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Lord Waddington moved Amendment No. 35:

"( ) This section shall have effect subject to section (Greater Manchester, Merseyside and Lancashire)."

The noble Lord said: My Lords, as it stands, the Bill takes from the Chancellor of the Duchy of Lancaster his current responsibilities for the appointment of magistrates within the duchy and gives those responsibilities to the Lord Chancellor. Although they look complicated, the amendments have the effect simply of leaving things as they are at present.

I have registered my concern about this matter on a number of occasions, and I thank the noble Baroness for her patience both on the Floor of the House and in letters to me. She could not have been more courteous and punctilious.

I am not suggesting that this is one of the most important issues in the Bill; of course it is not. However, in expressing my concern, I know that I am reflecting the views of many people in Lancashire who attach a great deal of importance to the work of the duchy and the office of Chancellor. They feel as I do; namely, that the Government's determination to go ahead with the proposal to take away from the Chancellor an important power is an example of the Administration's obsession with modernisation for modernisation's sake and of its love of change for the sake of uniformity rather than when it is necessary to achieve economy or efficiency. It also shows a rather sad contempt for history and tradition.

No one would suggest that successive Chancellors of the Duchy have not carried out their duties efficiently and in conformity with the highest standards. I know that my noble friend Lord Hunt of Wirral, who has added his name to the amendment, was most assiduous and conscientious in the carrying out of his duchy duties. Furthermore, no one has alleged that any Chancellor of the Duchy, at least during my time in Parliament, has allowed different criteria to be applied in the making of appointments to the Bench in the duchy area from those applied in the making of appointments elsewhere in the country. Therefore, no one could suggest that what is being proposed by the Lord Chancellor will lead to consistency where consistency is now lacking. So, in view of the acceptance of the need for consistency, the fact that the Lord Chancellor is to launch a national recruitment strategy for lay magistrates—an argument raised by the noble Baroness—seems neither here nor there. In short, I know of no mischief which needs to be addressed or which would be removed by the change. Furthermore, I certainly know of no public call for such a change.

I am sure that the Minister knows that the proposal has caused great annoyance where I come from, not least because it follows a similar proposal put out to

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consultation in 2000 and withdrawn when the consultation exercise showed minimal support for change. The likes of myself, along with many others in public life in the North West, were consulted in that year but were not written to a second time before the publication of the Bill to be told that there would be no second consultation exercise. In a letter from the Minister dated 14th February, I am told that what happened was that,

    "a transfer of responsibility was cleared with the Chancellor of the Duchy".

Such a clearing between two departments does not begin to justify a change any more than would any other say-so of government.

However, the Minister did point out in her letter to me that, after publication of the Auld report, the Government sought comments on Sir Robin's recommendations, and that over 80 per cent of those who responded supported his view of the matter. But when one looks to see what was Sir Robin's view, one does not find any comfort for the Government whatever. He certainly does not support the line taken by the Lord Chancellor in the Bill. Some noble Lords may have failed to appreciate that. This is not a case of the consultation exercise undertaken in 2000 taking place but then, as it were, being rendered obsolete by the Auld report. Quite the contrary.

One has to start by looking at paragraph 62 in chapter 4 of the report where Sir Robin emphasises that the local advisory committees in the duchy area are constituted in precisely the same way as advisory committees in the rest of the country, and that their manner of working is the same. In paragraph 63 he goes on:

    "This anomaly of a 'fourth' criminal justice Minister, with no formal role in the system, other than to appoint magistrates for this relatively small part of the country, is one of the interesting relics of the acquisition by Henry IV in 1399 of the estates and jurisdiction of the Duchy of Lancaster. Consideration has recently been given to removing it. That would no doubt be tidy. But local traditions matter and if, as appears to be the case, this one creates no harmful inconsistencies as between the Duchy and the country as a whole, I can see no reason for changing it so long as the magistrates' courts remain separate from the Crown Court".

He concludes by saying,

    "But, if, as I recommend in Chapter 7, they become part of a unified Criminal Court, there would be little justification of practical sense in preserving the anomaly".

We know that Sir Robin's recommendation in Chapter 7 was not accepted by the Government; that the magistrates' courts will remain separate from the Crown Court and will not become part of a unified criminal court. So in no way can the Government suggest that the Auld report is a reason for rejecting these amendments. Quite the contrary. In no way will a unified courts administration make impossible, or even inconvenient, the power of appointment of magistrates in the Duchy remaining with the Chancellor of the Duchy.

We should keep old traditions when they cause no harm and in no way militate against the public interest. There is no point in scrapping arrangements which have stood the test of time—which are part of the rich

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tapestry of our history and which have formed a part of our system of justice since the 14th century—if they work perfectly well. That is why I have tabled these amendments today. I beg to move.

