The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.

Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.

As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates’ court or a county court and, if so, which category of county court.

The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the

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creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.

5.45 pm

Amendment 68A seeks to lift the restrictions on the number of days magistrates will be able to sit in the new family court. I note the points made by the noble Lords, Lord Beecham and Lord Ponsonby, and the noble and learned Baroness, Lady Butler-Sloss. First, perhaps I may give the noble Lord, Lord Ponsonby, the reassurance he seeks. I support the magistrates in the family proceedings court and elsewhere. I can assure your Lordships that there is no intention of using the creation of the single family court as a way of diminishing the role of magistrates in family proceedings. The purpose of these provisions is to create a more efficient and flexible system that is better able to respond to fluctuations in demand. The Government recognise the crucial and invaluable role that magistrates have to play in the family justice system and have no wish to undermine this.

Among the proposals by the Family Justice Review, judges and magistrates should be able to and encouraged to specialise in family matters. As part of this, the review recommended that the Judicial Office should revisit the restriction on magistrate sitting days. The Government accepted this recommendation and in our response to the review stated that,

“those willing to sit extra days to accommodate family cases should not be discouraged from doing so due to an arbitrary threshold”.

In considering this, I will take back the points made by the noble Lord, Lord Ponsonby. The Government will work with the Judicial Office to look at the feasibility of making such changes. I am happy to keep the noble Lords informed of progress in this area. With that assurance, I hope that the noble Lord will feel happy to withdraw that amendment.

Amendment 68B would require the Secretary of State to conduct a review of the single county court and single family court, and to publish a report to Parliament within 18 months of commencement of these provisions. As the noble Lord, Lord Beecham, will be aware, the previous Administration introduced a system of post-legislative reviews of all government legislation. This is a valuable process and one that this Government have been happy to continue. Such reviews are conducted some three to five years after Royal Assent. Given this standing arrangement, I am not persuaded that we need to write a review mechanism into the Bill.

I can assure noble Lords that, in line with the standing arrangements for post-legislative scrutiny, we will be conducting a review of the new single county court and family court. Indeed, we included a commitment to this effect in the impact assessments which we have published alongside the Bill. These provide for a review to be carried out within five years. This timeframe will allow the new county and family courts to bed down and so enable the full benefits to be fully and properly evaluated. I put it to noble Lords that a review that starts just 12 months after commencement will be too soon to enable a proper evaluation to take place and to draw meaningful comparisons with the old

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arrangements. The longer timeframe we have in mind will enable appropriate statistical evidence to be compiled and the views of court users and others to be obtained based on a realistic period of operation under the new arrangements.

I am similarly not persuaded of the case for Amendment 68C. Under Section 1 of the Courts Act 2003, the Lord Chancellor is already under a general statutory duty to ensure that there is an efficient and effective system to support the carrying on of business in the courts and to report annually to Parliament on the discharge of this duty. Moreover, both Her Majesty’s Courts and Tribunals Service and the Office of the Public Guardian publish annual reports. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, imposing a requirement for an annual review would be excessive and unnecessary. I would be interested to know whether the noble Lord has put a cost on such annual reviews.

I was very pleased the noble Lord, Lord Beecham, said that he would not press his opposition to Clause 17 standing part of the Bill, and that there is general support around the House for these reforms. Now is the time to let them go forward and bed in. I take the point made about the magistracy, which I strongly endorse. In those circumstances, I hope that the noble Lord will be able to withdraw his amendment.

Lord Beecham: I am grateful to the Minister for his reply. In particular I welcome his response to limits on the time magistrates might sit in the family court. I also take the point made by the noble and learned Baroness, Lady Butler-Sloss, that an annual review, as called for in the amendment, is perhaps too frequent. However, I do not agree that it is simply good enough to rely on the present system with the Lord Chancellor reporting and then the other courts reporting separately. We need a comprehensive periodic review—I accept that annually may be too frequent—to look at how the whole system is working particularly in the light of other legislative changes, notably the Legal Aid Act, which is clearly going to impinge very substantially on the way the courts work. I do not think a review after five years, or even three, is adequate to assess how things are going, given the scale of the changes and the potential implications for parties and indeed the system itself. However, a periodic review perhaps less frequently than one year but more frequently than currently occurs across the whole system is required so that we can look at the effect of change—these statutory changes and others outside the province of the legislature—on society itself and whether it is adequately dealt with by the different parts of what is, after all, supposed to be effectively a single system which ought not to be too difficult for people to navigate.

In the circumstances, I will not press these amendments today but I am likely to return at least to the question of a comprehensive review, albeit perhaps on a different time basis, when we come to Report. At this stage, I beg leave to withdraw.

Amendment 68A withdrawn.

Clause 17 agreed.

Amendments 68B and 68C not moved.

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Amendment 68D

Moved by Lord Beecham

68D: After Clause 17, insert the following new Clause—

“Provision of information service for court users

An adequate information service must be provided for court users at each county court, which may be provided in partnership with a voluntary organisation.”

Lord Beecham: My Lords, this is a relatively simple amendment. It arises from discussions with citizens advice bureaux nationally which have pointed out that the practice of there being reception staff at county courts has lapsed in many places. I understand that in many courts there is staffing available for only two hours a day. In some courts there is no staffing at all now. Given the changes in the legal aid and advice system increasingly people are going to be finding their own way, unsupported, to the courts and will find little or no help or advice available. The purpose of this amendment is simply to endeavour to require that there should be an information service accessible to people at the courts, not necessarily provided by the courts. Citizens advice bureaux and possibly other agencies might well be interested in undertaking this responsibility It is surely important, particularly for those who find the whole process of litigation difficult, as many do, to have accessible advice at the point where it is most needed—that is, at the court door, as it were. I hope that the Government will look at ways in which this might be achieved, particularly involving the voluntary sector. It would ultimately assist the efficiency of the courts because otherwise, I suspect, we are going to get increasing problems, as I have already indicated, from the number of litigants in person. At least if litigants in person can receive some advice at the outset, it might ultimately repay itself in financial and other terms quite profoundly with a reduced impact on more expensive court time, which is better deployed in determining cases. I beg to move.

Lord Woolf: My Lords, I hope that what the noble Lord, Lord Beecham, is proposing here is given most careful consideration. In order to obtain what we all want—access to justice for the citizen—information is critical. In Access to Justice, for which I was responsible many years ago, I hoped that we would one day reach the situation where the courts’ role changed from what it had been in the past. In the past, its purpose was to respond to the litigant’s activities and not to be proactive. I urged that the courts should become proactive and the citizen who come to the court shall receive not only the judgment, which sometimes they would be looking for, but also guidance as to the most economic and efficient way of resolving their dispute. Information provided as envisaged by the noble Lord, Lord Beecham, could play a critical role in this respect. Commendably, following Access to Justice, some courts provided very good services of this nature. It is very easy, when one is forced to make the economies that the Lord Chancellor is forced to make, perhaps not immediately recognise that although the service is a modest one it pays for itself over and again. It is important to the possible litigant seeking from the court general guidance on the resolution of their dispute. I hope what the noble Lord, Lord Beecham, has proposed will be taken away and considered very carefully and sympathetically.

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Lord McNally: My Lords, the proposal of the noble Lord, Lord Beecham, is very much in line with what we are trying to do but I cannot believe that it is necessary to have a statutory duty. We went through some of this in the LASPO Bill. I think that sometimes noble Lords do not accept just how much these days people get their information via the telephone and the internet, and from well-prepared, well-produced literature. There is a role for the voluntary sector and certainly we will be willing to explore with it the role it can play. However, surveys we have carried out show that only a small minority of attendees at court counters were there to seek information. Overwhelmingly, people get their information through well-produced literature, the telephone and the internet. Part of the thrust of the reforms we are carrying through at the MoJ is to make sure that our online services are as full as possible with information and guidance to steer people through the processes.

Yes, it is quite true that places such as the CABs can play an important part in being the first point of contact to help people to go online and make the right phone call. Certainly, as I said, we would be willing to talk to third sector advice agencies. Indeed, the MoJ and the court services already provide some grants to those organisations for that purpose. I recognise the importance of ensuring that information is widely available without requiring citizens to travel to their local hearing centre to find it. Her Majesty’s Courts and Tribunals Service already provides a wide variety of information to users and does so through a number of different channels, including websites, telephone and at court counters. In doing so, we already routinely work with third sector organisations. To keep pace with how citizens access information, and in keeping with other public services, we believe it is more appropriate to focus resources on providing information through online and telephone services so we can better serve the population as a whole to gain access to information from anywhere at any time. Equally, when people attend court, they will continue to have the information that they need to use our services effectively. With the assurance that county court users will continue, as now, to be provided with appropriate information, I hope that the noble Lord will be willing to withdraw his amendment.

6 pm

Lord Beecham: It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today’s debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.

I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report—after all, with the Summer

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Recess, it will be some months before we do that—he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.

Lord McNally: The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report—perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.

Lord Beecham: I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.

Amendment 68D withdrawn.

Schedule 9 : Single county court in England and Wales

Amendment 69

Moved by Lord McNally

69: Schedule 9, page 99, line 10, leave out “chairmen of employment tribunals” and insert “Employment Judges”

Lord McNally: My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.

The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to “a county court”, which now need throughout the legislation to be amended to “the county court.”

However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require

25 Jun 2012 : Column 54

further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.

Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.

As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the “magistrates’ court” for the “family court”.

I should draw to the Committee’s attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.

There is also one final set of amendments in this group to which I should draw the Committee’s attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a

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technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.

Lord Beecham: My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.

Amendment 69 agreed.

Amendments 70 to 77

Moved by Lord McNally

70: Schedule 9, page 99, line 11, after “Wales” insert “or for Scotland”

71: Schedule 9, page 100, line 1, leave out from “(1)” to end of line 3 and insert “(officer of a county court and officer’s firm not to be engaged as representative in any proceedings in that court, subject to exception in subsection (4) for deputy district judges)—

(a) for the words from the beginning to “be” substitute—

“A fee-paid part-time judge of the county court may not act as a judge of the court in relation to any proceedings in the court in which—

(a) the judge,

(b) a partner or employer of the judge,

(c) a body of which the judge is a member or officer, or

(d) a body of whose governing body the judge is a member,

is”, and

(b) omit “in any proceedings in that court”.”

72: Schedule 9, page 100, line 5, leave out sub-paragraph (4) and insert—

“(4) Omit subsection (4) (provision about deputy district judges which is incorporated in the amended subsection (1)).”

73: Schedule 9, page 106, line 4, at end insert—

“( ) In section 125(1) (execution of warrants) for “a court” substitute “the court”.”

74: Schedule 9, page 110, line 1, at end insert “, and

(b) for “county court rules” substitute “rules of court”.”

75: Schedule 9, page 114, line 17, at end insert—

“Part 2AFurther amendmentsAmendment of references to “a county court”

51A (1) In the provisions listed in sub-paragraph (2) (but subject to any specific amendments made by or under this Act)—

(a) for “A county court”, in each place, substitute “The county court”, and

(b) for “a county court”, in each place, substitute “the county court”.

