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The Lord Bishop of Coventry: My Lords, is the Minister aware that the Church of England, along with the Methodist Church and the United Reformed Church, has recently been negotiating with the rural division of the Post Office to seek innovative ways in which church buildings and chapels might host some of the services being displaced by the closure of rural post offices? If he is aware of that—indeed, even if he is not—will he bring his influence to bear on the

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heritage lobby to ensure that when adaptations of buildings are proposed, it will be lenient in its approach to those proposals? Will he also confirm that when such projects come to fruition, adequate funding is in place to cover the start-up costs?

Lord Truscott: My Lords, the right reverend Prelate has put forward some interesting ideas. I will take them back to officials in my department and we will consider them fully.

Lord Tomlinson: My Lords, does the Minister agree that rather than just going through this artificial process of establishing a minimum number of post offices, it makes more sense to establish a minimum use for post offices if they are to be kept open? Otherwise it makes a complete mockery of the laws of supply and demand which Members opposite usually worship in every other respect.

Lord Truscott: My Lords, my noble friend makes a valid point. Post offices have been losing £4 million a week in the past year. An average of 16 people a week use each of the 800 smallest rural post offices, at a cost of £17 per visit. That is clearly not sustainable. We will look at that when we consult on the future of rural sub-post offices.

Baroness Wilcox: My Lords, my noble friend chose to ask her Question in National Post Office Week. As we speak, a huge rally is taking place in the Methodist Central Hall. Thousands of people are over there, fighting for their post offices. Does the Minister agree that the local post office is an ideal location for a bit of constructive thinking on how to deliver the range of local and central government services that the general public in this country would expect from a Labour Government?

Lord Truscott: My Lords:

That is the joint statement from the people who are meeting in the Methodist Central Hall. I am happy to endorse it.

Iraq: Destruction of Hercules C130

3 pm

Lord Garden asked Her Majesty’s Government:

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Drayson): My Lords, a Hercules C130 on a routine mission was involved in an incident on landing in Maysan on 12 February. The initial investigation suggests that it was struck by an improvised explosive device similar to a roadside

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bomb. After assessment of the damage, it was concluded that the aircraft could not be recovered without undue risk to personnel so the aircraft was destroyed by UK forces. The current market value of a C130J is in the region of £45 million.

Lord Garden: My Lords, I am most grateful to the Minister for a very full and helpful Answer. I am glad that none of the crew aboard the aircraft suffered serious injury. How does he reconcile the very positive statements about the security situation in Maysan province, which we were talking about handing over to the Iraqis, with the fact that we have just destroyed £45 million worth of aircraft and, perhaps more importantly, a key enabling capability with the modern C130J?

Lord Drayson: My Lords, it is in the nature of the operations that we carry out; I can understand the noble Lord’s point. We need to recognise that Maysan province is relatively peaceful, but relative for Maysan, which has always been rather the wild west within Iraq. We are reviewing closely the security situation in Maysan province. We still believe that it will be possible in the relatively near future—we believe in the spring—to make the transition to the Iraqi security forces in that province. As we have always said, that strategy and its implementation are based on conditions on the ground.

Lord Craig of Radley: My Lord, how many C130 aircraft have been lost since January 2006? Bearing in mind the acute, acknowledged difficulties that the air transport force is having in meeting the requirements in two theatres of war, what steps are Her Majesty’s Government taking to replace the lost C130 aircraft?

Lord Drayson: My Lords, if my memory is correct, this is the second such C130 aircraft that we have lost; but if that is incorrect, I shall write to the noble and gallant Lord. We have a fleet of 25—now 24, with this loss—C130J aircraft, together with the C17 and the other aircraft in the air transport fleet. We regard that we have the necessary assets and recognise the pressure that the fleet is under. The necessary replacement for the lost aircraft is in transit as we speak, and we believe that we can continue to maintain a full operation in the region as a result.

Lord Astor of Hever: My Lords, Iraqi insurgents are going after American helicopters with some success. Is the Minister satisfied that our helicopters are adequately protected?

Lord Drayson: My Lords, I am satisfied that we are doing absolutely everything to provide all the protection that we can for our helicopters. We have invested upwards of £500 million in force protection across our operations, but we must recognise that those operations are dangerous; they are not risk-free. Despite all the action that we take and the professionalism, skill and bravery of our Armed Forces, they are dangerous operations. However, we are doing everything that we can to ensure the protection of our forces.

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Lord Garden: My Lords, following up the question of the noble and gallant Lord, Lord Craig, surely it is not good enough for the Minister just to say that we are down from 25 to 24 C130Js. This is an operational cost and it is above the attrition rate that was planned when the aircraft were procured. Should not the contingency fund purchase a replacement aircraft?

