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Lord Mackay of Clashfern: My Lords, I think that the noble and learned Lord's explanation of the previous amendment in fact related to Amendment No. 11. My only question is: what will be the position of the President of the Supreme Court? Will he be the head of the judiciary for the United Kingdom as a whole?
Lord Falconer of Thoroton: My Lords, he will not be the head of the judiciary for the United Kingdom as a whole; he will simply be the President of the Supreme Court. Therefore, he will be the chief judge in the Supreme Court but he will have no function as the head of the judiciary in any of the jurisdictions in the United Kingdom.
Lord Falconer of Thoroton: My Lords, that will be a matter to be agreed between the President of the Supreme Court and the Lord Chief Justice of England and Wales or the Lord President in Scotland or the Lord Chief Justice in Northern Ireland if he were able to sit there.
Lord Falconer of Thoroton: My Lords, he will still be the president of all the courts of England and Wales. The purpose of calling him the President of the Courts of England and Wales is to make it absolutely clear that he is now in charge of all the courts, including the magistrates' courts.
Lord Goodhart: My Lords, I seek clarification of one point. If the Lord Chief Justice is invited to sit as a judge of the Supreme Court, surely he will then be an
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acting judge, invited there by the President of the Supreme Court, and surely it will be the President of the Supreme Court who will preside.
The noble Duke said: My Lords, in moving Amendment No. 12, I wish to speak also to Amendments Nos. 13 and 14. The amendment makes clear the territorial limitation of the new office of Head of Criminal Justice. The creation of new offices such as Head of Criminal Justice and Deputy Head of Criminal Justice creates the opportunity for clarity and transparency. The clause applies only in England and Wales, and so the territorial and jurisdictional limitations of the new office should be clearly stated.
Clause 3 clearly states that it deals with the President of the Courts of England and Wales, and subsection (1) defines the Lord Chief Justice as President of the Courts of England and Wales. This maintains the clarity as against the Lord President of the Court of Session in Scotlanda post that has been in existence since 1532. When we come to Clause 4, it seems logical that the Head of Criminal Justice and the Deputy Head of Criminal Justice should also be so distinguished.
The Law Society of Scotland, which initiated this set of amendments, has let me know that on many occasions it has experienced misconceptions in the media generated because the jurisdictional limits of certain bodies in the various constituent legal systems in the United Kingdom are not clear enough.
I also wish to speak to Amendment No. 15, and to Amendments Nos. 16 and 17. Amendment No. 15 makes clear the similar territorial limitation of the new office of the Head of Family Justice. It is easy to see that the newspapers in Scotland might light on a judgment by Lady Justice Butler-Sloss as president of the Family Division and speak of such-and-such a ruling in family law in Scotland, whereas in fact we have jealously managed to guard the difference in the law between the two countries. Practically, none of us now knows where we stand on the matter of smacking children.
These amendments to Clauses 4 and 5 are designed to reinforce the clarity and to ensure that there is no opportunity for confusion if commentators or reporters seek to explain the decisions of the Head of Criminal Justice or the Head of Family Justice or their deputies. There are some occasions when the aspects of the legal system are denominated on the basis of
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jurisdiction; for example, the Council on Tribunals has its Scottish committee; the Scottish Solicitors' Discipline Tribunal is distinguished from the Discipline Tribunal; and there is a Lands Tribunal and a Lands Tribunal for Scotland. As one can see, the distinction between the main England and Wales body and the Scottish body needs to be kept clear.
Baroness Carnegy of Lour: My Lords, there has been a long history of confusion of this kind, where a body or an officer has had jurisdiction over only England and Wales but the title does not say so. An example is the Highways Agency. It is called the Highways Agency, but it has nothing to do with highways in Scotland. Very often people in Scotland write to the Highways Agency and want to know about their highways, but it has nothing to do with them. That is an important point in relation to clarity.
I hope that the alacrity with which the noble and learned Lord leapt up means that he will accept the amendments. They are important. Such jobs should say whether they apply to England and Wales or to England or to the whole of the United Kingdom. I hope that he will accept the amendments.
Lord Mackay of Clashfern: My Lords, I support the amendment. On the nature of the clause, I feel rather sad that the Lord Chief Justice is to be the Head of Criminal Justice. In my submission, the Lord Chief Justice is the head of all justice; in my view, he is the senior judge in criminal and civil matters. I feel that crime should be given a particular place in relation to the Lord Chief Justice appointment. I take only a marginal interest in the matter, but I wonder whether the president of the Queen's Bench Division would not be a better Head of Criminal Justice, leaving the Lord Chief Justice as the fountain of all justice in England and Wales.
Lord Falconer of Thoroton: My Lords, I can see the Lord Chief Justice looking at the noble and learned Lord warmly in relation to that comment. I shall reply to the points made by the noble Duke and the noble Baroness in a moment. On the role of the Lord Chief Justice, Clause 4(2) says:
Whatever other functions the Lord Chief Justice has, traditionally in England and Wales he has been the face of the criminal justice system as far as the judiciary is concerned. We believe that the Bill should reflect that, but it allows the Lord Chief Justice, if he so wishes, to appoint someone else to be the Head of Criminal Justice. That judgment will be made at the time. I am not unsympathetic to the point that has
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been made. Let us start from the proposition that he is the Head of Criminal Justice, but if he or she does not want to be, he or she has the means to change that.
On the points made by the noble Duke and the noble Baroness, I believe that it is accepted implicitly in what they say that the extent of the appointment is only in England and Wales. That is clear from Clause 106 of the Bill, which makes it absolutely explicit that the Head of Criminal Justice and the Head of Family Justice are to apply only to England and Wales.
With the greatest of respect, the most optimistic hope of the noble Duke and the noble Baroness is that when newspapers refer to the Head of Criminal Justice hereinafter they will put in the words "of England and Wales". Sadly, they very rarely say the "Lord Chief Justice of England and Wales", which is the official title of the Lord Chief Justice. I see very little merit in making the Bill even longer in the fond hope that English newspapersit would not be in the Scottish newspaperswill hereinafter put in the words "of England and Wales".
While I am very sympathetic to the point made, I fear that the proposal does not address the particular problem once one accepts that Clause 106 makes it clear that the ambit of the jobs is only England and Wales. With sympathy, I am sorry.
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