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Baroness Anelay of St Johns: My Lords, I thank the Minister for responding so carefully and fully to what was a probing amendment. At Third Reading we cannot call it that, so with one eye to my left to the Clerk of the Parliaments, I make clear that it was to clear up remaining uncertainties to make sure that I was clearly within the rules. I did give advance notice to the Minister's office that that was the purpose of these amendments because of the views which have been brought to me from outwith this House.

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I am grateful to the noble Lord, Lord Phillips of Sudbury, for his support. The noble Lord, Lord Clinton-Davis, said that I did not need to worry because there is already a provision in the Bill for the Lord Chancellor to consult the courts board. I was seeking from the Minister—and she gave it in abundance—information broader than consultation with the courts board. This is consultation about how the whole process of setting up the courts administration unified system will be taken forward as soon as this Bill becomes an Act.

I am very grateful to the Minister. I am sure that the bodies outwith this House will look carefully at her words. If they wish, they will have the opportunity to take up any of these matters in another place when the Bill passes there. It is right that we take time to digest what the noble Baroness has so carefully set out. At this stage I shall not try to respond because I believe that it might be unhelpful if I did. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 3:

    Page 3, line 33, at end insert—

"(6A) When making an order under subsection (2) the Lord Chancellor shall have regard to the desirability of ensuring that the areas specified in the order are coterminous with—
(a) those for the time being established under Schedule 1 to the Police Act 1996 (c. 16), and
(b) the area comprising the Metropolitan Police District and the City of London police area."

The noble Baroness said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 5 [Functions of courts boards]:

Baroness Scotland of Asthal moved Amendment No. 4:

    Page 4, line 4, leave out "provided" and insert "made"

The noble Baroness said: My Lords, subsection(1) of Clause 5 refers to the duty of the courts boards,

    "to scrutinise, review and make recommendations"

so it is more consistent to use the term "made" rather than "provided" in subsection (2).

As regards Amendment No. 5, it is a drafting amendment to the new subsection (3) of Clause 5 moved by the noble Lord, Lord Goodhart, and accepted by the House on Report. Subsection (3) requires the Lord Chancellor to give written reasons to a courts board in the event that he rejected its recommendations about a final business plan. We have considered the wording of the amendment further and suggest that it could be improved. I hope that the noble Lord agrees.

The new wording inserted in the Bill refers to recommendations,

    "about the final business plan".

But once a business plan is "final" there is little reason for a board to make a recommendation "about" it. If it is final, it cannot be changed until the next plans are made. However, where a courts board disagrees with something in a final plan, what it may do is say that, in the light of that plan, it wishes to make a recommendation—as

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subsection (1) envisages—about the way in which the Lord Chancellor is discharging his general duty in this area as described in the final business plan, a board would be able to make recommendations to the Lord Chancellor about how it believed that he should be discharging his general duty. The obligation to give written reasons would arise in relation to the rejection of those recommendations, and would amount to an explanation of why the Lord Chancellor was implementing the plan without their approval.

This is a rather technical point, but the amendment achieves what the noble Lord intended. I beg to move.

4 p.m.

Lord Goodhart: My Lords, I accept that Amendment No. 5 is a drafting improvement. I considered that if there were to be a series of drafts, it would be inappropriate to have to give reasons when rejecting recommendations made in the early stages. However, when what was anticipated to be the final version, albeit still in draft, was produced, if recommendations were made at that stage that were not accepted, the Lord Chancellor should be required to give a reason. Although the amendment has a slightly different method of operation, it achieves substantially the same result. Since the Government have decided to make improvements to the draft of subsection (3), is the inference to be drawn that they would not waste their time on something that they were intending to throw out in the other place? Do the Government intend that subsection (3), as amended, will remain in the Bill?

Baroness Anelay of St Johns: My Lords, on Report, I put my name to the amendment of the noble Lord, Lord Goodhart. I agree with him and share his hope.

Baroness Scotland of Asthal: My Lords, I am pleased that the noble Lords have that hope. Of course, I could not possibly comment.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 5:

    Page 4, line 6, leave out from "board" to "written" in line 7 and insert "under subsection (1) as a result of the board's consideration of a final business plan, he must give the board his"

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 6:

    Page 4, line 14, leave out subsections (5) and (6) and insert—

"(5) The Lord Chancellor must make regulations about the way in which boards should carry out their functions under subsection (1).
(6) The regulations may in particular contain provisions—
(a) about the procedures to be followed in connection with draft and final business plans;
(b) conferring on the boards functions supplementing their functions under subsection (1)."

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The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendments Nos. 9, 10 and 11 and to government Amendment No. 8.

The amendments are substantially the same as those that I tabled on Report as part of my amendments to what were Clauses 4 and 5. I did not press them at that stage and I retable them simply to give the Minister the opportunity to fulfil the undertaking that she gave on Report to my noble and learned friend Lord Mackay of Clashfern. She has responded fully and helpfully through her own amendments, so I shall not waste time. I shall give the Minister the opportunity to set our minds at rest. I beg to move.

Lord Renton: My Lords, I attach importance to the amendment. With great respect to the Government, it really does matter when establishing the new boards, which will be important in the constitution of our magistrates' jurisdiction, that matters should be clear. For them merely to be given guidance would not be clear or strong enough. The way that the boards are run will affect the administration of justice, and therefore my noble friend is right in suggesting that the definition of their functions should be part of regulations—governed by Parliament, I would hope—rather than mere guidance, which could be vague.

We must turn to Schedule 1 in order to find out exactly how important the courts boards will be and what they will have to do. I do not want to weary your Lordships by going through the schedule, but if one glances at it one finds that mere guidance would not be precise enough. We must have regulations.

Baroness Scotland of Asthal: My Lords, I hope that I can quieten the beating heart of the noble Lord, Lord Renton, on this issue. The noble and learned Lord, Lord Mackay of Clashfern, whom, I see with great pleasure, is in his place this afternoon, raised some concerns on Report about what is now subsection (6)(b) of Clause 5. He noted that it would be novel for guidance to modify the statutory functions of the courts boards. The Government promised to consider the matter further and in the light of what the noble and learned Lord said we have decided to remove this paragraph. As in so many things, the noble and learned Lord has proved wise.

A future Lord Chancellor who wishes to amend or supplement the functions of courts boards will be able to do so through primary legislation. I thank the noble and learned Lord for raising this point and the noble Baroness for indicating that she will not press Amendments Nos. 6, 9, 10 and 11 pursuant to the changes that we have made. I hope that all concerned are satisfied.

Lord Mackay of Clashfern: My Lords, I thank the Minister for giving effect to my concern. I venture to think that this is an improvement on the Bill. I also thank her officials for the brave way in which, in

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correspondence with me, they sought to justify what was there before. Apparently, they have now arrived at an even more rigorous view.

Baroness Anelay of St Johns: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Baroness Scotland of Asthal moved Amendment No. 8:

    Page 4, line 19, leave out paragraph (b).

On Question, amendment agreed to.

[Amendments Nos. 9 to 11 not moved.]

Clause 8 [Local justice areas]:

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