Lord Drayson: My Lords, it was not my intention to give that impression; I appreciate the opportunity to clarify that. It is a fleet of 25, and we have lost another C130J; therefore, following the normal procedure of a board of inquiry into this loss, there would be an application to the Treasury to the reserve under the normal procedure of recuperation for an aircraft lost owing to enemy action.

Lord Swinfen: My Lords, why should this wait until after a board of inquiry? Cannot an application for funds be made today?

Lord Drayson: That is the extant process, my Lords, which has always applied. It is important that lessons are learnt and that a board of inquiry takes place, following which there would be an application.

Bournemouth Borough Council Bill [HL]

3.05 pm

Read a second time, and committed to a Select Committee.

Manchester City Council Bill [HL]

Read a second time, and committed to a Select Committee.

Cluster Munitions (Prohibition) Bill [HL]

Read a third time, and passed, and sent to the Commons.

Tribunals, Courts and Enforcement Bill [HL]

3.06 pm

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Tribunals, Courts and Enforcement Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 18 [Limits of jurisdiction under section 15(1)]:

Lord Lloyd of Berwick moved Amendment No. 1:

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The noble and learned Lord said: My Lords, I moved a similar series of amendments on Report. I did not press the amendments on the understanding that there would be further discussions with the noble Baroness in order to meet certain concerns that the Lord Chief Justice had expressed. Such discussions have now taken place, with the result that I have added a new paragraph (b) to the proposed subsection (7A). This, I believe, gives the Lord Chief Justice and the Senior President of Tribunals all the flexibility to which they are entitled, while at the same time preserving the principle that I and others regard as so important. I have confirmed that the Lord Chief Justice is content with the amendment in its present form. That deals with Amendments Nos. 1 and 2.

As to Amendments Nos. 3, 4 and 5 my view is, has been and remains that they are a logical corollary of Amendments Nos. 1 and 2; others take a different view. Since, on any view, they are not a necessary corollary to Amendments Nos. 1 and 2, which can stand perfectly well on their own, I would be willing not to move Amendments Nos. 3, 4 and 5 if the noble Baroness could see her way to accepting Amendments Nos. 1 and 2. If, between now and the time when the Bill reaches the Commons, she can find a way of incorporating the substance of Amendments Nos. 3, 4 and 5 to everyone’s satisfaction then that would obviously be even better. I beg to move.

Lord Maclennan of Rogart: My Lords, I rise to express satisfaction that there has been such dialogue with the Lord Chief Justice. That appears to have arrived at a conclusion that both combines the objective of ensuring that judicial review is properly conducted in the upper tribunal by those with the authority to do so, and to discharge that extremely important role to complete satisfaction.

It is also satisfactory that the Lord Chief Justice has found an administratively convenient way to seek to give effect to the principle behind the amendments of the noble and learned Lord, Lord Lloyd of Berwick. We supported the noble and learned Lord’s earlier proposals and we are happy to transfer our support to the amendment today. We hope that it enjoys a positive response from the Government.

Lord Campbell of Alloway: My Lords, I support Amendments Nos. 1 and 2. Judicial review is a discretionary remedy, in which the powers of the upper tribunal are set out in Clause 12. The exercise of such powers requires judicial expertise, as proposed by these amendments, as a safeguard for due administration.

Statutory provision as judicial review, which this is, in no way alters the essence of the discretion, which goes to the root of the grant of leave and the grant of relief on substantive hearing. There is no entitlement to grant of leave and no entitlement to relief on hearing. This form of judicial relief, taken from the old prerogative writs, has been developed since the last war, which was not so long ago, in a form of administrative law by judge-made decision in the High Court and the Court of Appeal, and will no doubt continue to do so. We are concerned here with

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a point of law. True, if proportionality arises—which can, but need not, be a point of law—the facts must come into consideration. That is a matter of very expert judicial attention, not to be exercised by anyone other than a High Court judge or a member of the Court of Appeal.

It is not always understood, so I shall say so, that this process is not an appellate process. It is not concerned with the merits, but with what is, in a sense, a technical, procedural question in which this expertise, as proposed in these amendments, is wholly essential.

Lord Kingsland: My Lords, my name is also affixed to Amendments Nos. 1 to 5. Clauses 15 to 21 introduce a remarkable constitutional innovation. For the first time, the power to exercise judicial review jurisdiction has been delegated to a judicial level other than the High Court. That is, as a matter of principle, a remarkable change.

