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I am certainly not going to be long now in addressing the House, which was very patient earlier. We are suggesting, if our amendment is passed, that Clause 10 stays in the Bill and we have the option of revoking it at some stage if both Houses agree. An alternative course would be to do as the noble Lord, Lord Elystan-Morgan, says, which is an attractive proposition but I have not had the opportunity to take advice or consult about it.
The bottom line is that if we agree to the Motion of the noble Lord, Lord Kingsland, Clause 10 is out, and then the type of option proposed by the noble Lord, Lord Elystan-Morgan, is a non-starter. That would be very unfortunate. For that reason, I invite noble Lords not to vote for the Motion of the noble Lord, Lord Kingsland, but to vote for ours instead.
Lord Kingsland: My Lords, I am grateful to all noble Lords who have spoken in this relatively crisp debate this afternoon. The noble Lord, Lord Elystan-Morgan, made an alternative suggestion to that advanced in the amendment which has arrived from another place—relating to the commencement clause,
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I do not understand the Minister’s logic that, if your Lordships voted for the Motion this afternoon, it would kill any opportunity for the Government to look at Clause 201. The effect of your Lordships successfully supporting my Motion would be that that clause would go back to another place, which could then reconsider its position and send it back to your Lordships’ House at a later stage. In any case, it is quite plain that just to advance an amendment on the basis of Clause 201(6), giving the Secretary of State an unfettered discretion to decide when to implement Clause 10, would be wholly unsatisfactory to the Opposition and, I suspect, the Liberal Benches as well.
If such a clause were to be anything like a runner, it would need the most careful consideration, including a number of provisions which ensured that—
Lord Elystan-Morgan: My Lords, as I understand it, Clause 201 is already part of the Bill. There is no proposal to amend it in any way at all. The power to delay or use the deep-freeze policy towards any part of the Bill not dealt with in subsections (1) to (5) of Clause 201 is already there.
Lord Kingsland: My Lords, that is so; but I did not understand the noble Lord, Lord Elystan-Morgan, to be suggesting that Clause 201(6) without any amendment could conceivably be an answer to the criticisms that have been made from these Benches and by other noble Lords about the Government’s position. Simply to hand over complete discretion to the Secretary of State to decide when to introduce Clause 10 would be totally—if I may respectfully say so—against the grain of almost all speeches I have heard not only this afternoon in your Lordships' House but throughout the consideration of the Bill.
I set out, on behalf of the Opposition, our position at an earlier stage when I moved the amendment. I do not think I need to add anything further. I wish to test the opinion of the House.
4.26 pm
On Question, Whether the said Motion (No. A1) shall be agreed to?
Their Lordships divided: Contents, 227; Not-Contents, 151.
Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bagri, L.
Baker of Dorking, L.
Barker, B.
Best, L.
Bew, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bragg, L.
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Brooke of Sutton Mandeville, L.
Browne of Belmont, L.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carnegy of Lour, B.
Carrington, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Croham, L.
De Mauley, L.
Dean of Harptree, L.
Dear, L.
Denham, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Emerton, B.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Fellowes, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hameed, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Peckham, L.
Harris of Richmond, B. [Teller]
Hayhoe, L.
Henley, L.
Higgins, L.
Hogg, B.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hylton, L.
Inglewood, L.
James of Blackheath, L.
James of Holland Park, B.
Janvrin, L.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
Kingsland, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laird, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McAlpine of West Green, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar, C.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Marsh, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Morrow, L.
Neill of Bladen, L.
Newby, L.
Northesk, E.
Norton of Louth, L.
Norwich, Bp.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Palumbo, L.
Park of Monmouth, B.
Patten, L.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Quinton, L.
Ramsbotham, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Roberts of Conwy, L.
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Rodgers of Quarry Bank, L.
Rogan, L.
Rotherwick, L.
Russell-Johnston, L.
Ryder of Wensum, L.
Saatchi, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Tanlaw, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.
Windlesham, L.
Wright of Richmond, L.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dearing, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L.
Harries of Pentregarth, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Birmingham, L.
Jordan, L.
Judd, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
McDonagh, B.
Macdonald of Tradeston, L.
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MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Massey of Darwen, B.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Soley, L.
Stevens of Kirkwhelpington, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and Motion agreed to accordingly.
4.40 pm
Motion BThe Commons agree to Lords Amendment 28, and propose the following consequential Amendment to the Bill-
Lord Bach:y Lords, I beg to move that this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28. At Third Reading, the Government accepted Lords Amendments Nos. 24 and 28, which remove the power to amend the period of time certain offenders will spend in custody under the new recall provisions before being automatically re-released and the number of days an offender spends in custody not serving a fixed-term recall before the Secretary of State must refer his case to the Parole Board. The other place has agreed to a consequential amendment to these amendments. On that basis, I invite the House to agree to the Motion.
Moved, That this House do agree with the Commons in their Amendment No. 28A, consequential on Lords Amendment No. 28.—(Lord Bach.)
Lord Kingsland: My Lords, this amendment, which the Government have brought back to your Lordships’ House, is a consequence of an undertaking that they gave at Third Reading in your Lordships' House. The Government have met that in full and we are, correspondingly, extremely grateful.
On Question, Motion agreed to.
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"(1A) A person designated under subsection (1) shall only be permitted to carry out any legal activity as defined by section 12 of the Legal Services Act 2007 if he has been authorised so to do by a body which is designated as an approved regulator by Part 1 of Schedule 4 to that Act or under Part 2 of that Schedule (or both) and whose regulatory arrangements are approved for the purposes of that Act.""