(2) The provisions are—

Access to Health Records Act 1990: section 8(5),

Access to Justice Act 1999: sections 17, 17A, 21 and 54 to 57,

Access to Medical Records Act 1988: section 8(2),

Access to Neighbouring Land Act 1992: section 8(3),

Administration of Justice (Miscellaneous Provisions) Act 1933: section 7(2),

Administration of Justice Act 1960: sections 12 and 13,

Administration of Justice Act 1970: section 11(b) in the words before sub-paragraph (i), and section 41(3),

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Administration of Justice Act 1977: section 23(4)(a),

Administration of Justice Act 1982: section 38,

Administration of Justice Act 1985: section 53(2)(c),

Anti-social Behaviour Act 2003: sections 13 and 26A to 28,

Charging Orders Act 1979: sections 1(1), (2)(c) and (d) and (6), 3(4A)(a) and 6(2),

Charities Act 1992: section 58(1),

Civil Jurisdiction and Judgments Act 1982: section 18(4A)(a),

Commonhold and Leasehold Reform Act 2002: sections 66(1) and 107(1),

Commons Act 2006: sections 34(5) and 46(7)(a),

Companies Act 2006: section 1183,

Communications Act 2003: section 124Q(7)(a),

Compensation Act 2006: section 8(2),

Contempt of Court Act 1981: section 14 (but not in its application to Northern Ireland as set out in Schedule 4 to that Act),

Crime and Disorder Act 1998: sections 1B(1) and 10,

Criminal Justice Act 2003: section 329(8)(c),

Data Protection Act 1998: section 55D(2)(a),

Education Act 1996: section 336(2)(g),

Education and Skills Act 2008: sections 56(5), 57(2), 58(4)(b), 59(4) and 65(3),

Electricity Act 1989: sections 39B(4)(a) and 44A(6)(b)(i),

Employment Rights Act 1996: sections 110(6)(a), 194(4) and 195(4),

Employment Tribunals Act 1996: sections 7(3)(e)(i), 13(1C), 15(1) and 19A,

Environmental Protection Act 1990: section 78P(8),

Equality Act 2006: sections 21(7)(b), 22(6), 24 and 32(9)(b), and paragraphs 11 and 12(2) of Schedule 2,

Equality Act 2010: sections 114(1), 119(1), 120(6), 124(6), 127(9), 138(8), 140(6) and 143(1), paragraph 12(5) of Schedule 20 and paragraphs 4(2) and 5(7) of Schedule 21,

Finance Act 2003: paragraph 5(1)(a) of Schedule 12, and the first “a county court” in paragraph 5(3)(a) of that Schedule,

Financial Services and Markets Act 2000: paragraphs 16(a) and 16D(a) of Schedule 17,

Gas Act 1986: sections 15A(6)(b), 27A(9)(b) and 33AB(4)(a),

Health and Social Care (Community Health and Standards) Act 2003: section 155(7),

Highways Act 1980: sections 79(8) and (13) and 308,

Horserace Betting and Olympic Lottery Act 2004: section 9(6),

Housing Act 1980: section 86(1),

Housing Act 1985: sections 82A(2), 110(1), 181(1) and 272(5), and paragraph 6(5) of Schedule 18,

Housing Act 1988: sections 6A(2) and 40(1) and (3), and section 40(4) until its repeal by the Courts and Legal Services Act 1990 is fully in force,

Housing Act 1996: sections 95, 138(1), 153E(6), 154(1), 155(6), 157(1) and 203(5),

Housing Act 2004: sections 214(1) and 215(2A), and paragraphs 5(3)(a) and 13 of Schedule 13,

Immigration and Asylum Act 1999: section 43(2)(a),

Immigration, Asylum and Nationality Act 2006: section 17(6)(a),

Industrial and Provident Societies Act 1965: section 60(8)(a),

Insolvency Act 1986: sections 196(a), 373(2), 375 and 429(1),

Land Registration Act 2002: sections 75(4), 76(5) and 132(3)(a),

Landlord and Tenant (Covenants) Act 1995: sections 8(4) and 10(4),

Landlord and Tenant (War Damage) Act 1939: section 23(1),

Landlord and Tenant Act 1954: section 63(2) and (9),

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Landlord and Tenant Act 1985: section 20C(2), and paragraph 8(2) of the Schedule,

Landlord and Tenant Act 1987: sections 52(1) and (3) and 60(1), and paragraphs 4(3) and 9(3) of Schedule 1, and section 52(4) until its repeal by the Courts and Legal Services Act 1990 is fully in force,

Learning and Skills Act 2000: section 145(5),

Leasehold Reform, Housing and Urban Development Act 1993: sections 90, 93(3) and 101(1), paragraph 4(3) of Schedule 8 and paragraph 4 of Schedule 14,

Legal Aid, Sentencing and Punishment of Offenders Act 2012: sections 24(3)(b) and 36(5), paragraph 5 of Part 3 of Schedule 1 and paragraph 2(3) of Schedule 2,

Legal Services Act 2007: section 141(7),

Local Government Act 1972: section 146(3),

Local Government Act 2000: section 77(6)(e),

Local Government Finance Act 1992: paragraph 11(4) of Schedule 4,

Local Land Charges Act 1975: section 10(8),

Localism Act 2011: section 159(5),

London Building Acts (Amendment) Act 1939 (c. xcvii): sections 103 and 143, and entry (xxxiv) in the table in section 148(2),

London County Council (General Powers) Act 1955 (c. xxix): section 7(4),

Magistrates’ Courts Act 1980: sections 87(1) and 111A(3)(a),

Mental Health Act 1983: section 31,

Mines and Quarries (Tips) Act 1969: section 28,

National Health Service Act 2006: sections 90(5), 94(3)(h), 105(5), 109(3)(h), 122(5) and 139(8), and paragraph 3(3)(j) of Schedule 12,

National Health Service (Wales) Act 2006: sections 48(5), 52(3)(h), 62(5), 66(3)(h) and 97(8), and paragraph 3(3)(j) of Schedule 7,

National Minimum Wage Act 1998: sections 19E(a), 38(2) and 39(2),

Patents Act 1977: sections 41(9), 61(7)(a), 93(a) and 107(2),

Pension Schemes Act 1993: sections 53(1B)(a), 115(6)(a), 150(8)(a) and 151(5)(a),

Pensions Act 1995: section 10(8A)(a),

Pensions Act 2004: sections 103(9)(a), 217(2)(a) and 218(5)(a),

Pensions Act 2008: section 42(2),

Planning Act 2008: section 171(4), and paragraph 24 of Schedule 12,

Policing and Crime Act 2009: section 49(1), and paragraph 1(9) of Schedule 5A,

Protection from Harassment Act 1997: section 3A(2),

Rent (Agriculture) Act 1976: section 26,

Rent Act 1977: sections 96(3), 132(6) and 141,

Representation of the People Act 1983: sections 78(4), 86(1)(c) and 167(1), and rule 56(1), (4) and (5)(a) of Schedule 1, with a view to the inserted references to the county court including (as in other places in that Act) a county court in Northern Ireland,

Representation of the People Act 1983: section 167(3), and paragraph 9 of Schedule 4,

Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951: section 2(1),

Senior Courts Act 1981: section 29(4),

Social Security (Recovery of Benefits) Act 1997: section 7(4),

Social Security Act 1989: paragraph 9 of Schedule 5,

Social Security Administration Act 1992: sections 71ZE(1) and 126(3)(a),

Social Security Contributions and Benefits Act 1992: section 12(7),

Solicitors Act 1974: sections 61(6), 68(2), 69(3) and 74(3),

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Trade Union and Labour Relations (Consolidation) Act 1992: section 277(3), and paragraphs 19E(5), 28(6) and 120(6) of Schedule A1,

Tribunals, Courts and Enforcement Act 2007: sections 27(1)(a) and 78(3), section 92(1) (in the inserted section 15D(3)), section 93(2) (in the inserted section 1(6)), section 93(3) (in the inserted section 3(4A)(a)), sections 93(6), 95(1), 104(2), 115 to 118, 119(1)(b), 122(2) and 123(1), paragraph 12(2)(b) of Schedule 5, paragraphs 3(1), 60(8) and 66(4) of Schedule 12, paragraphs 77 and 79(2)(a) of Schedule 13 (in the quoted or inserted text), paragraphs 2(2), 5, 7, 10, 18 and 21 of Schedule 15 (in the inserted text) and paragraph 3(2) of Schedule 16 (in the inserted section 429(1)),

Trusts of Land and Appointment of Trustees Act 1996: section 23(3),

Violent Crime Reduction Act 2006: section 4(1),

Water Industry Act 1991: sections 30A(5), 51B(5) and 150A(6), and

Welfare Reform Act 2012: section 105(1) (in the inserted section 71ZE(1)).

Amendments of other references

51B In section 7(1) of the Access to Neighbouring Land Act 1992 for “the county courts” substitute “the county court”.

51C In section 40 of the Administration of Justice Act 1956 for “a county court”, and for “that county court”, substitute “the county court”.

51D In section 26 of the Administration of Justice 1964 (Inner and Middle Temples in City of London for certain purposes including the law relating to county courts) omit “county courts,”.

51E In section 96(1) of the Agricultural Holdings Act 1986 omit the definition of “county court”.

51F In section 18(5) of the Agricultural Marketing Act 1958 omit the words from “within the district” to “may be brought”.

51G In section 5 of the Agriculture (Miscellaneous Provisions) Act 1954—

(a) in subsections (2) and (3) for “county court rules” substitute “rules of court”, and

(b) omit subsection (4) (powers of district judge).

51H In section 6 of the Allotments Act 1922 for “the judge of the county court having jurisdiction in the place where the land is situated”, and for “a county court”, substitute “the county court”.

51I (1) In section 82(1) of the Arbitration Act 1996, in the definition of “legal proceedings”, after “civil proceedings” insert “in England and Wales in the High Court or the county court or in Northern Ireland”.

(2) In section 105 of that Act—

(a) in subsection (1) after ““the court”” insert “in relation to England and Wales means the High Court or the county court and in relation to Northern Ireland”,

(b) in subsection (2) before paragraph (a) insert—

“(za) allocating proceedings under this Act in England and Wales to the High Court or the county court;”,

(c) in subsection (2)(a) after “this Act” insert “in Northern Ireland”,

(d) in subsection (2)(b) after “or in” insert “the county court or (as the case may be)”,

(e) in the first sentence in subsection (3) after “a county court” insert “in Northern Ireland”, and

(f) in the second sentence in subsection (3) omit “England and Wales or, as the case may be,”.

51J In section 22(6) of the Architects Act 1997 (appeals) after “appeal” insert “in England and Wales to the county court or, in Northern Ireland,”.

51K In section 17(6) of the Audit Commission Act 1998 for “the county courts” substitute “the county court”.

51L In section 5(1) of the Caravan Sites Act 1968 (meaning of “the court”) omit the words from “and any powers” to the end.

51M In the Chancel Repairs Act 1932—

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(a) in section 3(1)—

(i) omit “for the district in which the chancel is situate”, and

(ii) for “a county court” substitute “the county court”,

(b) in section 3(3)—

(i) for “a judge of county courts” substitute “the county court”, and

(ii) for “the judge” substitute “the court”, and

(c) in section 4(1) for “county court rules” substitute “rules of court”.

51N In sections 10(7), 29(4) and 29A(1) of the Chiropractors Act 1994—

(a) after “appeal” insert “in England and Wales to the county court or in Northern Ireland”, and

(b) before “the sheriff” insert “to”.

51O In section 18(2)(b) of the Civil Jurisdiction and Judgments Act 1982 for “or”, in the second place, substitute “in the High Court or the county court or in”.

51P In the Civil Procedure Act 1997—

(a) in sections 1(1)(c) and 2(2)(e) and (f) for “county courts” substitute “the county court”, and

(b) in Schedule 1 (civil procedure rules)—

(i) in paragraph 3(1)(b) for “between county courts” substitute “within the county court”, and

(ii) in paragraph 3(2)(a)(ii) for “by another county court” substitute “elsewhere within the county court”.

51Q In section 25(5)(c) of the Commissioners for Revenue and Customs Act 2005, in the definition of “legal proceedings”, after “civil proceedings” insert “in England and Wales in the county court or in Northern Ireland”.

51R In paragraph 11 of Schedule 11 to the Commonhold and Leasehold Reform Act 2002 for “a county court”, and for “such a court”, substitute “the county court”.

51S In section 41(1) of the Commons Act 2006 omit “in whose area the land is situated”.

51T In section 2(7) of the Contracts (Rights of Third Parties) Act 1999 after “exercisable” insert “in England and Wales by both the High Court and the county court and in Northern Ireland”.

51U In sections 115(1), 205(1) and 232(1) of the Copyright, Designs and Patents Act 1988 for “,Wales and” substitute “and Wales the county court and in”.

51V In section 8(4) of the Coroners and Justice Act 2009 for “county courts” substitute “county court”.

51W In section 30 of the Courts Act 1971 for “county courts” substitute “the county court”.

51X In section 1B(5) of the Crime and Disorder Act 1998 for “which made an order under this section for it” substitute “for an order made under this section”.

51Y In section 10(1) of the Criminal Law Act 1977 for “by any” substitute “the”.

51Z In section 15(1) of the Data Protection Act 1998 after “exercisable” insert “in England and Wales by the High Court or the county court or, in Northern Ireland,”.

51AA In section 5 of the Debtors Act 1869—

(a) in paragraph (a) of proviso (1) for “or his deputy” substitute “of the court”,

(b) for “any county court” substitute “the county court”, and

(c) for “other than a” substitute “other than the”.