Lord Hunt of Wirral: My Lords, I strongly support my noble friend, who has spoken so eloquently and convincingly on this issue. He is right to put the Auld report in context. I respectfully point out to the Minister that she did not quote all the relevant sections of the Auld report in the letter that she wrote to my noble friend on 14th February and which she copied to me. Now that my noble friend has read in full the relevant sections he has put the matter more fully into context. He has done the House a service in reminding us of the words in the Auld report.

As I understand it, it is to be a decision for the Prime Minister. It would be helpful if the noble Baroness could indicate the extent of the discussions that have been held with the Prime Minister. On several occasions I have heard him refer to the "importance of history". I even recollect a phrase he used—which he asserted was not a cliché—when he said that he could feel the hand of history on his shoulder. The hand of history is now on the shoulder of the noble Baroness. As my noble friend pointed out, this subject has a long history. Chancellors of the Duchy have made these appointments since the 14th century.

There have been two major occasions since the 14th century on which close scrutiny and consultations were carried out. One was in 1948, when a Royal Commission was appointed formally to examine what was described at that time—no doubt by a Minister equally inspired by the Treasury to move for uniformity—as an "anomaly". That Royal Commission concluded that the existing system should continue as opinion in Lancashire favoured doing so and it seemed that little damage would be caused as a result.

There was then a consultation in 2000, only three years ago. As I have pointed out to the Minister on more than one occasion, the list of those consulted was enormous. It included all Members of Parliament; a range of political parties; a range of representatives of local government; a range of legal representatives; and all former Chancellors of the Duchy. We spent some time and effort in responding to the consultation initiated by Marjorie Mowlam, who concluded—as had the Royal Commission—that the weight of opinion was strongly in favour of continuing this practice by the Chancellor of the Duchy of Lancaster.

The noble Baroness said that the majority of respondents supported the retention of the Chancellor's role and added the words "at that time". With my noble friend I have sought to re-examine the issue with a number of people who were consulted at that time. All of those to whom I have spoken told me that they had not been consulted again and that they had not changed their mind. Although the Minister may say that the respondents "at that time" supported the Chancellor of the Duchy, I am not aware of anyone who has changed their mind since the last consultation.

My noble friend has done the House a great service in raising this issue again. I very strongly support him.

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1.15 p.m.

Baroness Scotland of Asthal: My Lords, I thank both noble Lords for speaking to the amendment with such charm and eloquence. I should say to the noble Lord, Lord Hunt, that I do indeed feel the hand of history pressing heavy on my shoulder.

I very much regret that the noble Lord, Lord Waddington, believes that the Government have a sad contempt for history. I sincerely wish to disabuse him of that view because we have a high and proper regard for the value and importance of the lessons of history. That can be seen through a proper scrutiny of what the Government have done.

In what I say next I cast no aspersion whatever on the previous incumbents of the Chancellorship of the Duchy of Lancaster or on the present incumbent, who is greatly esteemed by us all. He follows a long tradition of high quality Ministers.

I say straightaway that I cannot accept the amendment and will resist it. The noble Lord, Lord Waddington, is right. There will not be a unified criminal court. But there will be a unified administration of the courts—a significant distinction which Sir Robin Auld commended. In order to deliver on a unified court administration it will be important, as we have established, that the procedures for appointing magistrates are common across the country.

The noble Lords have proposed amendments that seek to reinstate the responsibilities of the Duchy of Lancaster in regard to the appointment and removal of magistrates in the Duchy area. In Committee, we had a short exchange on an earlier amendment and, as the noble Lord said, we have had, through correspondence, many exchanges in relation to this amendment. As I said then, I hope that we have demonstrated our regard for the magistracy and that we have been sympathetic to its concerns.

I know that noble Lords are concerned that the transfer of the Duchy's responsibility is unwelcome to some magistrates in the region. At Second Reading, several noble Lords spoke out in similar terms in regard to the supplemental list. We made no bones about accepting the list's reinstatement. But the current split between the Duchy and the Lord Chancellor is more difficult to retain.

As outlined in Committee on 4th February, the Lord Chancellor is committed to a national recruitment strategy for lay magistrates, an issue we have discussed today. This is a vitally important step which is intended to raise the profile of the lay magistracy and to ensure that magistrates represent the communities they serve. It will apply across the jurisdiction. Providing the Lord Chancellor with responsibility for the appointment of all magistrates in England and Wales complements that strategy and should be seen as part of the Auld package of reforms.

The current split of responsibility is anomalous even under the current system. It does not apply to professional judges. It does not apply to other ancient Duchies. It is claimed that the Duchy magistrates are treated differently—or rather, I should ask whether that is the claim, because I do not believe that it ever

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has been the case that the Duchy magistrates are treated differently from the way in which magistrates are treated in other areas. Indeed, I do not believe it to be so, or that that makes the split indefensible. I do not know whether it is suggested that they are treated similarly. If so, the Bill should not prejudice them.

