Carltona doctrine. Decisions made within departments are susceptible to being challenged by way of an action of judicial review which names the relevant Minister as the defendant.

In amendments dated 31st March 2003, Clause 1 remains in place—I refer to the noble Baroness's approach. The Lord Chancellor has the statutory function and duty of running the courts. The new clause that was proposed but which has now been abandoned provided that he must establish a courts agency that would be responsible for the administration of all the courts. Those two provisions are mutually incompatible. Statute cannot give the same function to two separate bodies. Parliament does not know whether to hold the Lord Chancellor or the courts agency to account. An aggrieved person seeking judicial review does not know whether to challenge the Lord Chancellor or the courts agency for acting unlawfully in the course of the responsibility for running the courts. We have set that out more fully, but that is probably the kernel of what is in the letter.

The noble Baroness and the noble and learned Lord, Lord Mackay, also raised the issue relating to guidance. The guidance would not amend primary legislation. It can only specify supplementary

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functions, which supplement the five subsection (1) functions. The amendment provides that the guidance will be placed in the Libraries of both Houses. We hear what the noble and learned Lord, Lord Mackay of Clashfern, said about that. The Government are absolutely committed to getting the phrasing of that correct. I am more than willing to look at the way in which it is currently phrased to ensure that the concern that the noble and learned Lord raised is addressed. We say that, although this is a new and unprecedented departure, it is merited in this regard for the reasons that I gave on the previous occasion. In view of the length of time for which I have now been speaking, noble Lords will be relieved to hear that I am not going to repeat all that was said last time.

I have already dealt with the issue in relation to the business plan raised by the noble Lord, Lord Phillips. I may have to deal with a few additional issues raised by him because the noble Lord talked of the tie-breaker and about the boards of directors. Perhaps I may respectfully say that the board and the local chief executive system are very different. Making clear how decisions will be taken and where the buck will stop—to put it colloquially—concerns accountability to Parliament, as I have just sought to indicate.

I also want to lay to rest the concern of the noble Lord, Lord Phillips, in relation to senior court managers and who will get the post of chief officer. We have a cadre of very good people working within the service. I would go so far as to say that there are extremely good staff in the Court Service and in magistrates' courts. I am sure that they will have an excellent chance of putting themselves forward for such appointments. I do not believe that the noble Lord need be concerned that the talent will not be there from which to make a good choice.

The noble Lord, Lord Phillips, also raised the issue about fewer and fewer areas. I was not clear whether that was about the courts boards areas or the local justices areas. If it is the first, I do not know whether he is saying that we should not necessarily follow any changes in the police areas. I have tried to explain that we believe that there are other factors that need to be taken into account and that we would seek to reflect them.

I have already dealt with the issue of coterminosity, but if the noble Baroness feels that further assistance on that point is necessary at this stage I shall be happy to say more. Unless she indicates that that is necessary I shall move on.

The magistrates' views were raised by the noble Lord, Lord Phillips. Effectiveness and efficiency of the courts and the way in which they work are matters of real importance to those who appear before them. To have access to justice assured and delivered in a way that creates equality across the country is a matter of great importance. We believe that what we have done assures that.

I was disappointed that the noble Lord felt that magistrates were throwing in their hands. We have done a great deal to ensure that their proper concerns were addressed. As I have said on a number of

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occasions before, particularly in Committee, the basis upon which those on all Benches have taken this matter forward has been very similar. We wish to achieve the same end. We have been struggling with the best way to achieve that. We have been able to do a huge amount of good work together to ensure that that has been achieved.

I believe that I have now dealt with all the issues that have been raised, including those raised by the noble Lord, Lord Goodhart. If I have not addressed some issues I shall be more than happy to deal with them.

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