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Division No. 3


Ackner, L.
Acton, L.
Addington, L.
Airedale, L.
Archer of Sandwell, L.
Attlee, E.
Barnett, L.
Berkeley, L.
Birk, B.
Borrie, L.
Bridge of Harwich, L. [Teller.] Broadbridge, L.
Callaghan of Cardiff, L.
Campbell of Alloway, L. [Teller.] Carter, L.
Castle of Blackburn, B.
Charteris of Amisfield, L.
Cledwyn of Penrhos, L.
Cocks of Hartcliffe, L.
Craig of Radley, L.
Craigavon, V.
Dahrendorf, L.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dormand of Easington, L.
Dubs, L.
Falkender, B.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Freyberg, L.
Geraint, L.
Gladwin of Clee, L.
Graham of Edmonton, L.
Halsbury, E.
Hamwee, B.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hylton-Foster, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Kilbracken, L.
Kirkhill, L.
Lawrence, L.
Listowel, E.
Lockwood, B.
McCarthy, L.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mishcon, L.
Molloy, L.
Murray of Epping Forest, L.
Napier and Ettrick, L.
Nicol, B.
Palmer, L.
Perry of Walton, L.
Rea, L.
Richard, L.
Rodgers of Quarry Bank, L.
Sefton of Garston, L.
Shepherd, L.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Gryfe, L.
Templeman, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Waverley, V.
Weatherill, L.
Wedderburn of Charlton, L.
Whaddon, L.
White, B.
Wilberforce, L.
Williams of Elvel, L.
Williams of Mostyn, L.


Addison, V.
Aldington, L.
Alexander of Tunis, E.
Ampthill, L.
Archer of Weston-Super-Mare, L.
Astor of Hever, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Boyd-Carpenter, L.
Braine of Wheatley, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Burnham, L.
Cadman, L.
Caithness, E.
Campbell of Croy, L.
Carnock, L.
Chesham, L. [Teller.] Clanwilliam, E.
Clark of Kempston, L.
Courtown, E.
Craigmyle, L.
Cranborne, V. [Lord Privy Seal.] Cumberlege, B.
Dean of Harptree, L.
Elles, B.
Ferrers, E.
Fraser of Carmyllie, L.
Geddes, L.
Gilmour of Craigmillar, L.
Goschen, V.
Hanson, L.
Harmsworth, L.
Henley, L.
Hertford, M.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Howe, E.
Inglewood, L.
Jenkin of Roding, L.
Kenilworth, L.
Kimball, L.
Lane of Horsell, L.
Lindsey and Abingdon, E.
Long, V.
Lucas, L. [Teller.] Lucas of Chilworth, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Massereene and Ferrard, V.
Melville, V.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monteagle of Brandon, L.
Mountevans, L.
Murton of Lindisfarne, L.
Northesk, E.
Norton, L.
O'Cathain, B.
Orkney, E.
Oxfuird, V.
Pender, L.
Rankeillour, L.
Reay, L.
Rennell, L.
Selsdon, L.
Shaw of Northstead, L.
Shrewsbury, E.
Sudeley, L.
Swinton, E.
Thomas of Gwydir, L.
Trumpington, B.
Tugendhat, L.
Vivian, L.
Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

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6.31 p.m.

Clause 30 [Restrictions on reporting]:

Baroness Blatch moved Amendment No. 85:

Page 17, line 41, leave out ("or").

The noble Baroness said: My Lords, as drafted, Clause 30 permits the reporting of a preparatory hearing once the trial for all the defendants in the case has been concluded. The three amendments in this group will extend this provision so that an application for leave to appeal, or an appeal, in relation to a preparatory hearing may also be reported once the trial for all the defendants has been concluded. The first amendment is a consequential drafting amendment, arising from the two substantive amendments. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 86 and 87:

Page 17, line 41, at end insert--
("(aa) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,").
Page 17, line 43, at end insert ("or
(c) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,").

On Question, amendments agreed to.

Clause 32 [Meaning of pre-trial hearing]:

Baroness Blatch moved Amendments Nos. 88 and 89:

Page 19, line 5, leave out from first ("a") to ("takes") in line 6 and insert ("hearing is a pre-trial hearing if it relates to a trial on indictment and it").
Page 19, line 9, at end insert--
("(1A) For the purposes of this Part a hearing is also a pre-trial hearing if--
(a) it relates to a trial on indictment to be held in pursuance of a bill of indictment preferred under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge), and

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(b) it takes place after the bill of indictment has been preferred and before the start of the trial.").