51AB In the Deeds of Arrangement Act 1914—

(a) in section 10(1) for the words after “copy of the deed to the” substitute “county court.”,

(b) in section 10(2) omit “the registrar of”, and

(c) in section 16 for “a county court” substitute “the county court”.

25 Jun 2012 : Column 60

51AC In section 8 of the Disused Burial Grounds (Amendment) Act 1981—

(a) omit “in whose district the land is situated who”, and

(b) omit the words after “costs of the application”.

51AD In the Enterprise Act 2002—

(a) in section 16(6) after “High Court” insert “or the county court”,

(b) in section 215(5)(a) omit “England and Wales or”,

(c) in section 215(5) before paragraph (a) insert—

“(za) the High Court or the county court if the person against whom the order is sought carries on business or has a place of business in England and Wales;”, and

(d) in paragraph 25(a) of Schedule 4 for “a county court in England and Wales or” substitute “the county court in England and Wales or the High Court or a county court in”.

51AE In the Estate Agents Act 1979—

(a) in the definition of “court” in section 11A(4) omit “England and Wales and” and before paragraph (a) insert—

“(za) in England and Wales, the High Court or the county court;”, and

(b) in paragraph 6(1) of Schedule 4 after “appeal” insert “in England and Wales to the county court or, in Northern Ireland,”.

51AF In section 133(8)(a) of the Financial Services and Markets Act 2000 before “as if” insert “in England and Wales, as if it were an order of the county court or, in Northern Ireland,”.

51AG (1) In section 22 of the Friendly Societies Act 1974 after subsection (2) insert—

“(2A) In the application of subsection (2) to England and Wales, for the words “for the district in which the member resides” there shall be substituted “if the member resides in England and Wales”.

(2) In section 80(2)(b) of that Act after “brought” insert “in England and Wales in the county court or, in Northern Ireland,”.

(3) In section 93(3) of that Act—

(a) for the words from “make an application—” to the end of paragraph (a) substitute “make an application to the county court in England and Wales if the chief or any other place of business of that society or branch is situated in England and Wales or may make an application—”, and

(b) for “such application” substitute “application under this subsection”.

51AH (1) In section 82(4) of the Friendly Societies Act 1992 after “brought” insert “in England and Wales in the county court or, in Northern Ireland,”.

(2) In section 119(1) of that Act in the definition of “the court” for “Wales or” substitute “Wales, the county court;

(aa) in the case of a body whose registered office is situated in”.

51AI (1) In section 48 of the Government Annuities Act 1929 after subsection (2) insert—

“(2A) For the purposes of this section, England and Wales is to be treated as the district of the county court in England and Wales.”

(2) In section 61(1) of that Act after “a county court” insert “in Northern Ireland or the county court in England and Wales”.

51AJ Omit section 59(4) of the Highways Act 1980 and, in consequence, omit paragraph 8(2) of Schedule 3 to the Administration of Justice Act 1982.

51AK In paragraph 6(2) of Schedule 18 to the Housing Act 1985 for “a county court judge”, and for “the county court judge”, substitute “a judge of the county court”.

25 Jun 2012 : Column 61

51AL In paragraph 13 of Schedule 13 to the Housing Act 2004 for “such a” substitute “that”.

51AM In the Immigration and Asylum Act 1999—

(a) in section 25(5)(a) after “granted” insert “in England and Wales by the county court or in Northern Ireland”,

(b) in section 43(3)(a) after “a county court” insert “in Northern Ireland, or the county court in England and Wales,”, and

(c) in sections 89(7), 92(1) and 112(4) after “a county court” insert “in Northern Ireland or the county court in England and Wales”.

51AN In section 42(3)(b) of the Industrial and Provident Societies Act 1965 for “that county court or” substitute “the county court or that”.

51AO In section 25(1) of the Inheritance (Provision for Family and Dependants) Act 1975 in the definition of “the court”—

(a) for “a county” in both places substitute “the county”, and

(b) for “22 of this Act” substitute “25 of the County Courts Act 1984”.

51AP In the Insolvency Act 1986—

(a) in section 117(2) (county court winding-up jurisdiction)—

(i) for “the amount of a company’s” substitute “in the case of a company registered in England and Wales the amount of its”, and

(ii) omit “of the district in which the company’s registered office is situated”,

(b) omit section 117(4) and (6),

(c) in section 197(1)(a) for “a specified” substitute “the”,

(d) in section 373(1) for “county courts” substitute “county court”,

(e) in section 373(3)(a) for “Central London County Court” substitute “county court”,

(f) in section 373(3)(b) (jurisdiction in relation to insolvent individuals)—

(i) for “each” substitute “the”, and

(ii) for “the insolvency district of that court” substitute “any other insolvency district”,

(g) in section 374(1) for the words from “of each” to the end substitute “, or districts, of the county court.”,

(h) in section 399(3) for the words from “a county court” to the end substitute “the county court.”,

(i) in section 399(5)—

(i) for the words from “each” to “Parts” substitute “the county court”, and

(ii) for “two or more different” substitute “both”,

(j) in section 399(6) for “another” substitute “the other”,

(k) for section 413(3)(d) substitute—

“(d) a district judge;”, and

(l) in paragraph 2 of Schedule 9—

(i) omit “or a registrar of a county court having jurisdiction for the purposes of those Parts”, and

(ii) omit “or, as the case may be, that county court”.

51AQ In Schedule 1 to the Interpretation Act 1978, in paragraph (a) of the definition of “County court”, for “a court held for a district under” substitute “the county court established under section A1 of”.

51AR In section 26(7)(g) of the Judicial Retirement and Pensions Act 1993 omit “in the county courts”.

51AS In the Juries Act 1974—

(a) in sections 1(1), 2(1) and 12(6) for “county courts” substitute “the county court”, and

(b) in section 7 for “any county”, and in sections 17(2) and 23(2) for “a county”, substitute “the county”.

25 Jun 2012 : Column 62

51AT In section 1(6A) of the Land Charges Act 1972 for “county courts” substitute “county court”.

51AU In section 10 of the Landlord and Tenant (Requisitioned Land) Act 1942, and in section 2(2) of the Landlord and Tenant (Requisitioned Land) Act 1944, after “exercised” insert “in England and Wales by the county court and in Northern Ireland”.

51AV In paragraph 4 of Schedule 2 to the Leasehold Reform Act 1967—

(a) omit “making the order or another county court”, and

(b) for “county courts” substitute “the county court”.

51AW In paragraph 4 of Schedule 14 to the Leasehold Reform, Housing and Urban Development Act 1993 omit “or another county court”.

51AX In section 194(10) of the Legal Services Act 2007 in the definition of “civil court” as originally enacted and as substituted by section 61 of the Legal Aid, Sentencing and Punishment of Offenders Act 2007 for “any county” substitute “the county”.

51AY In section 35(3) of the Limitation Act 1980 for “any county” substitute “the county”.

51AZ In paragraph (a) of the second sentence in section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 before “in a county court” insert “in England and Wales in the county court or in Northern Ireland”.

51BA In sections 62(1) and 87(2) of the Local Government Act 1948 omit “for the county court district in which the property in question is situated”.

51BB In the London Building Acts (Amendment) Act 1939 (c. xcvii)—

(a) in section 103(2) for “such court”, in both places, substitute “that court”, and

(b) in section 107(1) omit “of the district in which the premises are situate”.

51BC In Schedule 1 to the London Local Authorities Act 1996 (c. ix)—

(a) in paragraph 9(1) for “if a county” substitute “if the county”,

(b) in paragraph 10(1)(a) for “a county” substitute “the county”, and

(c) in paragraph 10(1)(c) omit “which made the order”.

51BD In section 64(2)(b) of the London Local Authorities Act 2007 (c. ii) for “if a county” substitute “if the county”.

51BE In paragraph 7 of Schedule 1 to the London Local Authorities and Transport for London Act 2003 (c. iii) until its repeal by the Traffic Management Act 2004 is fully in force—

(a) in sub-paragraph (1)(c) omit “which made the order”,

(b) in sub-paragraph (5) for “a district judge” substitute “the county court”,

(c) in sub-paragraphs (6), (7) and (8)(d) for “district judge” substitute “county court”, and

(d) in sub-paragraph (7) for “he” substitute “the court”.

51BF In section 25 of the London Overground Wires &c. Act 1933 (c. xliv) for “any county court having otherwise jurisdiction in the matter” substitute “the county court”.

51BG In paragraph 8(3) of Schedule 3B to the Medical Act 1983 after “made” insert “in England and Wales to the county court or, in Northern Ireland,”.

51BH In paragraph 28 of Schedule 3 to the Medicines Act 1968 after sub-paragraph (2) insert—

“(2A) For the purposes of this paragraph, England and Wales is to be treated as the district of the county court in England and Wales.”

51BI In section 31 of the Mental Health Act 1983 for “County court rules” substitute “rules of court”.

51BJ In section 5(1) of the Mobile Homes Act 1983, in paragraph (a) of the definition of “the court”, omit “for the district in which the protected site is situated”.

25 Jun 2012 : Column 63

51BK In section 73 of the Offices, Shops and Railway Premises Act 1963—

(a) in subsections (1) and (2) for “county court within whose jurisdiction the premises are situate” substitute “court”, and

(b) for subsection (3) substitute—

“(3) In subsections (1) and (2) “the court”, in relation to any premises, means—

(a) the county court if the premises are in England and Wales, or

(b) if the premises are in Scotland, the sheriff within whose jurisdiction the premises are situate.”

51BL In section 4(2) of the Open Spaces Act 1906 after “shall” insert “in England and Wales be either the High Court or the county court and, in Northern Ireland, shall”.

51BM In sections 10(7), 29(4) and 29A(1) of the Osteopaths Act 1993—

(a) after “may appeal” insert “in England and Wales to the county court or in Northern Ireland”, and

(b) before “the sheriff” insert “to”.

51BN In paragraphs 4(4) and 12(4) of Schedule 4 to the Parliamentary Standards Act 2009 for “a county court” substitute “the county court in England and Wales or a county court in Northern Ireland”.

51BO In section 23(2) of the Partnership Act 1890 for “or a county court,” substitute “or the county court in England and Wales or a county court in Northern Ireland,”.

51BP In section 152 of the Pension Schemes Act 1993—

(a) in subsection (1)(a) for “county courts” substitute “the county court”, and

(b) in subsection (2) for “the county court rules” substitute “rules of court”.

51BQ In paragraph 11(2) of Schedule 3 to the Plant Varieties Act 1997 for “the county court rules” substitute “rules of court”.

51BR In the Political Parties, Elections and Referendums Act 2000—

(a) in section 48(12)(a) for “or” substitute “means the county court and, in”,

(b) in sections 77(4), 92(4) and 115(4) after “may apply” insert “in England and Wales to the High Court or the county court or, in Northern Ireland,”,

(c) in sections 77(12) and 92(8) for the words after “In” substitute “its application to Gibraltar, subsection (4) has effect as if for the words between “apply” and “leave” there were substituted “to the Gibraltar court for”.”, and

(d) in paragraphs 2(7), 6(7), 9(4) and 13(3) of Schedule 19C after “is to” insert “(in England and Wales) the county court or (in Northern Ireland)”.

51BS Omit section 9(2) of the Protection from Eviction Act 1977 (exercise of jurisdiction by district judges).

51BT In section 9(5) of the Protection of Children Act 1999 after “imposed” insert “in England and Wales by the county court or in Northern Ireland”.

51BU In section 32(10) of the Public Audit (Wales) Act 2004 for “courts” substitute “court”.

51BV In paragraph 6(2)(a) of Schedule A1 to the Regulation of Investigatory Powers Act 2000 for “a county court” substitute “the county court in England and Wales or a county court in Northern Ireland”.

51BW In section 104(1) of the Road Traffic Act 1988 (conduct of proceedings)—

(a) for “before the registrar of a” substitute “the”, and

(b) after “may” insert “,except in the county court if rules of court provide otherwise,”.

51BX In section 113(3) of the Settled Land Act 1925 for “any county” substitute “the county”.

25 Jun 2012 : Column 64

51BY In paragraph 9(3)(a) of Schedule 5 to the Social Security Act 1989 for “such a” substitute “that”.