Transferring the Duchy's responsibilities does not realistically affect the local connection. Both the Lord Chancellor and the Chancellor of the Duchy of Lancaster appoint magistrates on behalf of her Majesty the Queen. Offices currently based in London are processing the recommendations of advisory committees. In both cases, advisory committees are the most meaningful links to local communities. There is no suggestion that the role and responsibilities of advisory committees would undergo change as a result of the delegated appointing authority moving from one ministry to another. The local connection would be fully preserved.

In any event, however arguable the split may be currently, under the other changes made by this Bill, it will not make sense at all. There will be a nation-wide unified administration. There is to be a single commission area; magistrates will have a national jurisdiction—as do professional judges. I ask rhetorically: how can it be right that two Ministers should appoint or remove magistrates, according, presumably, to the area to which they are first assigned on appointment but they retain national jurisdiction?

I turn to consultation—an issue upon which I wrote to the noble Lord, Lord Waddington, and one that has been raised again this morning. As I said in my letter, the noble Lord is right to say that there was a consultation exercise on the transfer of these responsibilities in 2000. Although a number of respondents saw the case for change, the majority of respondents at that time supported the retention of the role of the Chancellor of the Duchy of Lancaster. So the matter was not pursued at that stage.

The possibility of transferring responsibility was then raised again by Sir Robin Auld in his authoritative review of the criminal justice system. The noble Lord, Lord Waddington, read out the recommendation made by Sir Robin, two parts of which I should like to emphasise. First, he specifically said:

    "In the event of the establishment of a unified criminal court the present division of responsibility . . . between the Lord Chancellor's Department and the Duchy of Lancaster should be reviewed".

At that time he envisaged that, in the creation of a joint unified criminal court, there would be a joint administration to manage the court. He then went on to say that,

    "there would be little justification or practical sense in preserving the anomaly",

if that unification took place.

With the greatest respect to the noble Lord, I do not believe that one can separate the two and say, "You didn't have a unified criminal court, so that idea goes out of the window". The nature of the unification was to enable the courts' administration to act together, one would have a greater flow from one court to

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another, and there would be a degree of synergy. That is what we are trying to create with a unified administration.

The Government sought comments on Sir Robin's report. The responses that I have seen do not suggest to me a unified rejection of this proposal even from within the Duchy area. In fact, of the several specific responses on the point, Duchy and non-Duchy, the substantial majority support a review of the split. There are several further responses, which, without mentioning the Duchy, express general support for Recommendation 8. The latter include the Duchy's Advisory Committee for the Metropolitan Petty Sessions Area of Trafford.

I can provide details in that respect, if required. The Merseyside Magistrates' Association said that it wished to support the status quo, for reasons of local tradition. But one Duchy Bench—North Sefton—supported a review of the current split. The Greater Manchester Magistrates' Court Committee also responded and supported a review of the split. I have not found other local MCCs or advisory committees expressing a view in favour of the split. Therefore, on a less local note, the Association of Justices' Chief Executives thought that the Auld review provides an opportunity for consolidating these responsibilities under the Lord Chancellor.

Although the Government have stopped short of establishing a unified criminal court, they have decided to unify the management of the courts and provide much closer alignment between the magistrates' courts and the Crown Court, and to provide a national jurisdiction for magistrates. The transfer from the Duchy of Lancaster to the Lord Chancellor is fully consistent with those changes.

I know that this is an emotive rather than a strictly practical issue. However, I hope that I have explained why we do not believe that the amendment can reasonably be accepted. I believe that there is now an outline agreement with the Duchy Office that will, or may, provide a solution to one of the issues taxing Duchy magistrates. In the event of amalgamation, the Lord Chancellor's Department has agreed to supply the Duchy Office with a list of all new appointments of lay magistrates in the County Palatine so that the Duchy Office can issue a certificate or letter to those magistrates thanking them for volunteering their services to local justice in the Duchy. That will be in addition to the letter of appointment that will be signed by the Lord Chancellor.

In approaching the matter in a practical way, we hope that the link between the Duchy and the magistrates appointed in the Duchy area will be re-emphasised and highlighted; and, indeed, that it may go some way towards meeting the emotional concerns—I say "emotional", but there is an issue of sentiment and connection involved against which we do not wish to trespass. I hope that that practical way of dealing with the process will enable us not only to

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achieve the unification that will inure to the benefit of all the people in the Duchy of Lancaster but also to ensure that the link will be preserved in a way that many may feel is both complementary and pleasing. I trust that noble Lords will feel satisfied with my response.

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