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Standing Committee D
Thursday 26 June 2003
(Afternoon)
[Mr. Eric Illsley in the Chair]
Clause 2
Court officers, staff and services
Amendment proposed [this day]: No. 110, in
clause 2, page 2, line 29, leave out 'and'.—[Mr. Heath.]
2.30 pm
The Chairman: I remind the Committee that with this we are taking amendment No. 111, in
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): I welcome you to the Chair, Mr. Illsley. I said to Mr. O'Brien at the beginning of our proceedings this morning that it was nice to have a fair-minded and even-tempered Yorkshireman in the Chair. The same comments apply twice over.
Under the amendments tabled by the hon. Member for Somerton and Frome (Mr. Heath), the Lord Chancellor would consult persons who seem to him to be representative of the lay justices, as well as the heads of division already listed under subsection (7), before making an order to contract out under subsection (6). We consider the amendments to be unnecessary as the heads of division will be the heads of the judicial family to which the magistrates already belong. The purpose of consulting the heads of division is to ensure that no judicial function has unwittingly been prepared for contracting out and, thus, transgresses the safeguard under subsection (5). In that respect, I expect the heads of division to have regard to all of the interests of the judiciary, including the lay magistracy, when undertaking such a role.
The four senior judges are consulted to ensure that the contracting out does not, in principle, involve a judicial function prohibited by the prevention under subsection (5). They are the right people to consult, not the local board or the local magistracy. If we were to have local consultation, it would be unclear what is meant by ''representatives of the lay justices'' under the amendment. The hon. Member for Wycombe (Mr. Goodman) highlighted that fact in his intervention. We presume that it means representatives of the Magistrates Association, but the phrase raises questions about how such a system would work, who would be the representatives, how many should there be and so on. The lack of clarify is also the reason why I am not keen to accept the amendment.
In response to my hon. Friend the Member for Wirral, West (Stephen Hesford) who referred to local business plans and local proposals for specific contracting out, courts boards will be involved in the
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business planning process. Indeed, the protection under clause 21 concerning the duty to consult lay justices on matters affecting them will also kick in at that point. There is ample protection at local level. Setting out the difference between why we have wider, in principle, consultation about ensuring that judicial functions do not come under the contracting-out capability helps to clarify why we have framed the provisions in such a way. I hope that the hon. Member for Somerton and Frome will see fit to withdraw the amendment.
Mr. David Heath (Somerton and Frome): I welcome you to the Chair, Mr. Illsley. I am grateful to the Minister for his response. Were the consultation under subsection (7) purely on the basis of ensuring that the contracts did not transgress subsection (5)—that was what the Minister said—and to make sure that no judicial function is unwittingly put into the contract area, that would have been a proper response. However, the actual words under subsection (7) are
''what effect (if any) the order might have on the proper and efficient administration of justice'',
which go much wider than the narrow criterion whether a judicial function has been put into the contracted-out area. I suggest that the Minister reconsiders his definitions.
I was genuinely surprised by what the Minister had to say about the wording of my amendment. I know for a fact that such formulations have been tabled by Ministers of this Government to a great number of Bills to express a provision that would allow for representation from associations, such as the Magistrates Association, but without listing specific organisations, as the provision would become redundant if the associations changed. Perhaps the Minister has been given unwise advice if he thinks that my amendment is in an inappropriate or vague formulation. It has been used before. The hon. Member for Clwyd, West (Gareth Thomas) will recall the many happy hours that we spent on the Countryside and Rights of Way Bill Committee, when a similar formulation appeared many times to provide for statutory consultees who appeared to the Secretary of State to be representative of this, that or the other.
I hear what the Minister says, but I still think that before contracting out essential support services and administrative functions it is wise to have the views of magistrates directly, rather than simply the advice of a senior judge who is not a magistrate—he might be capable of giving a professional opinion, but not a practical one. In practice, the views of magistrates will probably be heard, but I regret that a provision for that will not exist in statute. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3
Provision of accommodation
Mr. Leslie: I beg to move amendment No. 18, in
clause 3, page 2, line 40, leave out 'shall' and insert 'may'.