51BZ In paragraph 3(1) of Schedule 4 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 after “proceedings” insert “in England and Wales in the county court or in Northern Ireland”.

51CA In the Solicitors Act 1974—

(a) in section 61(6) for “any county” substitute “the county”,

(b) in section 68(2) for “that county” substitute “the county”, and

(c) in section 69(3) for “any county court in which any part of the business was done” substitute “the county court”.

51CB In section 61(3)(a) of the Taxation of Chargeable Gains Act 1992 for “county courts” substitute “the county court”.

51CC In section 66(1) of the Taxes Management Act 1970 after “proceedings” insert “in England and Wales in the county court or in Northern Ireland”.

51CD In the Torts (Interference with Goods) Act 1977—

(a) in section 4(4)—

(i) for “under section”, in the first place, substitute “for the High Court in England and Wales”,

(ii) omit “84 of the Senior Courts Act 1981”, and

(iii) omit “99 of the Supreme Court of Judicature (Consolidation) Act 1925”,

(b) in section 4(5)—

(i) after “in relation to county courts” insert “in Northern Ireland”,

(ii) after “High Court” insert “in Northern Ireland”, and

(iii) omit “84”, “99”, “of the said Act of”, “1981”, “1925”, “section or” and “section 75 of the County Courts Act 1984 or”,

(c) in section 4 after subsection (5) insert—

“(6) Subsections (1) to (4) have effect in relation to the county court in England and Wales as they have effect in relation to the High Court in England and Wales.”,

(d) in section 9(3) and (4) after “brought” insert “in England and Wales in the county court or in Northern Ireland”,

(e) in section 9(3)—

(i) before “county court rules” insert “rules of court or”, and

(ii) for “same county” substitute “same”, and

(f) in section 13(3) for the words from the beginning to “if” substitute “In this section “the court”, in relation to England and Wales, means the High Court or the county court and, in relation to Northern Ireland, means the High Court or a county court, save that a county court in Northern Ireland has jurisdiction in the proceedings only if”.

51CE In section 75(1) of the Trade Marks Act 1994 for “or a county court having” substitute “,or the county court where it has”.

51CF In section 82(2)(b) of the Traffic Management Act 2004 for “if a county” substitute “if the county”.

51CG In the Tribunals, Courts and Enforcement Act 2007—

(a) in section 121(8) for paragraphs (a) and (b) substitute—

“(aa) in relation to an administration order or an enforcement restriction order: the county court;”, and

(b) omit sections 123(6) and 131(2), and paragraph 79(2)(b) of Schedule 13.

51CH In section 67(2) of the Trustee Act 1925 for “county courts” substitute “the county court”.

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51CI In section 11(1)(a) of the UK Borders Act 2007 for “a county court, in England and Wales or” substitute “the county court in England and Wales or a county court in”.

51CJ In section 5CE(5)(a) of the Veterinary Surgeons Act 1966 for “a county court” substitute “the county court in England and Wales or a county court in Northern Ireland”.

51CK In paragraph 11(1) of Schedule 15 to the Water Resources Act 1991 omit “for the area in which the land or any part of it is situated”.

76: Schedule 9, page 114, line 21, at end insert—

“Literary and Scientific Institutions Act 1854 (c. 112)

In section 30, “the judge of” and “aforesaid”.

Hovercraft Act 1968 (c. 59)

In section 2(1), “27 to 29,”.

Senior Courts Act 1981 (c. 54)

In Schedule 5, the entry for the Torts (Interference with Goods) Act 1977.

County Courts Act 1984 (c. 28)

In Schedule 2, paragraph 64.”

77: Schedule 9, page 114, line 35, at end insert—

“Legal Services Act 2007 (c. 29)

In Schedule 16, paragraph 69(a).

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (S.I. 2009/871)

Article 9(1) and (2).”

Amendments 70 to 77 agreed.

Schedule 9, as amended, agreed.

Schedule 10 : The family court

Amendments 78 to 84

Moved by Lord McNally

78: Schedule 10, page 116, line 20, leave out “chairmen of employment tribunals” and insert “Employment Judges”

79: Schedule 10, page 116, line 21, after “Wales” insert “or for Scotland”

80: Schedule 10, page 116, line 39, leave out from beginning to “a” in line 43

81: Schedule 10, page 116, line 44, leave out from “court” to “may” in line 45

82: Schedule 10, page 116, line 47, after “judge,” insert “or a body of which the judge is a member or officer, or a body of whose governing body the judge is a member,”

83: Schedule 10, page 117, line 40, at end insert—

“(7A) Paragraph 5 of that Schedule (duty to make rules to achieve purpose specified by Lord Chancellor) does not apply in relation to rules under this section.”

84: Schedule 10, page 123, line 20, leave out from “1958” to end of line 21 and insert “, the Maintenance Orders (Reciprocal Enforcement) Act 1972 or Part 1 of the Civil Jurisdiction and Judgments Act 1982.”

Amendments 78 to 84 agreed.

Amendment 84A

Moved by Lord McNally

84A: Schedule 10, page 126, line 25, at end insert “or the first rules under section 31O(4)”

Lord McNally: I beg your Lordships’ pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am

25 Jun 2012 : Column 66

slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film “The Birds”, in which the birds start to appear rather menacingly. I am looking at the Cross Benches, where noble Lords are starting to come in and wait.

These amendments implement one of the recommendations of the Delegated Powers Committee’s report on the Bill. In line with that committee’s recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.

Lord Beecham: My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,

“make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser”.

It is a long time since I participated in a magistrates’ court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.

The concern has been expressed before in your Lordships’ House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices’ clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister’s enlightenment with interest, if there is such enlightenment.

6.15 pm

Lord McNally: My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates’ court may be delegated in rules to justices’ clerks if a function is one which may be undertaken by a single justice.

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As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.

This new measure provides scope for justices’ clerks and assistant justices’ clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court’s functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates’ courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.

We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.

Lord Beecham: I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.

It would be helpful to your Lordships’ House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts—where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.

Lord McNally: It is a very fair question and I will try to give the noble Lord a very full answer.

Amendment 84A agreed.

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Amendments 84B to 99

Moved by Lord McNally

84B: Schedule 10, page 126, line 26, at end insert “or rules”

85: Schedule 10, page 126, line 39, at end insert—

“Debtors Act 1869 (c. 62)

1A (1) In proviso (1) to section 5 of the Debtors Act 1869—

(a) for the words from “any court other than” to “is to say,” substitute “the county court—”, and

(b) omit paragraph (c).

(2) In that section—

(a) for “superior courts may” substitute “High Court or family court may”,

(b) for “by a superior court”, and for “by any superior court”, substitute “by the High Court or family court”, and

(c) at the end insert—

“Section 31E(1)(b) of the Matrimonial and Family Proceedings Act 1984 (family court has county court’s powers) does not apply in relation to the powers given by this section to the county court.””

86: Schedule 10, page 126, line 41, at end insert “, but sections 2(1) to (5), 2A and 5(2) to (4) of that Act as applied by section 36(3) of the Civil Jurisdiction and Judgments Act 1982 (re-registration in different Northern Ireland court of orders made in England and Wales or Scotland and registered in a Northern Ireland court) have effect without the amendments made in them by this Schedule.”

87: Schedule 10, page 128, line 39, at end insert—

“9A Section 18 (powers of magistrates to review committals etc) is repealed.

9B (1) Section 20 (registration, variation and arrears) is amended as follows.

(2) Omit subsections (1) and (2) (magistrates’ courts: applications for registration, revocation or variation of maintenance orders).

(3) In subsection (8) (repeated complaints to enforce payment)—

(a) for “a complaint” substitute “an application”, and

(b) for “complaint”, in the second and third places, substitute “application”.

(4) For the title substitute “Repeat applications to enforce payment of maintenance arrears”.

9C In section 21(1) omit the definition of “magistrates’ court”.

Public Records Act 1958 (c. 51)

9D In paragraph 4(1) of Schedule 1 to the Public Records Act 1958 (records which are public records) after paragraph (a) insert—

“(aa) records of the family court;”.”

88: Schedule 10, page 129, line 12, at end insert—

“Civil Evidence Act 1968 (c. 64)

11A In section 12(5) of the Civil Evidence Act 1968 in the definition of “matrimonial proceedings” for “a county” substitute “family”.

Administration of Justice Act 1970 (c. 31)

11B (1) In section 11 of the Administration of Justice Act 1970 (restriction on powers of committal under section 5 of the Debtors Act 1869)—

(a) omit the “and” at the end of paragraph (a),

(b) in paragraph (b) for the words from “in respect” to “judgment” substitute “in respect of a judgment”, and

(c) after paragraph (b) insert “; and

(c) by the family court in respect of a High Court or family court maintenance order.”

(2) In section 28 of that Act (interpretation)—

(a) for “, “county court maintenance order”” substitute “and “family court maintenance order””, and

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(b) for “, a county court” substitute “and the family court”.”

89: Schedule 10, page 130, line 5, leave out “(a)” and insert “(a)(ii)”

90: Schedule 10, page 131, line 12, at end insert—

“Litigants in Person (Costs and Expenses) Act 1975 (c. 47)

27A In paragraph (a) of the second sentence in section 1(1) of the Litigants in Person (Costs and Expenses) Act 1975 before “in the Senior” insert “in the family court,”.”

91: Schedule 10, page 134, line 25, at end insert—

“50A In section 42(1)(a) and (b) (engaging in vexatious civil proceedings is ground for High Court making order under the section) after “High Court” insert “or the family court”.”

92: Schedule 10, page 135, line 6, at end insert—

“( ) In section 38(4) (regulations about orders which court may not make) after paragraph (d) insert “; and

(e) may make different provision for different purposes.””

93: Schedule 10, page 135, line 28, at end insert—

“Administration of Justice Act 1985 (c. 61)

62A In section 53(2) of the Administration of Justice Act 1985 (costs where judge unable to act) before the “and” at the end of paragraph (b) insert—

“(ba) proceedings in the family court;”.

Insolvency Act 1986 (c. 45)

62B In section 281(8) of the Insolvency Act 1986 (discharge does not release bankrupt from bankruptcy debt arising under order made in family proceedings), in the definition of “family proceedings”, for paragraph (a) (but not the “and” following it) substitute—

“(a) proceedings in the family court;”.”

94: Schedule 10, page 138, line 26, at end insert—

“74A (1) Section 28 (functions of justices’ clerks and assistant clerks) is amended as follows.

(2) After subsection (5) insert—

“(5A) For the purposes of subsections (1) to (5) the functions of justices of the peace do not include functions as a judge of the family court.”

(3) Omit subsection (9)(b) (requirement to consult Family Procedure Rule Committee) but not the “and” following it.”

95: Schedule 10, page 140, line 2, at end insert—

“Legal Services Act 2007 (c. 29)

83A (1) For paragraph 1(7)(c) of Schedule 3 to the Legal Services Act 2007 (rights of audience in chambers of exempt persons) substitute—

“(c) the proceedings are not reserved family proceedings and are being heard in chambers—

(i) in the High Court or county court, or

(ii) in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices).”

(2) In paragraph 1(10) of that Schedule in the definition of “family proceedings” after “also includes” insert “any proceedings in the family court and”.”

96: Schedule 10, page 140, line 35, at end insert—

“In Schedule 7, paragraphs 23 and 24.”

97: Schedule 10, page 141, line 14, at end insert—

“Family Law Act 1996 (c. 27)

In Schedule 8, paragraph 49.”

98: Schedule 10, page 141, line 21, after “paragraphs” insert “22,”

99: Schedule 10, page 141, line 33, leave out “101” and insert “103”

Amendments 84B to 99 agreed.

Schedule 10, as amended, agreed.

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Schedule 11 : Transfer of jurisdiction to family court

Amendments 100 to 114

Moved by Lord McNally

100: Schedule 11, page 145, line 23, at end insert—

“16A (1) In section 15(2) and (3) (service of process: endorsement by, and declarations before, justices of the peace etc) for “justice of the peace” substitute “judge of the family court”.

(2) In Schedule 2 (forms)—

(a) in the form numbered 1 (endorsement of summons) for “justice of the peace” substitute “judge of the family court”, and

(b) in the form numbered 2 (declaration as to service) for “Justice of the Peace” substitute “judge of the family court”.”