For that reason, the noble and learned Lord, Lord Lloyd of Berwick, and I introduced an amendment on Report requiring that the only judges to sit on the upper tribunal to hear judicial review matters be High Court judges—that is the High Court judges who sit in the Crown Office, now renamed the administrative court, to hear judicial review matters.

We were reluctant to dilute this principle. However, as is his duty, the Lord Chief Justice has pointed out that the volume of business likely to ensue in the upper tribunal in relation to the number of available High Court judges will, inevitably, mean that, in some circumstances, judges other than High Court judges will be required to sit. That is why the amendment has been modified in this way. The Lord Chief Justice is squarely on the face of the Bill and his responsibility is engaged to ensure that those judges, other than High Court judges, who will sit in the upper tribunal to hear judicial review matters, are of appropriate rank and quality.

I should like to underline everything that the noble and learned Lord, Lord Lloyd, has said about his satisfaction with the conclusion that has been reached. I am likewise satisfied.

Baroness Ashton of Upholland: My Lords, I am extremely grateful to the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Kingsland, not least for the work that they have done today in helping us to reach what I hope will be a very satisfactory conclusion. I am extremely grateful that the noble and learned Lord, Lloyd of Berwick, and the noble Lord, Lord Kingsland, have tabled revised amendments, which incorporate the flexibility that this whole Bill seeks to achieve for tribunals.

Amendments Nos. 1 and 2 retain the noble and learned Lord’s original concept: that judicial review cases transferred to the upper tribunal are to be heard by High Court judges or their equivalent. They also acknowledge that the Lord Chief Justice, the Lord President or the Lord Chief Justice of Northern Ireland, together with the senior president, can agree on others they consider suitable within the terms just described by the noble Lord, Lord Kingsland.

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On Report, the noble and learned Lord, Lord Lloyd of Berwick, tabled amendments which would have permitted only High Court judges or their equivalents to hear applications. The noble and learned Lord did not press the amendments and we agreed to explore further, not least with the Lord Chief Justice, what we might then do. The Lord Chief Justice wrote to me on 7 February and set out his thoughts, copying his letter to the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Kingsland, the noble Lord, Lord Thomas of Gresford, and Lord Justice Carnwath. The Lord Chief Justice was sympathetic to the issues raised, but did not support this amendment, because,

That flexibility would be disturbed if the Bill included a provision limiting such cases to High Court judges, regardless of the circumstances of the case. There are some persuasive examples of cases where judges of the upper tribunal will have the expertise to handle particular cases in the most appropriate way. Technical tax cases, for example, have been mentioned in our discussions.

Given that Amendments Nos. 1 and 2 meet the requirements of the Lord Chief Justice, as well as those of the Government, I am pleased to be able to accept them. I am sure that, as the noble and learned Lord has said, as the Bill progresses, we will look again at Amendments Nos. 3 to 5. We will, of course, look at Amendment Nos. 1 and 2 to make sure that we have got this absolutely right. I am delighted to accept Amendments Nos. 1 and 2 and I am grateful to the noble and learned Lord for agreeing not to press Amendments Nos. 3 to 5.

Lord Lloyd of Berwick: My Lords, I am also grateful to the noble Baroness for the courtesy that she has shown me throughout. I ought, perhaps, to apologise to the House for not repeating the speech I made on Report on the importance of preserving the distinction of the High Court judge. I thought that could be taken as read. Anyway, the point has been underlined, both by the noble Lord, Lord Campbell, and of course, by other speakers.

On Question, amendment agreed to.

Lord Lloyd of Berwick moved Amendment No. 2:

(a) a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or (b) such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.”

On Question, amendment agreed to.

Clause 19 [Transfer of judicial review applications from High Court]:

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[Amendments Nos. 3 to 5 not moved.]

Clause 24 [Mediation]:

Baroness Ashton of Upholland moved Amendment No. 6:

The noble Baroness said: My Lords, in moving Amendment No. 6, I shall also speak to Amendments Nos. 7 to 10 and 15. In accepting the amendment tabled on Report by the noble Lord, Lord Goodlad, which restored to the Bill a clause governing mediation, I undertook to table consequential amendments at Third Reading to ensure that what is now Clause 24 fits properly back in. Amendment No. 6 tidies up the terminology to refer to all tribunal staff appointed under Clause 40(1), so that they can act as mediators wherever they work in the Tribunals Service.

Amendment No. 7 deletes Clause 24(6) to (9) to enable some restructuring of the role of ACAS and the payment of fees to mediators. Subsection (6), which requires consultation with ACAS before a practice direction can be made in relation to mediation, has been removed from Clause 24 because ACAS needs to be consulted only in employment cases.

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