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In addition I expect to bring forward additional amendments to Schedule 4 to bring functions not currently in the schedule into line with the concordat. There are major amendments which will introduce a single, uniform practice direction-making power for civil and family business across all levels of court, as agreed with the Lord Chief Justice in the concordat. Finally, there will be some minor amendments to provisions already in Schedule 4 to bring them into line with the concordat, to make other necessary amendments, and to correct errors and inconsistencies identified in the current print of the Bill.

I return to the amendments before us now. As I have said, they bring the Bill into line with the decision of this place to retain the Lord Chancellor. I hope that those of your Lordships with a particular interest in the matter will have already received the letter I sent last week explaining these changes in detail, and that we need not trouble ourselves today with prolonged consideration of them. As has become our custom regarding this Bill, I am happy to deal informally with any queries your Lordships have, and bring back any necessary changes at Third Reading.

I do not think that it is necessary for me to go through any of the particular changes in this group. I
 
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should perhaps draw attention to Clause 84, which amends Section 10 of the Courts Act 2003 that relates to the appointments of lay justices, to provide with consultation of relevant people. Amendment No. 167 replaces the reference to the Secretary of State for Constitutional Affairs in Clause 84 with a reference to the Lord Chancellor. I do not think that there are any other changes to which it is sensible to draw your Lordships' attention.

Changes have been made to the way in which justices' clerks are appointed and reassigned, and my noble friend Lady Ashton outlined at length in Committee why these changes are so important. This schedule now contains the promised provision. I am convinced that these changes, alongside the existing statutory protection of the independence of justices' clerks and the non-statutory protections agreed with the judiciary that my noble friend outlined in Committee, will ensure that the judicial independence of justices' clerks continues to be protected. I draw attention specifically to that, because the role of justices' clerks has caused considerable concern among Members of this House. Therefore, it is right to say that there are provisions in Part 2 of Schedule 4 that relate to that.

I think that is all I need to draw attention to, and I apologise for not doing so before the dinner adjournment. This amendment is totally and completely uncontroversial, but it relates to the whole group of amendments. I beg to move.

Lord Kingsland: My Lords, I recall that when this matter came to your Lordships' attention earlier this year, the question was posed to the noble and learned Lord the Lord Chancellor by the noble Lord, Lord Renton, about the Cestui que Vie Act 1707. Has the noble and learned Lord the Lord Chancellor had the opportunity to delve into the mysteries of this legislation and take the matter up with the noble Lord?

Lord Falconer of Thoroton: My Lords, first, I congratulate the noble Lord on his memory. Second, I congratulate him on almost a clean ball at this point, sending my stumps flying in every direction.

No—although I cannot definitively say no—I will need to check this. My recollection is that I wrote a letter on that, but I will instantly check when I get back to my department and provide the noble Lord with a copy—

Baroness Ashton of Upholland: You did.

Lord Falconer of Thoroton: My Lords, encouragingly, but not convincingly, I am being told that I did write such a letter. I will send a copy to the noble Lord. If I did not send such a letter, I will instantly write one and send it. I apologise for not being in entire grip of that aspect.

Lord Kingsland: My Lords, I am much obliged to the noble and learned Lord.
 
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Lord Mackay of Clashfern: My Lords, the noble and learned Lord referred to the justices' clerks. I have certainly been conscious of a certain, what shall I say, anxiety in that quarter. I am not altogether unaware of this having been expressed some years back in legislation that was put forward for altering the arrangements for the magistrates' courts.

Is there any line management arrangement for the justices' clerks? Are they completely independent, or are they answerable to managers within the Courts Service agency?

Lord Falconer of Thoroton: My Lords, they have line management responsibilities, and that is what is causing the problem, in that the Courts Act 2003 in effect made the justices' clerks civil servants, and therefore responsible, in an employment way, to people above them. The concern was that if they were not delivering on things that might be perceived to be the goals of the administration that might be prejudicial to them in relation to promotion or movement.

Therefore, we have sought to provide arrangements that protect the sanctity and objectivity of the process by which judgments are made about the appointment of justices' clerks and the movement or promotion of justices' clerks, and to achieve that by involving the Lord Chief Justice if there is any question in relation to that. The direct answer to the question asked by the noble and learned Lord is yes, they are responsible to a manager in some respects. That is why, I believe, the anxiety arose.

Lord Goodhart: My Lords, before the noble and learned Lord sits down, I should say that we have been in communication with the Justices' Clerks' Society, which is not satisfied with the steps that have been taken so far. There is an amendment tabled in our name which will be taken at a considerably later stage of the Bill, and we shall return to that issue on that occasion, when we will take into account the changes proposed in this amendment.

Lord Falconer of Thoroton: My Lords, I accept and understand that. My amendments are not in any way seeking to preclude debate and the resolution of the issue that the noble Lord is raising.

Lord Goodhart: My Lords, I entirely accept that.

On Question, amendment agreed to.

Clause 10 [The Great Seal]:

Lord Campbell of Alloway moved Amendment No. 27:

The noble Lord said: My Lords, in moving the amendment, perhaps I may say that I shall also move Amendment No. 28 formally, in view of the undertakings that have been given by the noble and
 
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learned Lord, Lord Falconer of Thoroton. Their effect is to retain keepership of the Great Seal with the Lord Chancellor. I beg to move.

Baroness Ashton of Upholland: My Lords, as was stated in Committee on 11 October, the Lord Chancellor will continue to hold the Great Seal. I promised to bring forward amendments to the Bill to that effect. I said that I would look at the arrangements in respect of the Commissioners of the Great Seal. I am satisfied that further legislative changes are not necessary. The noble Lord, Lord Campbell of Alloway, has pipped me to the post in tabling Amendments Nos. 27 and 28, which remove Clause 10 and Schedule 5, and I am happy to accept them.

Lord Campbell of Alloway: My Lords, I am very much obliged to the noble Baroness.

On Question, amendment agreed to.

Schedule 5 [Amendments relating to the Great Seal]:

Lord Campbell of Alloway moved Amendment No. 28:

On Question, amendment agreed to.

Clause 11 [Speakership of the House of Lords]:

Lord Campbell of Alloway moved Amendment No. 29:

The noble Lord said: My Lords, this amendment is a little more difficult. It is concerned with the Speakership of the House. I shall also speak to Amendment No. 31. It would leave out Schedule 6, which is also concerned with the Speakership.

The problem is that I have made a mistake in the drafting of this amendment, so I shall deal with it as a probing amendment. It was tabled in consultation with my noble friend Lord Kingsland, a brother Silk at the Bar, so inevitably it was subject to error. When I saw the Marshalled List, I thought that we had made an error and I was advised that the amendment was defective—and that the appropriate amendment was to leave out Clause 11 and Schedule 6 because, under Standing Orders, Speakership of the House is not a matter for primary legislation and, therefore, should not be left in.

Having confessed my error, I had an informal word with the noble and learned Lord, Lord Falconer, and I think that he understands the position. The merits of the arguments as to whether it should be the Lord Chancellor or an elected Speaker, as was proposed by the Select Committee, are for another day. However, I point out that the report of the Select Committee was wholly based on the assumption that we did not have a Lord Chancellor, but now we do. So that is somewhat otiose.

The merits have been spoken to on a previous occasion, certainly by me at Second Reading and on Report. I know that noble Lords, on some other occasion—not on primary legislation—will wish to speak on the merits, in particular my noble friend Lord
 
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Dean of Harptree. After I have heard what your Lordships say, I shall eventually withdraw the amendment so that this matter may be put right at Third Reading. I beg to move.


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