101: Schedule 11, page 148, line 17, at end insert—

“Maintenance Orders (Reciprocal Enforcement) Act 1972 (c. 18)

27A The Maintenance Orders (Reciprocal Enforcement) Act 1972 is amended as follows.

27B (1) Section 3 (magistrates’ court may make provisional maintenance order against person residing in reciprocating country) is amended as follows.

(2) In subsection (1) for “a magistrates’ court” substitute “the family court”.

(3) In subsection (4) (application not to be transferred etc)—

(a) before paragraph (a) insert—

“(za) a court to transfer proceedings from the family court to the High Court,”, and

(b) in paragraphs (a) and (b) after “magistrates’ court” insert “in Northern Ireland”, and

(c) in those paragraphs after “High Court” insert “of Justice in Northern Ireland”.

(4) In subsection (6) (effect of order being confirmed) omit “magistrates’”.

(5) Omit subsection (7)(b) (Northern Ireland: application of subsection (4)).

(6) In the title omit “magistrates’”.

27C In section 4(6) (Scotland: application of section 3(5) and (6)) after “for references to” insert “a court that are references to the family court or”.

27D Omit section 5(3A) (modification of section 60 of Magistrates’ Courts Act 1980 in relation to maintenance orders to which section 5 applies).

27E In section 7 (confirmation of order made in reciprocating country)—

(a) in subsection (5A) (court to exercise one of its powers under subsection (5B) upon confirming order)—

(i) for “a magistrates’ court in England and Wales” substitute “the family court”, and

(ii) for “shall” substitute “may”,

(b) in subsection (5B) (available powers)—

(i) in each of paragraphs (a) and (b) for the words from “the designated” to “Wales” substitute “the court”,

(ii) in paragraph (b) for “59(6) of the Magistrates’ Courts Act 1980” substitute “1(5) of the Maintenance Enforcement Act 1991”,

(c) in subsection (5C) (deciding on exercise of powers)—

(i) for “which of the” substitute “whether to exercise any of its”, and

(ii) omit “it is to exercise”, and

(d) in subsection (5D) (power to require account to be opened) for “Subsection (4) of section 59 of the Magistrates’ Courts Act 1980” substitute “Subsection (6) of section 1 of the Maintenance Enforcement Act 1991”.

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27F In section 8 (enforcement of registered maintenance orders)—

(a) in subsection (3) (offence of not giving notice of change of address to appropriate officer)—

(i) for “a registered order” substitute “an order registered in a court in Northern Ireland”, and

(ii) for “appropriate officer of the registering” substitute “clerk of that”,

(b) omit subsection (3A) (meaning of “appropriate officer”),

(c) omit subsections (4) to (4B) (enforcement by magistrates’ courts in England and Wales), and

(d) in subsection (5) (magistrates’ court to take prescribed steps) for “The magistrates’ court” substitute “A magistrates’ court in Northern Ireland”.

27G Omit section 9(1ZA) (modification of section 60 of Magistrates’ Courts Act 1980 in relation to registered order).

27H In section 10(3) (transfer to other magistrates’ court)—

(a) after “magistrates’ court”, in the first place, insert “in Northern Ireland”, and

(b) for the words from “that part” to “court is” substitute “Northern Ireland”.

27I (1) In section 14(3) (compelling attendance of witnesses etc)—

(a) for the words from “Section” to “1980” substitute “Articles 118(1), (3) and (4), 119 and 120 of the Magistrates’ Courts (Northern Ireland) Order 1981”, and

(b) after “a magistrates’ court” insert “in Northern Ireland”.

(2) Omit section 14(6) (Northern Ireland: modifications).

27J In section 17 (proceedings in magistrates’ courts)—

(a) in subsection (4) (courts in same area have same jurisdiction)—

(i) after “magistrates’ court”, in the first place, insert “in Northern Ireland”,

(ii) omit the words from “acting”, in the first place, to “Northern Ireland,”, and

(iii) for “district)” substitute “district”,

(b) in subsection (5A) (jurisdiction where respondent resides in reciprocating country) for “a magistrates’ court in England and Wales”, in both places, and for “such a court”, substitute “the family court”,

(c) in subsection (7) (proceedings in absence of respondent) for “a magistrates’ court”, in both places, substitute “the family court in England and Wales or a magistrates’ court in Northern Ireland”.

27K (1) Section 18 (magistrates’ courts rules) is amended as follows.

(2) Before subsection (1) insert—

“(A1) Rules of court may make provision with respect to the matters that would be mentioned in any of paragraphs (b), (c), (e) and (f) of subsection (1) if references in those paragraphs to a magistrates’ court, or to magistrates’ courts, were references to the family court.”

(3) In subsection (1) (provision which may be made in rules of court)—

(a) for the words before paragraph (a) substitute “The matters referred to in subsections (A1) and (2) are—”, and

(b) in paragraph (a) for “local justice area”, in both places, substitute “petty sessions district”.

(4) In subsection (1A) (further provision about rules of court in relation to England and Wales) for “(1)” substitute “(A1)”.

(5) For the title substitute “Rules of court”.

27L In section 21(1) in the definition of “the appropriate court”—

(a) after ““the appropriate court”” insert “—

25 Jun 2012 : Column 72

(a) ”, and

(b) for “Wales or” substitute “Wales means the family court; and

(b) in relation to a person residing or having assets”.

27M (1) Section 23 (orders registered in High Court under Maintenance Orders (Facilities for Enforcement) Act 1920) is amended as follows.

(2) In subsection (1) (orders registered at time when 1920 Act ceases to apply)—

(a) after “High Court”, in the first place, insert “or the High Court of Justice in Northern Ireland”,

(b) for “the High Court”, in the second place, substitute “subsection (1A) applies in relation to the order.

(1A) Where the order was at that time registered in the High Court, that court may, on an application by the payer or the payee under the order or of its own motion, transfer the order to the family court, with a view to the order being registered in the family court under this Part of this Act; and where the order was at that time registered in the High Court of Justice in Northern Ireland, that court”,

(c) after “magistrates’ court” insert “in Northern Ireland”, and

(d) after “registered in that” insert “magistrates’”.

(3) Before subsection (2) insert—

“(1B) Where the High Court transfers an order to the family court under this section it shall—

(a) cause a certified copy of the order to be sent to an officer of the family court, and

(b) cancel the registration of the order in the High Court.”

(4) In subsection (2) (certified copy to be sent to court which is to register order) after “High Court”, in the first place, insert “of Justice in Northern Ireland”.

(5) In subsection (3) (officer to register order) omit “appropriate”.

(6) In subsection (4)—

(a) for “the magistrates’” substitute “a”, and

(b) for “appropriate officer of the court” substitute “officer registering it”.

(7) Omit subsection (5) (Northern Ireland: modification).

(8) In subsection (6) (meaning of “appropriate officer”) for the words from “means—” to the end substitute “, in relation to a magistrates’ court in Northern Ireland, means the clerk of the court.”

27N In section 26(6)(a) (appropriate officer) for the words from “the designated” to the end substitute “an officer of the family court”.

27O In section 27B (sending application to which section 27A applies to appropriate magistrates’ court)—

(a) in subsection (1) for the words from “designated” to the end substitute “family court”,

(b) in subsection (2) (attempted service of respondent)—

(i) for “Subject to subsection (4) below, if” substitute “If”,

(ii) for “a magistrates’ court having jurisdiction to hear it” substitute “the family court”,

(iii) for “designated officer for the” substitute “family”, and

(iv) for “he” substitute “the family court”,

(c) omit subsections (4) and (5) (sending on of application to another magistrates’ court), and

(d) in the title for “appropriate magistrates’” substitute “family”.

27P In section 27C (applications to which section 27A applies: general)—

(a) in subsection (1) for “a magistrates’” substitute “the family”,

25 Jun 2012 : Column 73

(b) omit subsection (2) (disapplication of section 59 of Magistrates’ Courts Act 1980),

(c) in subsection (3) (court to exercise one of its powers under subsection (4) upon making order) for “shall” substitute “may”,

(d) in subsection (4) (available powers)—

(i) in each of paragraphs (a) and (b) for the words from “the designated” to “Wales” substitute “the court”, and

(ii) in paragraph (b) for “59(6) of the Magistrates’ Courts Act 1980” substitute “1(5) of the Maintenance Enforcement Act 1991”,

(e) in subsection (5) (deciding on exercise of powers)—

(i) for “which of the” substitute “whether to exercise any of its”, and

(ii) omit “it is to exercise”,

(f) in subsection (6) (power to require account to be opened) for “Subsection (4) of section 59 of the Magistrates’ Courts Act 1980” substitute “Subsection (6) of section 1 of the Maintenance Enforcement Act 1991”, and

(g) in subsection (7) (registration)—

(i) omit “designated officer for the”, and

(ii) omit “in the court”.

27Q In section 28 (applications by spouses under the Domestic Proceedings and Magistrates’ Courts Act 1978)—

(a) in subsection (1) (orders court may make)—

(i) for “The magistrates’ court” substitute “On”, and

(ii) after “1978” insert “, the family court”, and

(b) in subsection (2) (modifications of 1978 Act)—

(i) in paragraph (a) for “to 27” substitute “, 26”, and

(ii) omit paragraph (b), but not the “and” following it.

27R In section 28A (applications by former spouses under the Domestic Proceedings and Magistrates’ Courts Act 1978)—

(a) in subsection (2) (jurisdiction of magistrates’ court) for the words from the beginning to “it” substitute “The family court shall have jurisdiction to hear the application”,

(b) in subsection (3) (court’s powers) for “magistrates’ court hearing the application” substitute “family court”, and

(c) in subsection (6) (modifications of 1978 Act)—

(i) in paragraph (e) for “and 25 to 28” substitute “25, 26 and 28”, and

(ii) omit paragraph (f), but not the “and” following it.

27S Section 28B (certain orders under Schedule 11 to the Children Act 1989 do not apply) is repealed.

27T (1) Section 32 (transfer of orders) is amended as follows.

(2) In subsection (2) (transfer to other magistrates’ court)—

(a) for “the appropriate officer”, in the first and second places, substitute “the clerk”,

(b) after “magistrates’ court”, in the first place, insert “in Northern Ireland”,

(c) for the words from “that part” to “court is” substitute “Northern Ireland”, and

(d) for “the appropriate officer”, in the third place, substitute “that clerk”.

(3) Omit subsection (2A) (meaning of “appropriate officer”).

(4) In subsection (8) in the definition of “the appropriate court”—

(a) after ““the appropriate court”” insert “—

(a) ”, and

(b) for “Wales or” substitute “Wales, means the family court; and

(b) in relation to a person residing”.

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27U In section 33 (enforcement of orders)—

(a) omit subsections (3) and (3A) (enforcement by magistrates’ courts in England and Wales),

(b) in subsection (3B) (enforcement by courts of summary jurisdiction in Northern Ireland) after “jurisdiction”, in the first place, insert “in Northern Ireland”, and

(c) in subsection (4) (magistrates’ court to take prescribed steps) after “court” insert “in Northern Ireland”.

27V In section 34 (variation and revocation of orders)—

(a) in subsection (1) (powers of registering court etc) omit “subsection (3A) below and”,

(b) in subsection (3) (officer to whom application to be sent) for the words from “shall” to the end substitute “shall—

(a) if the registering court is the family court, send the application together with any documents accompanying it to that court,

(b) if the registering court is a magistrates’ court in Northern Ireland, send the application together with any documents accompanying it to the clerk of that court.”, and

(c) omit subsection (3A) (modification of section 60 of Magistrates’ Courts Act 1980 in relation to registered orders).

27W (1) Section 34A (variation of orders by magistrates’ courts in England and Wales) is amended as follows.

(2) In subsection (1) (application of certain provisions)—

(a) for “a magistrates’ court in England and Wales” substitute “the family court”, and

(b) for paragraph (a) substitute—

“(a) section 1(3A) of the Maintenance Enforcement Act 1991;”.

(3) In subsection (2) (court may exercise one of powers under subsection (3) upon varying order) for “a magistrates’ court in England and Wales” substitute “the family court”.

(4) In subsection (3) (available powers)—

(a) in each of paragraphs (a) and (b) for the words from “the designated” to “Wales” substitute “the court”, and

(b) in paragraph (b) for “59(6) of the Magistrates’ Courts Act 1980” substitute “1(5) of the Maintenance Enforcement Act 1991”.