The noble Baroness said: My Lords, these amendments were considered with Amendment No. 2. I beg to move them en bloc.

On Question, amendments agreed to.

Lord Ackner moved Amendment No. 90:

Before Clause 37, insert the following new clause--

Indemnification of justices and justices' clerks

(".--(1) Section 53 of the Justices of the Peace Act 1979 (Indemnification of justices and justices clerks) is amended as follows.
(2) In subsection (1)--
(a) after "may" insert "and shall, in the exercise of any criminal jurisdiction,"; and
(b) at the end, insert "or, in the exercise of any criminal jurisdiction, unless it is proved, in respect of the matters giving rise to the proceedings or claims, he aced in bad faith".").

The noble and learned Lord said: My Lords, I do not think that we fully acknowledge the service given to the administration of justice by justices' clerks and by justices of the peace. Justices of the peace dispose of over 90 per cent. of all criminal prosecutions. They do so in their own spare time. They do so without payment and wholly voluntarily. How then do we seek to show our gratitude? Certainly not by making them, as we have, liable personally to pay the costs of successful appeals. I know of no such liability being imposed upon professional judges. I believe that I have enjoyed immunity from my days of assistant recorder onwards.

The basis for the liability is to be found in Section 53 of the Justices of the Peace Act 1979. Omitting unnecessary language for the purpose of this particular matter, that section provides as follows:

    "Subject to the provisions of this section ... a justice of the peace or justices' clerk may be indemnified out of local funds in respect of ...

    (b) ... costs ordered to be paid by him in any such proceedings ...

    and shall be entitled to be so indemnified if, in respect of the matters giving rise to the proceedings or claim, he acted reasonably and in good faith".
Therefore, two hurdles have to be jumped: acting reasonably and in good faith.

My amendment seeks to alter the statute by providing that justices and their clerks shall, in the exercise of any criminal jurisdiction, be entitled to be indemnified unless it is proved in respect of the matters giving rise to the proceedings or claims that they acted in bad faith. That does not take away the total risk of the liability for costs; it keeps it there if the justices acted in bad faith or if it is so proved.

The information that I have received from the Justices' Clerks' Society includes the following observations: first, that the reimbursement to which the section refers is not automatic. An application has to be made to the magistrates' courts committee for indemnification in accordance with the Section 53 provisions. The indemnification is only in respect of

5 Feb 1996 : Column 64

costs reasonably incurred and is obligatory only if the justices of the peace or the justices' clerk acted reasonably and in good faith.

What is "reasonable" may be a matter of dispute, more easily determined with the benefit of hindsight. I assume that the test is objective, but it might be contended that in all fairness it should be subjective. If the justice believed that he was acting reasonably, why should there be an objective test? Even though indemnification is obligatory, the magistrates' courts committee may have no funds remaining available--they are heavily strapped for cash--so that is a situation that can occur. In such a case, an application for further funds would either have to be made to the Lord Chancellor's Department or to the local authority for supplementary payments. Those parties may be unable, or even unwilling, to help. The local authority could be the body entitled to the cost, the subject matter of the award, and be in the invidious position of having to agree to reimburse or to refuse to reimburse costs due to itself. I am informed that at least one instance has been traced, some years ago, of a magistrate being left to bear the costs personally. I am told that there have been other such instances. Magistrates have expressed fears concerning bankruptcy and at least one has resigned because of her concern. I have thus been instructed by the Justices' Clerks' Society.

I shall not weary your Lordships with statistics of any size, but I can inform the House that during the period 1st January 1994 to 1st November 1995, of the response, 10 court areas--that is 8 per cent.--not including inner London which has a separate organisation, for which the clerks were responsible, had had orders for costs made against them. There are indications that at least 18 courts--that is, 15 per cent.--again excluding Inner London, have applications pending where costs against them may be sought.

Some of your Lordships may have been in the Chamber on 15th January when the noble Viscount, Lord Tenby, stimulated I believe by an order for costs in the sum of £2,000 made against his own Bench but not against himself, tabled a Starred Question. The noble Viscount had prepared a speech for today but rang me up shortly before lunch saying that he had been prevented from coming. The Question that he raised was as follows:

    "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 reply given by my noble and learned friend the Lord Chancellor read:

    "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".
That reply astonished both the noble Viscount and myself because it had no note of urgency about it; no suggestion of criticism of the present situation.