(9) As from that date the following provisions of that Act accordingly do not apply to persons designated under this section-
(10) The Attorney General may by order make such modifications in the application of any enactment (including this section) in relation to persons designated under this section as the Attorney General considers appropriate in consequence of, or in connection with, the matters provided for by subsections (8) and (9).
(11) The Attorney General may also by order amend subsection (2)(a)(ii) so as to omit the words "or offences which are punishable with imprisonment in the case of persons aged 21 or over".
(12) The power to make an order under subsection (10) or (11) is exercisable by statutory instrument, but a statutory instrument containing such an order may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""
The Attorney-General (Baroness Scotland of Asthal): My Lords, I beg to move that this House do not insist on its Amendment No. 86, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 86A in lieu.
As noble Lords will recall, at Report stage the House made a number of amendments to what was originally Clause 105, which relates to the powers of the Crown Prosecution Service designated case workers. The amendments did essentially three things. First, they provided for designated case workers to be subject to statutory regulation under the Legal Services Act. Secondly, they excluded imprisonable summary offences from the trials remit of designated case workers. Lastly, the amendments limited the type of preventive civil orders in respect of which designated case workers could conduct proceedings.
The Government have reflected carefully on the debates in this House and the arguments that were advanced. The government amendments before the House today accept the spirit of the amendments passed on Report, but acknowledge the practical
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On regulation, the amendment provides for a transitional period of three years during which the Crown Prosecution Service would aim to ensure that all its designated case workers become members of ILEX. Once the relevant provisions of the Legal Services Act 2007 come into force, we expect ILEX to seek registration with the Legal Services Board as an approved regulator. It must be stressed that the present regulatory accreditation of ILEX would not allow them to regulate designated case workers. As a result, from 1 May 2011, all designated case workers will operate within the statutory framework provided by the Legal Services Act 2007. Consequently, the amendments provide that from that date their exemption from regulation under the Act would cease to apply.
4.45 pm
The effect of the amendment is that by 1 May 2011 ILEX will need to have had its accreditation extended through what I am told is a lengthy process taking up to three years, which is the basis for the three-year timetable. Designated case workers who are not members of ILEX after 1 May 2011 will not be able to be deployed in a magistrates’ court. It is anticipated that consequential amendments would be required to the Legal Services Act to ensure that designated case workers could properly be catered for within the regulatory framework provided for by the Legal Services Act 2007. Accordingly, we have provided for an order-making power which will enable appropriate modifications to be made to the Legal Services Act and, as necessary, other enactments to this end. I would stress that this power could not be used to alter the 1 May 2011 date.
I turn now to the designated case workers’ trial remit. This House took the view that the exclusion of imprisonable summary offences from trials remit should be set out in primary legislation rather than statutory instructions issued by the Director of Public Prosecutions, and the amendments before us today do just that. However, we believe that it would be sensible to build some flexibility into the legislation, and accordingly the amendments in lieu accept that the restriction on designated case workers conducting trials in respect of imprisonable summary offences should appear on the face of the Bill. The amendments acknowledge, however, that there will come a time when, having gained further experience, it would be right to lift this restriction. As a consequence, the amendment in lieu provides for the restriction to be lifted by means of secondary legislation. Any order removing the restriction on conducting trials with respect to summary offences punishable by imprisonment would be subject to the affirmative resolution procedure and would therefore have to be debated and approved by both Houses. However, I can assure noble Lords that no such order will be brought forward before 1 May 2011; that is, it will not be brought before either House until all designated case workers are operating within the statutory regulatory framework of the 2007 Act.
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Of course I note that the noble Lord, Lord Kingsland, has tabled an amendment to remove this particular order-making power. It was anticipated that my honourable friend the Solicitor-General would have been able to give to Members of the other place the assurances that I have given here, but, regrettably, for various reasons, that was not possible. As I indicated, we have taken very seriously the concerns expressed in this House and by the Bar Council in particular. I have had an opportunity to speak to Tim Dutton, chairman of the Bar, and on the basis of the assurances that I have given to this House, I have his agreement, or approval, that these amendments can have the Bar’s support. I understand entirely that it is important for this House to hear those assurances. Having made them, I hope I have given some satisfaction not only to the noble Lord, Lord Kingsland, but to the noble Lord, Lord Thomas of Gresford, who has raised similar concerns in this area.
I believe that this is an equitable compromise which embodies the core features of the amendments passed by this House at Report. On that basis, I invite noble Lords to agree to the government Motions.
Moved, That this House do not insist on its Amendment No. 86, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 86A in lieu.—(Baroness Scotland of Asthal.)
Lord Kingsland rose to move Motion C1, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A.
The noble Lord said: My Lords, as the noble Baroness has indicated, there are two issues involved in Motion C. The first one concerns the class of case in which unqualified employees of the CPS can engage in magistrates’ courts proceedings, and the second concerns the legal framework within which they operate when they are litigating in magistrates’ courts.
On the first issue, our view has consistently been that it would be inappropriate for what, in the jargon, are termed DCWs to be engaged in contested cases in magistrates’ courts which are capable of terminating in sentences of imprisonment. We wanted that guarantee to be on the face of the Bill so that, if there was any subsequent change, it could be effected only by primary legislation. As the noble and learned Baroness has again informed your Lordships today, the Government felt that our position was too inflexible.
The second issue was what legal disciplinary framework should be appropriate for DCWs. In that regard, we are satisfied with the solution that the Government are proposing today. I entirely understand the difficulties that the CPS would have in producing a cadre of DCWs who would immediately be capable of falling within the framework of the existing Legal Services Act. The noble and learned Baroness is proposing that there should be a delay of three years before the appropriate framework is put into effect, and May 2011 is the suggested date. For our part, we are content with that. Our understanding is that any DCW appearing
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