(5) Omit subsections (4) to (8) (variation by justices’ clerk).

(6) In subsection (9) (deciding on exercise of powers)—

(a) for “subsections (2) and (8)” substitute “subsection (2)”,

(b) for “which of the” substitute “whether to exercise any of its”,

(c) omit “it is to exercise”, and

(d) after “debtor” insert “or the creditor”.

(7) In subsection (10) (power to require account to be opened) for “Subsection (4) of section 59 of the Magistrates’ Courts Act 1980” substitute “Subsection (6) of section 1 of the Maintenance Enforcement Act 1991”.

(8) In subsection (11) (meaning of “creditor” and “debtor”) for “section 59 of the Magistrates’ Courts Act 1980” substitute “section 1 of the Maintenance Enforcement Act 1991”.

(9) In the title for “magistrates’ courts” substitute “the family court”.

27X In section 35 (further provision relating to variation etc of orders by magistrates’ courts in England and Wales)—

(a) in subsection (1) (powers exercisable notwithstanding that applicant resides outside England and Wales) for “a magistrates’ court in England and Wales” substitute “the family court”,

(b) in subsection (2) (powers under section 34A not exercisable) omit “, or of the clerk of the court,”,

(c) in subsection (3) (proceedings in absence of respondent) for “a magistrates’ court in England and Wales” substitute “the family court”, and

25 Jun 2012 : Column 75

(d) in the title for “magistrates’ courts” substitute “the family court”.

27Y (1) Section 36 (admissibility of evidence given in convention country) is amended as follows.

(2) Before subsection (1) insert—

“(A1) A statement contained in a document mentioned in subsection (1) shall—

(a) in any proceedings in the family court arising out of an application to which section 27A(1) of this Act applies or an application made by any person for the variation or revocation of a registered order, or

(b) in proceedings on appeal from proceedings within paragraph (a),

be admissible as evidence of any fact stated to the same extent as oral evidence of that fact is admissible in those proceedings.”

(3) In subsection (1) (statements made in convention country to be admissible)—

(a) for “A statement contained in—” substitute “The documents referred to in subsections (A1) and (1A) are—”,

(b) omit the “or” following paragraph (a) and the “or” following paragraph (b),

(c) after paragraph (c) insert—

“(1A) A statement contained in a document mentioned in subsection (1)”,

(d) after “magistrates’ court” insert “in Northern Ireland”, and

(e) omit “an application to which section 27A(1) of this Act applies,”.

27Z In section 38 (obtaining evidence at request of court in convention country)—

(a) in subsection (4) (application of provisions of Magistrates’ Courts Act 1980) for the words from “Section” to “1980” substitute “Articles 118(1), (3) and (4), 119 and 120 of the Magistrates’ Courts (Northern Ireland) Order 1981”,

(b) in subsection (4) after “a magistrates’ court” insert “in Northern Ireland”, and

(c) omit subsection (6) (Northern Ireland: modifications).

27Z1 In section 38A(1) (rules of court) after “done by” insert “the family court or”.

27Z2 In section 42 (provisional order to cease to have effect on remarriage) in subsection (1) and in the title omit “magistrates’”.

27Z3 In section 47(3) (interpretation: jurisdiction of magistrates’ courts) for the words from “construed—” to “in relation to”, in the second place, substitute “construed in relation to”.”

102: Schedule 11, page 153, line 10, at end insert—

“Civil Jurisdiction and Judgments Act 1982 (c. 27)

55A (1) The Civil Jurisdiction and Judgments Act is amended as follows.

(2) In the second sentence of section 5(1) (enforcement of maintenance orders under 1968 Convention) after “Article 32” insert “but, if the appropriate court is a magistrates’ court in England and Wales, the Lord Chancellor is to transmit the application to the family court”.

(3) In section 5(2) (determination of transmitted application) for “officer of that court” substitute “officer—

(a) of the family court if the application is transmitted to that court, or

(b) in any other case, of the court having jurisdiction in the matter”.

(4) Omit section 5(5A) to (5C) (enforcement in magistrates’ courts in England and Wales).

(5) In section 5(7) omit “England and Wales or”.

(6) In section 5(8) omit paragraph (a) (including the “and” at the end).

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(7) In the second sentence of section 5A(1) (enforcement of maintenance orders under the Lugano Convention of 2007) after “Article 39” insert “but, if the appropriate court is a magistrates’ court in England and Wales, the Lord Chancellor is to transmit the application to the family court”.

(8) In section 5A(2) (determination of transmitted application) for “officer of” substitute “officer—

(a) of the family court if the application is transmitted to that court, or

(b) in any other case, of”.

(9) Omit section 5A(5) (enforcement in magistrates’ courts in England and Wales).

(10) In section 5A(7) omit “England and Wales or”.

(11) In section 5A(9) omit paragraph (a) (including the “and” at the end).

(12) Omit sections 6(3)(a) and 6A(3)(a) (appeals in England and Wales).

(13) In section 7(4) (interest on arrears)—

(a) omit “England and Wales or”,

(b) omit “section 2A of the Maintenance Orders Act 1958 or”, and

(c) for “enable” substitute “enables”.

(14) In section 15(3) (jurisdiction of magistrates’ courts)—

(a) after “particular magistrates’ court” insert “in Northern Ireland”, and

(b) for “in the same local justice area (or, in Northern Ireland, for the same petty sessions district)” substitute “for the same petty sessions district”.

(15) In section 36(1)(b) (registration of maintenance orders) for “county court order, a magistrates’” substitute “family”.

(16) In section 48(3) (rules of court relating to maintenance orders)—

(a) in the words before paragraph (a) for “magistrates’ courts,” substitute “the family court, the power to make rules of court for magistrates’ courts in Northern Ireland,”,

(b) in paragraphs (a) and (g) after “purposes of” insert “the family court or”, and

(c) in paragraphs (f) and (h) after “which” insert “the family court or”.

(17) In section 50 (interpretation) in the definition of “court of law”—

(a) after paragraph (a) insert—

“(aa) in England and Wales, the Court of Appeal, the High Court, the Crown Court, the family court, the county court and a magistrates’ court,”, and

(b) in paragraph (b) omit “England and Wales or”.”

103: Schedule 11, page 154, line 38, at end insert—

“71A In section 14(1) (enforcement of residence orders in magistrates’ courts) omit “under section 63(3) of the Magistrates’ Courts Act 1980”.”

104: Schedule 11, page 157, line 5, at end insert—

“Criminal Justice Act 1991 (c. 53)

93A In section 60(3) (applications under section 25 of Children Act 1989 in certain cases) for “92(2) of that Act or section 65 of the 1980” substitute “92(7) of that”.”

105: Schedule 11, page 165, line 9, at end insert—

“170A In section 98F (power of constable to assist in exercise of powers of entry)—

(a) omit subsection (5) (which applies Schedule 11 to the Children Act 1989 to proceedings under section 98F), and

(b) for subsection (6) (meaning of “the court”) substitute—

“(6) In this section “court” means the High Court or the family court.””

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106: Schedule 11, page 166, line 5, after “paragraphs” insert “105, 109,”

107: Schedule 11, page 166, line 6, at end insert—

“Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))

In Schedule 6, paragraphs 21 and 25.”

108: Schedule 11, page 166, line 10, leave out “and 70” and insert “, 45, 50, 70 and 89(2)”

109: Schedule 11, page 166, line 15, leave out “paragraph 3” and insert “paragraphs 3, 13, 14, 18 and 21”

110: Schedule 11, page 166, line 18, leave out “paragraph 2(7)” and insert “paragraphs 2(7), 7, 9 and 15”

111: Schedule 11, page 166, line 24, at end insert—

“Access to Justice Act 1999 (c. 22)

In Schedule 13, paragraphs 73(1) to (3), 79 and 80.”

112: Schedule 11, page 166, line 30, at end insert “151 to 153, 154(a), 155(2)(a), 157, 158(a), 159 to 163,”

113: Schedule 11, page 166, line 31, after “196(2),” insert “268, 269,”

114: Schedule 11, page 167, line 10, column 2, leave out from beginning to “8.” in line 12 and insert “Articles 5 to”

Amendments 100 to 114 agreed.

Schedule 11 agreed.

Clause 18 : Judicial appointments

Amendment 115

Moved by Lord Lloyd of Berwick

115: Clause 18, page 16, leave out lines 24 to 27

Lord Lloyd of Berwick: Amendments 115 and 116 are both concerned with the constitution of the Supreme Court. Amendment 120 is concerned with diversity, and applies not only to the Supreme Court but to the Court of Appeal and the High Court. These amendments were all grouped together, but it might be convenient for the Committee to hear the argument first on Amendments 115 and 116, and to hear the Minister’s reply on that before I develop the argument on Amendment 120. They are closely connected, and so that might be convenient, as it would enable me to rest my voice and the Minister a chance to get in—I was going to say, before it is too late.

At Second Reading I expressed some surprise, even incredulity, that we should be seeking to introduce part-time judges into the Supreme Court. So far as I know, there are no part-time judges in the Supreme Court of the United States, or in the International Court at The Hague, or indeed at any other supreme court anywhere else in the world. The Explanatory Notes give no reasons for this sudden change in the constitution of the Supreme Court so soon after its creation. However, the reason appears to be that the Government want to encourage more women and ethnic minority judges to apply for membership of the Supreme Court. Thus, if the Government’s view is accepted, one could have 11 full-time white judges—including, by convention, always two from Scotland and one from Ireland—plus one part-time woman judge and another part-time black judge, making 13 judges in all, but only 12 full-time equivalents. That seems to be the idea.

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What, then, is the difficulty? Everybody agrees on two things. First, that in choosing judges at any level, one must always choose the best available candidate. This principle is now enshrined in Section 63(2) of the 2005 Act, which says that selection must be solely on merit. I said that everybody agrees about that, but that is not quite true, because the noble and learned Lord, Lord Falconer, does not agree. He believes that merit is only a threshold, and is supported in that view by Professor Cheryl Thomas. However, their view was, I think I can say, decisively rejected by the Constitution Committee, so I will say no more about it.

The second thing on which we are all agreed is that we need greater diversity among the judges, and particularly at the top. The difficulty is how to achieve that second objective without infringing the first. This problem has been around for a long time—almost for as long as I can remember. If there had been a quick solution, successive Lord Chancellors would, I am quite sure, have found it by now. However, sadly, there is no quick or easy solution.

The Government think that they may now have found a way forward. They argue that we should be able to appoint part-time judges in the Supreme Court in order to enable women with family commitments to apply for that appointment. I say at once that that is a very strong argument—indeed a decisive one—at the circuit judge level and below, where applications are likely to come from much younger women. However, I cannot see what relevance it could have to the Supreme Court, where the only family commitments that any applicant is likely to have will be those of a grandparent. I cannot for the life of me see how the argument could apply in the place of male judges from ethnic minorities.

The truth is that if we enact Clause 18 and Schedule 12, it will not make the slightest difference to the number of women or black judges applying to become Supreme Court judges. In practice, therefore, if this part of the Bill is enacted, it will do nothing at all to increase diversity at that level, which is the whole object. I suggest that since that is the only reason given for taking this novel course, we should think no more about it.

It may be said at this stage that this is a depressing outlook, which was a point made by the noble Lord, Lord Lea of Crondall, during my speech at Second Reading, and I was very glad that he made that intervention. However, I have to tell him and the Committee that it is not all gloom. If one takes the figures given on page 25 of the Constitution Committee report, in 1998 only 10% of all judges were women. By 2005 the figure was 17%, and now it is 22%—more than double. Of the 2,500 appointments made by the Judicial Appointments Commission since 2005, 35% have been women. One finds the same picture in the 2010 report from the advisory panel.

In 1998, there were no women sitting as Law Lords, only one woman in the Court of Appeal, and only nine in the High Court. By the end of 2011, there was one woman sitting in the Supreme Court; there were five women in the Court of Appeal, in contrast to one; and 18 in the High Court, in contrast to nine. There are at least 78, and probably many more, on the circuit Bench.