The reason for our astonishment was in each case the same: we had been provided with a copy of a letter dated 19th December, written only a few weeks before that reply, from Mr. Jonathan Evans MP, the Parliamentary Under-Secretary in the Lord Chancellor's Department

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addressed to Mrs. R.E.R. Thomson, chairman of the council of the Magistrates' Association. Some days ago I provided a copy of that letter to the Minister. I read, selectively, two or three short passages from it. It starts by saying:

    "The Lord Chancellor has asked me, amongst other tasks he has assigned to me on my arrival here, urgently to resolve this issue".
He then goes on to refer to the immunity against actions for damages which was achieved by the medium of the Courts and Legal Services Act 1990. He states:

    "However, it has since become apparent from recent case law that costs orders can and are being made against Justices in case stated or judicial review proceedings in a different range of circumstances. Whilst that case law indicates that this should happen in only exceptional circumstances, I understand your concerns both at the principle and at the uncertainty thereby created, particularly as there appears already to be an increasing number of cases in which costs orders will be sought".

The other parts I want to quote are on the second page of the letter. They are:

    "I am sympathetic towards the arguments which have been put and am committed to finding a solution. My current provisional view is that it would be appropriate to provide immunity unless the Justice acted in bad faith. This would require legislation".
That is precisely what I have set out to do, with the one difference--I am limited to providing this immunity from costs in criminal cases only, because this is a criminal procedure Bill and I am not entitled to go outside it.

I shall return to the way in which the Starred Question proceeded. Having recovered somewhat from his surprise, the noble Viscount said:

    "My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply, which 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?".
He means costs. He continued:

    "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?".
In the course of his reply, my noble and learned friend the Lord Chancellor said:

    "I think that magistrates are currently concerned that Section 53 provides an indemnity only against costs".
I am not sure how that comes about. He continued:

    "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".
Again, that absence of any note of urgency was picked up immediately by the noble Lord, Lord Mottistone, who said:

    "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 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?".

My noble and learned friend the Lord Chancellor said:

    "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".

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I find that incomprehensible. I have already indicated orders which have been made, to the liability which exists, and the concern that was recorded in his own Parliamentary Under-Secretary's letter written four weeks earlier. He goes on to say:

    "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".--[Official Report, 15/1/96; cols. 359-61.]

The contrast between that reply and the letter written four weeks previously was so marked that I thought that it was only right to put down this amendment so that the House could see the strange contrast between the written answer coming from the Parliamentary Under-Secretary and the verbal answer given to the House when the Question was put. As I informed your Lordships, I provided a copy of that letter some weeks ago to the noble Baroness and she was kind enough to write to me. In her letter of 1st February she said:

    "As you will know the Lord Chancellor has said that he will address the question of immunity against costs orders as a matter of urgency. However, as anything which is done in respect of justices and justices' clerks would have ramifications for other judicial post holders he believes that, before moving to legislation, it would be wise to consult. As you know he has said that he would hope to issue a paper later this year.

    "As this, and any legislation change which follows, will take time the Lord Chancellor is also looking at ways in which the arrangements for providing indemnity under the provisions of section 53 can be improved. This will give those affected greater confidence that the existing statutory protections will work until a longer term solution can be found".
That is precisely what I have sought to do in this amendment.

The penultimate paragraph of the letter states:

    "Your amendment, while it seeks to strengthen indemnity, does not address the question of immunity".
I pause there merely to ask why it should. One is endeavouring to deal with the liability for costs on the basis that the justices have not acted reasonably. It is that which gives them the sense of insecurity. I have not sought to cure the danger arising out of bad faith. I have sought to do precisely what the Parliamentary Secretary to the Lord Chancellor's Department seemed to agree with; namely, to remove that liability on the grounds of acting unreasonably, whatever that may mean in the circumstances.

The letter goes on:

    "And it would restrict additional protection to matters arising from criminal cases".
That is not my fault. Initially I sought to extend this to both criminal and civil proceedings but I was naturally called to order. The letter goes on:

    "The Lord Chancellor's proposals are aimed at providing more comprehensive protection".

I am delighted to hear it, but while he is consulting and arranging for that more comprehensive protection, why should not the justices and their clerks have the very simple protection of no longer being under any liability on the basis that they have acted unreasonably?

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My proposals will provide non-contentious and much-needed interim protection while the leisurely process to which I have referred takes it course. I beg to move.

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