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This amendment has been tabled to dispel the uncertainty created by an Opposition amendment that was successful in the other place. We hope that it will remove problems about interpretation.
During Committee stage in the other place on 28 January, Baroness Anelay tabled a successful amendment to clause 3. The aim of the amendment was to make it clear that the Lord Chancellor should be under a duty to provide, equip, maintain and manage such courthouses, offices and other accommodation as appear to him appropriate. The amendment therefore changed the wording from ''may provide'' to ''shall provide''. Baroness Anelay was concerned that the Lord Chancellor should not have discretion to choose to make no provision. I think that that is a fair summary of the rationale behind her amendment.
I fully understand the noble Lady's concerns about interpretation and not leaving unnecessary lacunas in the Bill. Nevertheless, we want to reverse her amendment at this stage, as we feel that the Bill makes it clear that the Lord Chancellor is already under the necessary duty, and I shall explain why. Primarily, clause 1(1) states that the Lord Chancellor has to provide an efficient and effective court system; that is his general duty. We are worried that the wording of the Opposition amendment could create uncertainty about the relationship between clause 3(1) and clause 3(2). If the Lord Chancellor, by virtue of clause 3(1), were under a duty to provide, equip, maintain and manage such courthouses himself, how could any contracting out take place under the subsequent subsection? The amendment would produce dubious wording in the Bill, so it needs clarifying.
The uncertainty is greater still, given that there is at present a mismatch between the words of clause 2, which still states ''may appoint'', and clause 3, which now states ''shall provide''. They were formerly constructed in a similar way. We feel that, in addition to those reasons, some potential problems of interpretation would remain. That particular phraseology needs to be altered and we should leave out ''shall'' and insert the word ''may''. I hope that the Committee can see the benefits of the amendment.
Mr. Nick Hawkins (Surrey Heath): I add my welcome to your chairmanship of the proceedings this afternoon, Mr. Illsley.
I am slightly disappointed that the Government have not accepted one of the mini triumphs of my noble Friend Baroness Anelay of St. Johns in another place. Having considered the matter, I do not propose to resist amendment No. 18 this afternoon. The Minister sent me a helpful letter and the Under-Secretary of State, Lord Filkin, sent a not dissimilar one to my noble Friend the Baroness Anelay, explaining the basis of the Government's thinking.
The Minister has explained why Baroness Anelay put forward such a proposal and she was able to persuade sufficient noble Lords and Ladies to inflict defeat on the Government. However, it is useful to
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have had it stated on the record this afternoon that the firm duty—which was what our amendment was seeking to achieve—is acknowledged by the Minister.
When I read Lord Filkin's letter to my noble friend Baroness Anelay, it seemed that what Ministers were being told was coming from parliamentary counsel. If the word had been changed and allowed to remain, parliamentary counsel was worried that there might be some confusion. As the hon. Member for Somerton and Frome will be aware, we had some of those concerns expressed by parliamentary counsel on the Crime (International Co-operation) Bill that we finished in Committee last week. I said on that occasion that sometimes parliamentary drafting as an arcane skill is rather different from the way in which Acts are read by ordinary people.
Nevertheless, we do not want to have any confusion. While we preferred our wording of the amendment that was passed in another place, we do not want to undermine the basis of what the Minister has said, which acknowledges that there is a clear duty on the part of the Lord Chancellor. Given that the hon. Gentleman said that on the record, it will be recorded in Hansard, so it lays to rest our worries about clause 3 as originally drafted.
In the light of the Minister's helpful reassurances both in his letters and in what he has said this afternoon, I shall not pursue the matter further or press it to a Division. We accept that on this occasion—although not on many others—the Government can reverse what was done in another place.
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