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6.30 pm

Lord Lea of Crondall: Given that the noble and learned Lord kindly mentioned my intervention, he will agree that it specifically related to another aspect of inequality of access, whereby 75% of judges—and the percentage is higher, the higher up you go—as compared with 7% of the population, were educated at public schools. Although his point about women is a good one, the noble and learned Lord, Lord Lloyd, said that my point on public schools was a bad one on the grounds that there is no way in which you can manipulate appointment on merit to deal with something that happened 50 years ago, such as where you went to school. I simply ask the noble and learned Lord, if I concede that you cannot do anything in terms of social engineering at this level, whether he will agree that the judiciary should take on board that it is highly damaging if nothing is seen to be done at the junior barrister level regarding access to chambers. Mummy and daddy can afford to take you through that period, but working-class people cannot have that access. Will the noble and learned Lord take that point in any way at all, because he did not do so at Second Reading?

Lord Lloyd of Berwick: I am grateful to the noble Lord for intervening again. I had interpreted his question at Second Reading as referring to diversity as a whole, and not limited to the number of judges who had been to public school. The Government’s case is based on the need to appoint more women judges, rather than more men, from people who have not been to public school. I am afraid that I do not have the comparative figures from 1998 and today on those who have been to public school, but I could perhaps find them and let the noble Lord know in due course.

The lesson that I draw from the figures that I have given is surely clear enough. If you want more diversity at the top, in the sense that Government and all of us want diversity, you must start at the bottom and work up, as we have already done and as the figures show. Women with family commitments are already being appointed in large numbers as part-time judges to the circuit Bench and below. In due course, the best of those women—and I can tell the Committee that from my experience the best are very good indeed—will, like the best men, reach the top via the High Court and the Court of Appeal. Yes, we all accept that it is a slow process, but there is no short cut to the top—a short cut implied in the proposal to allow women to sit part time in the Supreme Court—nor should there be such a short cut without infringing the overriding principle that the appointments must be solely on merit.

I have one last point. Introducing part-time judges into the Supreme Court would, on any view, be a major change. The court has been in existence only since 2010. It is surely too soon to effect such an important change without much more thought and further consultation. This is a point that I suspect will be developed by the noble Lord, Lord Goodhart. The answers given to question 13 in the recent consultative exercise would have been all but useless in relation to the Supreme Court, even if the basis on which that question was asked had been comprehensible, which it was not—to me at any rate. In contrast, the composition

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of the Supreme Court was given much thought by the Select Committee in 2004. The noble and learned Lord, Lord Falconer, was a member of that committee as Lord Chancellor and he played a full part. He will remember that there was much discussion about whether the Supreme Court should consist of 15 judges, as some thought, or nine, as others thought, so that it could sit en banc. However, it was never once suggested by the noble and learned Lord or anyone else that we ought to have part-time judges in the Supreme Court. Yet the diversity problem at that time was even greater than it is today.

Baroness Jay of Paddington: My Lords, I simply wish to ask the noble and learned Lord whether or not the strictures that he has applied to appointments to the Supreme Court would apply also to the High Court and the Court of Appeal, because—I speak in my capacity as chairman of the Constitution Committee, which the noble and learned Lord kindly cited—we recommended that the Senior Courts Act 1981 should be amended to allow flexible working to be included at a senior level, but not at the Supreme Court.

Lord Lloyd of Berwick: Indeed. I have to answer the noble Baroness by saying that I am certainly not at the moment persuaded that part-time judges should be appointed to the Court of Appeal. I simply do not see how it would work. I take the same view about High Court judges. The way to the High Court Bench for the sort of women whom the noble Baroness has in mind is via the circuit Bench. There is a clear way through for them. Indeed, one noble Baroness who is here today has taken exactly that course.

Lord Falconer of Thoroton: Perhaps I may follow up on that. I am not clear why the noble and learned Lord thinks that it is okay for there to be part-time circuit judges but not part-time High Court judges. I say that because I appointed High Court and circuit judges who had young children. I am completely unclear as to why the noble and learned Lord draws a distinction.

Lord Lloyd of Berwick: The noble and learned Lord, as Lord Chancellor, never appointed a part-time judge to the High Court. He quite rightly appointed plenty of part-time judges to the circuit Bench, and that was correct because they are obviously likely to be younger. We have to encourage young women with family commitments to come forward at that stage. The noble Lord will be the first to accept that not many such women apply to become members of the Supreme Court.

Lord Falconer of Thoroton: The noble and learned Lord will confirm that I was not legally entitled to appoint them to the High Court. That is the point of the amendment.

Lord Lloyd of Berwick: I confirm that the noble and learned Lord was not entitled to appoint to the High Court, but there was no need for him to do so because he could, and did, appoint to the circuit Bench, from which High Court judges would emerge. He knows that very well.

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Lord Thomas of Gresford: Perhaps I may be permitted to intervene on this matter. The lifestyle of a High Court judge is of course very different from that of a circuit judge. High Court judges sit half the time in London and half the time on circuit. Circuit judges do what they are entitled to do; they sit on circuit. Looking after a family is far easier if you are a circuit judge than if you are a High Court judge.

Lord Falconer of Thoroton: I will not intervene on his intervention, but the noble Lord is wrong.

Lord Lloyd of Berwick: I beg to move.

Lord Carswell: My Lords, I support the amendment—

Lord Goodhart: I am sorry to interrupt, but it appears that in the order in which these matters are printed, I am the second and final person specifically connected with Clause 18 in this group, and it seems to me that this is the point at which I should be able to state my views on this matter.

The Deputy Chairman of Committees (Baroness McIntosh of Hudnall): My Lords, I believe that the amendment in the name of the noble and learned Lord, Lord Lloyd, has been moved, and the name of the noble Lord is not, I think, on that amendment. However, the name of the noble and learned Lord, Lord Carswell, is on it.

Lord Lloyd of Berwick: My amendment has been moved by me and supported by two other noble Lords who would like to speak to it.

Lord Falconer of Thoroton: I think that the noble and learned Lord, Lord Lloyd is correct that because the name of the noble and learned Lord, Lord Carswell is on the amendment of the noble and learned Lord, Lord Lloyd, the noble and learned Lord, Lord Carswell, should come next.

Lord Carswell: I am grateful to your Lordships, and I am sure that the noble Lord, Lord Goodhart, will give us the benefit of his wisdom very shortly. I support Amendments 115 and 116, moved by the noble and learned Lord, Lord Lloyd of Berwick. Your Lordships know him very well. You know his history and his distinguished attainments. Perhaps I may shortly explain where I come from, both literally and figuratively?

I was for 25 years a judge, first in the High Court of Northern Ireland, in the Court of Appeal. For seven years I was Lord Chief Justice of Northern Ireland, and very closely concerned with appointments at all levels. Then, for the final five years before I retired I was a member of the Appellate Committee of this House, sitting as a Lord of Appeal in Ordinary, and hearing a very wide range of appeals, including some of considerable significance in the public interest.

I also gave evidence to the Select Committee of this House on the constitution, and I regret rather that they did not see fit to accept all of my submissions. I do not say that out of any feeling of personal pique, but rather because of the strength of my belief that one must appoint the best persons to judicial posts. By

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best, I mean most fitted to carry out judicial functions. That must and shall always be, I hope, the paramount criterion.

It is vital to do that to preserve the quality of justice and of the legal system, to which other persons have paid tribute on other occasions. I accept without reservation that that requires a certain amount of diversity. First of all, diversity of skills and experience—that goes without saying—so that the Court may have the benefit of the best advice and participation of those who really know about a particular subject. Secondly—and this is a more delicate area—diversity of background, gender, ethnicity, and professional experience and background.

I also accept, quite unreservedly, that facilitating part-time working is highly desirable, to help women in particular to pursue their careers and combine them with family responsibilities. I am strongly in favour of this where it is achievable. The provisions of paragraphs 2 and 10 of Schedule 12 are designed to assist this admirable object. My point is that the intention is excellent but the method is wrong.

Part-time appointments at the higher level—High Court, Court of Appeal, and Supreme Court—simply will not work. First, judges in any of those courts have to be available to shoulder their share of the burden of long and complex cases. That is simply not possible for a part-time judge. That applies most obviously at trial court level, where you might have to take a six-month trial, or a long civil case. If you cannot take your share of those, you are obviously deficient and in default in some respect.

6.45 pm

Baroness Falkner of Margravine: I am very cognisant of the difficulties that might be involved in those scenarios, but has it never happened in the Supreme Court, or in its predecessor court, that a judge in the middle of a trial got ill for an extended period of time? I suggest that both the noble and learned Lords, Lord Woolf and Lord Carswell, are framing this debate in terms of part-time far too narrowly. There is far greater flexibility in the reality of part-time working than the noble Lord suggests.

Lord Carswell: Perhaps I might develop the point as I come to it. I have no experience myself of a judge taking ill and being unable to carry on, but I do not think that that really assists the argument.

It also applies—and I say this from my own observation—at trial court level, where it is most obvious. It is a significant factor in appellate courts. No doubt in the Supreme Court many cases are quite short—two days, sometimes even less—but there are many cases, and the most important and significant cases tend to be somewhat longer. If a part-time judge is unable to sit on these for practical reasons, and cannot pull his or her weight, then that judge is downgraded in the eyes of other people to being a second-string member of the court. That is no good for anybody.

Secondly, on the practical level a part-time judge would normally need some fixity of schedule, so that the rest of the judge’s life can be arranged. That is why

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a person is likely to want to be a part-time judge on, let us say, Monday and Tuesday of each week. The timetable would have to be juggled to ensure that the judge is able to sit on those regular days. Obviously difficulties would arise if for various reasons an appeal needs to be listed on the other days of the week, and of course that happens, in fitting in the appeals for which that judge’s particular skills are required.

It is not as easy as turning up on fixed days and taking cases on those days. I fear that it is bound to lead to a feeling that part-time judges are not pulling their weight. This is highly detrimental to collegiality, which is of prime importance on an appellate bench. It may be viewed—however unfairly—by others that that judge is not a proper member of the court. The judge may also feel, subjectively, concern that she is not fully accepted as a full member. That, although it may not be exactly the feeling held by the others, would undermine the judicial confidence which is so necessary for high-class judicial work.

It is important that we try to find ways of accommodating this problem and of using the talents of able women, of which I am very strongly in favour myself. It is important that we can work out a way of not confining them to the junior ranks where it is easier in practice for them to carry out their functions part-time.

A suggestion has been mooted by the noble and learned Baroness, Lady Butler-Sloss, that one could do that by stages, for a woman. If she has family responsibilities at an earlier part of the time when she is ready for judicial life, then she could be appointed to a lower-tier court, with a clear assurance that when family circumstances change and she would be available for full-time work, she would receive proper and serious consideration for early promotion to the higher levels, and that that assurance should be fully honoured by those who are making the appointments. Paragraph 2 was a well intentioned attempt to facilitate women or other people by extending part-time appointments, but I fear that it did so in the wrong way.

Lord Woolf: My Lords, I spoke on the subject at Second Reading. What I said is on the record and I will not repeat it. However, I am most anxious that it should not be thought, as a consequence of my speaking in succession to the noble and learned Lords, Lord Lloyd and Lord Carswell, that retired members of the senior judiciary are against increasing diversity. I stress as forcefully as I can that the contrary is true. I know from the times when I was Chief Justice or held other senior offices that we did everything we could in co-operation with successive Lord Chancellors to improve the position. The message that became clear as a result of our efforts was that achievements would be brought by approaching the matter in stages.

The first step involved tackling those who were attending law schools in this jurisdiction and ensuring an egalitarian approach there. I am happy to say that if one goes now to the law schools of this country, one finds at least an equal number of women and men studying to become our lawyers and judges of the future.

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The next stage is to make sure that any hurdle that can reasonably be removed is removed from the path of those who enter the legal profession. At the moment our task is to ensure that they realise that the opportunities for judicial appointments are greater today than they have ever been. The appointments system that we have will treat applicants on a totally equal basis irrespective of their sex and of any background that they might consider a possible handicap. The judiciary plays its part in ensuring that the message is heard by those entering the legal profession and by those within it.

On the issue raised by the amendment of the noble and learned Lord, Lord Lloyd, to which I put my name, it is no use putting something in legislation that will have no practical effect. I refer to part-time judges for the Supreme Court, because it seems it is here where the argument seems clearest. From my knowledge of those who might seek this judicial appointment, I can conceive of nobody who could not take a full-time appointment to the Supreme Court but might be able to take part-time employment there. Having made that proposition, I point to the nature of the Supreme Court and to its role in our legal system now that it has been established. It is the highest court we have, and it has the heavy responsibility of maintaining the reputation established by generations of Supreme Court judges, who in the past were called Lords of Appeal in Ordinary. The court is looked on internationally as one of the finest law courts that there is, and its decisions are treated with the greatest respect.

