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Baroness Cumberlege: My Lords, the noble Lord will be aware that that was precisely why we contested the case. We felt that the arrangements were outside the scope of the EC directive. However, the Court ruled otherwise. We accepted that ruling and took immediate steps to implement it.

Lord Boyd-Carpenter: My Lords, is my noble friend aware that the acceptance of the ruling involves acceptance of the European Court being able to decide rates of benefit in our social security system in this country? If that is really my noble friend's view of the state of the arrangements, is it not time that they were altered?

Baroness Cumberlege: My Lords, we have to comply with the European Court ruling.

Lord Boyd-Carpenter: Why?

Baroness Cumberlege: My Lords, we cannot renege on the original commitments that we made when we signed the declaration joining the European Union. The Court has ruled that way. As I said, we contested it and fought a hard battle. However, the Court did not find in our favour. As we comply with the law, we have accepted the ruling and have taken immediate steps to implement it.

The Countess of Mar: My Lords, is the noble Baroness aware that there is a great deal of dissatisfaction from patients, the medical profession and the pharmaceutical profession about the way in which prescription charges are levied? Many of them consider that there are people over the age of 60 who could well afford to pay for their prescriptions. Is the Department of Health reviewing the matter? That may be a way of getting round the problem.

Baroness Cumberlege: My Lords, we reviewed prescription charges in 1993. At that time we decided not to alter the categories of exemption. I think that it is very unlikely that we would review them again.

Baroness Elles: My Lords, does my noble friend agree that it was honouring the principle of equal treatment for men and women that led us down the path which has been agreed in the treaty? The British Government decided that, in fairness to women, rather than increasing the age at which women have to pay for

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prescription charges to 65, it should be brought down to 60 for men. It was a decision by the British Government in order to promote more fairness.

Baroness Cumberlege: My Lords, my noble friend is absolutely right. I am sure that the men in this country should rejoice in our decision.

Baroness Jay of Paddington: My Lords, the overall concerns about rising prescription costs surely have more to do with the fact that the Government are not doing enough to achieve effective prescribing by doctors. Does the Minister recall the National Audit Commission's report which stated that over £400 million could be saved if the Government were to encourage general practitioners to achieve more effective prescribing?

Baroness Cumberlege: My Lords, I am sure the noble Baroness is right that there are doctors who could prescribe more effectively. However, it is interesting to note that those doctors who became fund-holders after the NHS reforms which we introduced have been shown to be more effective prescribers.

Lord Stoddart of Swindon: My Lords, is the noble Baroness aware that this issue is far more important than whether there should be equality of treatment between men and women on prescription charges? The important issue is whether the European Court of Justice should be able to impose on the House of Commons the necessity to raise tax without the House of Commons having first being told.

Baroness Cumberlege: My Lords, I am very aware that that is the view of some Members of your Lordships' House. But as my noble friend Lady Elles said, we have signed up to the Treaty of Rome; and it is quite right that we should comply with decisions of the European Court.

Lord Skelmersdale: My Lords, would this case ever have arisen if the Labour Government had bitten the bullet as regards equalisation of pension ages?

Baroness Cumberlege: My Lords, I doubt it.

The Magistracy: Indemnification against Costs

2.52 p.m.

Viscount Tenby asked Her Majesty's Government:

    Whether they are yet in a position to offer indemnity to lay magistrates in the event of a successful appeal for costs by a defendant.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, Section 53 of the Justices of the Peace Act 1979 already provides for a magistrate to be indemnified against costs orders. A magistrate is entitled to indemnity provided he or she acted reasonably and in good faith.

Viscount Tenby: My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply, which

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will be partly reassuring to the magistracy. However, is he aware that there is considerable anxiety within that service because of the danger that magistrates may be taken to appeal and have damages found against them? Some magistrates are talking of resigning from the service. As this problem has been in existence for some years, will he undertake as a matter of some urgency to bring forward a solution which will be equitable with others in the legal service?

The Lord Chancellor: My Lords, as I said, justices of the peace already have immunity in certain matters. They have an indemnity in respect of costs, as I have just explained. They have immunity against actions arising from matters within their jurisdiction. That immunity is complete. They also have immunity in matters outside their jurisdiction, except where it is proved that the magistrate acted in bad faith.

I think that magistrates are currently concerned that Section 53 provides an indemnity only against costs. They are anxious to go further and to have immunity against costs. That obviously would involve primary legislation. However, as the noble Viscount indicated, it has ramifications for other members of the judiciary. I hope that we may be able to do something in this area. Obviously consultation would have to precede anything that we did. I am hoping that we might be able to go so far as a consultation at least by the middle of the year.

Lord Ackner: My Lords, does my noble and learned friend agree that the main concern of the magistrates is that they do not qualify for the indemnity unless they establish not only that they acted in good faith, but that they acted reasonably--an obligation which does not apply to the rest of the judiciary?

Is it not the view of my noble and learned friend and his department that the immunity should be provided unless the justices of the peace acted in bad faith? If that were so, and as that would require legislation, would my noble and learned friend confirm that if I were to put down the appropriate amendment to the Criminal Procedure and Investigations Bill the Government would support it?

The Lord Chancellor: My Lords, as I indicated, there is a distinction between indemnity in respect of costs and immunity in respect of actions. Immunity obtains in respect of actions so long as the justice acts in good faith, or at least is not proved to have acted in bad faith.

The situation is different in respect of costs arising incidentally in applications which are not actions against the magistrates. There the position of the judiciary as a whole varies. It is not uniform. I believe that it would be premature to seek to legislate on this matter in a statute or a Bill concerned only with criminal procedure when there are many ramifications of such a change in the law which should properly be taken into account. I should prefer to have a full consultation on this matter before steps were taken to alter the legislation.

Lord Mottistone: My Lords, can my noble and learned friend possibly hurry up the consultations? I believe that he referred to the middle of the year. It is

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a matter of great urgency. The point that the noble Viscount, Lord Tenby, made about magistrates now seeking to resign is most unwelcome. Perhaps an impression could be given that the Government will not waste any time in getting on with the consultation. Can my noble and learned friend give us that assurance?

The Lord Chancellor: My Lords, I would find it most unwelcome if magistrates were seeking to resign on this ground. It is quite clear that there is no real basis for any fear which would require them to do so. As I say, the law already provides for a magistrate to be indemnified against costs orders so long as he or she acted reasonably and in good faith. That is a pretty secure type of indemnity. However, as I said, I am anxious to do my best to deal with the concerns expressed by the magistrates. I believe that a consultation which has to affect not only the magistrates but other members of the judiciary requires to be fairly thorough. Therefore, to produce a paper by the middle of the year which covers all those aspects is going forward as fast as the nature of the subject matter requires.

Lord Allen of Abbeydale: My Lords, is it right to say that, if a magistrate is sitting with a judge at a Crown Court, the salaried judge can be confident of immunity from a possible claim for damages whereas the unpaid magistrate cannot? Do not such anomalies undermine the need for urgency and the hope that the consultations will result in an early solution, given that there seems to be an increase in the number of claims for damages?


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