We must do two things. First, we must not fall into the trap of using legislation to make gestures. To put into this legislation a provision that refers to part-time Supreme Court judges, for the purpose of trying to give a message to those who might be coming through the system that they should seek to become a Supreme Court judge, would be unrealistic if it implied that someone of mature years—probably 60—who wished to be a Supreme Court judge could apply for the highest pinnacle of our judiciary on any basis other than full-time. If there is to be an educational process, it should take place at a lower level in the system. I urge the Committee not to put into the Bill a provision that will have the effect of offering part-time employment in the Supreme Court when there is no realistic possibility that there will be any candidate for that part-time post who could be appointed in the foreseeable future.

The result will be that people will say, “Look, in 2012 Parliament specifically passed legislation that was intended to make available to a woman the possibility to sit as a part-time Supreme Court judge—but nobody has done that”. It will not happen because there has never been a candidate who could apply to be a Supreme Court judge under present circumstances.

Lord Goodhart: My Lords, I have proposed the removal from the Bill of Clause 18 and Schedule 12. I make it clear that this is not done to abolish the provisions that are dealt with in Clause 18 and Schedule 12. Instead I intend to enable the Government to provide, in proceedings that are separate from the Bill, a better system for the extremely important issue of judicial appointments. The provisions included in the Bill are inadequate and unsatisfactory.

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The Constitutional Reform Act 2005 was of great importance. It modified the functions of the Lord Chancellor. In fact, it not only modified the functions but completely altered them. It created a Supreme Court to replace the jurisdiction of the House of Lords. The constitutional importance of the Act was recognised by those who negotiated it and by many others. I am well aware of this because I was one of the Members of the House of Lords who negotiated the matter in detail. Others included the noble and learned Lord, Lord Falconer of Thoroton, who I am very pleased to see in his place and who was then the Lord Chancellor, and the late and greatly missed Conservative Lord Kingsland.

As far as I am aware, the Crime and Courts Bill is the first Bill to make significant amendments to the Constitutional Reform Act. Significant amendments appear first in Clause 18—although all that the clause does is tell us to go and look at Schedule 12, which is tucked away at the back of the Bill. It starts on page 167 and continues to page 201. It starts with the provision that enables any number of judges to be appointed to the Supreme Court provided the judges serving on the court do not permit,

“the full-time equivalent number of judges of the Court at any time to be more than 12”.

This is a very significant alteration to the 2005 Act. There should be no attempt to tuck alterations into the back of a much wider Bill such as this one. It is highly doubtful whether this particular alteration should be adopted at any time, and I agree with the proposal from the noble and learned Lord, Lord Lloyd of Berwick, to leave out paragraph 2.

7 pm

Section 26 of the 2005 Act is amended considerably in Schedule 12. Section 27 of the Act is also amended considerably by paragraphs 1 and 2 of Schedule 12. So it goes on for another 32 pages before we come to the end of Schedule 12. Schedule 12 is much too important to be stuck in as a long schedule, close to the end of Clause 18. Not everything in Schedule 12 is wrong, but the contents are important and should be rewritten and transferred into a separate Bill. Schedule 12, and the minimal Clause 18 that introduces it, raises important issues that need to be considered much more thoroughly and in a different Bill. This is too important a matter to be left as it now is.

I was unable to attend the Bill’s Second Reading but a number of other noble Lords spoke in a way that I support to a greater or, in some cases, lesser extent. Those whom I support include the noble Baroness, Lady Jay of Paddington, at col. 993 of Hansard; the noble and learned Lord, Lord Lloyd of Berwick, whom we have already heard speaking, at cols. 996-997; and the noble and learned Lord, Lord Woolf, at cols. 1041 to 1044. However, those whom I draw most attention to are the noble Baroness, Lady Neuberger, at cols. 1016 to 1018 and the noble Baroness, Lady Prashar, at cols. 1024 and 1025. I would refer particularly to a passage from the noble Baroness, Lady Neuberger, except that she is here tonight and I hope that she will explain and put forward her views on this matter herself. I am in total agreement with what she said.

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If the Government had been willing and able to pay attention to those objections before Committee stage, it might have been possible to reconsider them then. It is plainly not possible now. The rest of the Bill should of course proceed but Clause 18 and Schedule 12 should be put aside and replaced by a new Bill. Since I introduced my proposal that Clause 18 and Schedule 12 should be removed entirely from the Bill there have been a number of additional amendments to remove parts of them and to add some new parts. I welcome these changes, which would improve the Bill considerably. It remains my view that it would be better to take Clause 18 and Schedule 12 out of the Bill, because they involve some important constitutional changes. However, I have to face the fact that a good deal of work has already been put into Schedule 12 on both sides. In this case, I would be willing not to proceed with my proposal provided it is acknowledged that Clause 18 and Schedule 12 should be replaced by another Bill. Schedule 12 contains some important constitutional changes and it should be recognised that constitutional changes must be clearly identified and justified by those seeking to enact them.

I would be happy if Clause 18 and Schedule 12 went ahead provided that it was done with a reasonable degree of agreement between the parties. I would much prefer it if they went into another Bill, but it is even more important to make clear on this occasion that this has, to some degree, been a mistake. It is necessary to remember that in the future for different issues when we get important matters mixed up with matters which are much less important, as here. I would be willing to support the Bill—I am not saying what provisions I myself would put in it—but we must recognise that something of this kind should not be allowed to happen again and that provisions that make important changes in the constitution should be handled differently.

Baroness Jay of Paddington: My Lords, the Minister will undoubtedly reply to the broad-brush criticisms that the noble Lord, Lord Goodhart, has raised. I will just say, on one of his points, that the noble Lord, Lord McNally, and the Secretary of State, Mr Clarke, have been very kind in attending to the Constitution Committee since Second Reading. We have specifically discussed Clause 18 and Schedule 12 with them both, and I must put on record that their dialogue with the Constitution Committee at least has been productive.

I briefly return to the amendment of the noble and learned Lord, Lord Lloyd. Of course, I defer to him, his judicial colleagues and other noble Lords in their experience in the courts, but I would pick up the point made by the noble Baroness, Lady Falkner, about them addressing the issue of part-time working—or as I would more easily describe it, flexible working—in a perhaps somewhat narrow and therefore slightly more difficult way. The noble and learned Lords, Lord Woolf and Lord Carswell, gave evidence to the Constitution Committee during our inquiry into this matter. They said many of the things that they have said tonight and many more things as well. I hear precisely the issues that have been raised about the practical problems. As the debate has widened slightly into the general issue of diversity and appointments

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generally to the judiciary—which was why I asked my earlier questions to the noble and learned Lord, Lord Lloyd, about which particular aspect he was concerned with—it may be of interest to the Committee if I quote from the Lord Chief Justice. In evidence to us, he said that,

“we should be able to organise the sitting patterns for female High Court judges or male High Court judges who have caring responsibilities, so that during, for example, half term”—

which was just one example they gave—

“they can be at home ... I think those sorts of very small changes … will help”.

I want the Committee to understand that there is not a uniformity of views among the senior judiciary, both past and present, about the absolute impossibility of trying to be more flexible in this way.

I also say, with some deference and temerity, that I wonder whether noble Lords and senior judges are perhaps looking exclusively at their profession and not looking more broadly at the ways in which other professions have adapted to flexible working over the past decade. I raised very briefly at Second Reading the example of the medical profession, which has had very entrenched working practices at the senior level, particularly in the surgical specialty, and has now adopted flexible working in a way that met with many of the same problems in theory as have been raised this evening and on other occasions about flexible working within the judiciary. The situation is, of course, different but some of the issues in principle were the same. The adaptation has worked, so that senior members of the medical profession are now much more broadly spread between the genders and there is a much greater sense of genuine diversity.

In this instance, perhaps I may refer the Committee to the evidence of the chairman of the Judicial Appointments Commission, who said to the Constitution Committee:

“This is the first profession that I have touched in my working life where there is not easy access to flexible working arrangements for senior positions. Having salaried part-time working in the High Court would be transformational”.

As I say, I speak with some deference on these matters, but it is worth the Committee hearing the views both of the chairman of the Judicial Appointments Commission and the Lord Chief Justice.

Baroness Butler-Sloss: My Lords, I am sorry that yet another former senior judge is speaking. I recognise entirely the advantages of flexibility, but in this area there is a limit, and I want to say a few words about it. As a woman, I strongly support diversity on the Bench, particularly having been one of the earliest women judges. I also support encouraging those who leave either side of the legal profession in their thirties and forties for family reasons, very often to bring up young children, so that they can come back and sit on the Bench at a suitable level. To sit part time as a district judge or the judge of a tribunal is an excellent way of wooing back those who we would otherwise lose, to the detriment of the administration of justice. They are an obvious pool for promotion to more senior judicial posts. However, the point comes on the ladder to senior positions when a part-time

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judge inevitably will be less useful, and there would be some serious objections and disadvantages to part-time sitting.

I can see that it could be difficult for many centres where circuit judges try long and difficult cases, but it would be even more difficult for High Court judges and above. Perhaps I may give two examples. High Court judges, of which I was one for several years, often try—as one would expect—long and complicated cases that last for weeks, months or, occasionally, years. Listing officers would have real difficulties in listing cases if there were part-time judges. Further, as the noble Lord, Lord Thomas of Gresford, has already pointed out, High Court judges go out on circuit for six weeks or sometimes longer. They are a long way from home and return only at the weekends. As a High Court judge I went out on circuit and I can tell noble Lords that, as the mother of a teenager and two younger children, doing so was not easy. However, it is manageable. I felt that otherwise I could not be a High Court judge.

This leads to the second disadvantage. If there are part-time judges at the highest levels, the full-time judges in heavy cases would be likely to bear the heavier burdens. They would try the longer cases. That is because if there is to be any flexibility at all, and a case is going to last for six to nine months, it is unlikely that someone who wants to sit part time would actually be able to take it. That is particularly the case when going on circuit and there is a long case that may take the whole term. How on earth is someone who would prefer to work part time going to leave the family to take a long case? That would be certain to produce a certain degree of resentment among colleagues, who would be expected to take those cases because the part-time judge really could not take on the burden.

In the Court of Appeal, where I also sat, and in particular the Supreme Court, where I did not sit—and they are the purpose of these amendments—the idea of part-time sitting seems very difficult to achieve. How would it work in practice? However, most judges in the Court of Appeal and, perhaps I may say, even more so in the Supreme Court, are older. If candidates wanted the job at that stage of their lives, they would be able to give a full-time commitment, having given a part-time commitment when they were younger and had children to care for. I have to say that by the time I was in the Court of Appeal my children could manage on their own and I had to go home and worry less often about what they were doing—slightly less often since, as a mother, one does not ever stop worrying about one’s children. I cannot understand, therefore, why those who start out as part-time judges at a lower level and who are clearly high performers and ought to rise up the ladder, as I went up having started as a district judge, cannot, when they are older, take on the full-time commitment that they were unable to bear when they were younger and had responsibilities for children.

I have to say also that if these clauses are intended as a gesture to underline the undoubted importance of diversity, and are not intended to be reapplied in the higher courts, I would not be too worried. If, however, as I fear, the Judicial Appointments Commission feels

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that it is its duty to try to apply these clauses when and if they become law, feeling that it will be criticised if it does not do so, that will be very difficult to achieve. If it is achieved by the commission, I believe that it would create major problems. We have to think again about this. I really do not understand why older women, having got over the problems that required them to work part time, could not take on a full-time commitment in the Court of Appeal and the Supreme Court.

7.15 pm

Lord Pannick: My Lords, I find this a much more difficult issue than some noble Lords who have spoken. The noble and learned Lord, Lord Lloyd of Berwick, emphasised that we all agree about the importance of diversity, and the noble and learned Lord, Lord Woolf, emphasised his personal commitment to diversity, which I am aware of and, of course, I recognise. The noble and learned Lord, Lord Lloyd, referred to the statistics and said correctly that some progress has been made, but the position is still woefully inadequate. Some 16% of High Court judges and only 11% of Court of Appeal judges are women. These figures are simply unsatisfactory and urgent progress is desperately required.