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Lord Rodgers of Quarry Bank: My Lords, I chose to associate my name with the amendment moved by the noble and learned Lord, Lord Ackner, very much for the reasons which he has already explained to the House and in my case in particular, in view of the exchanges which took place on 15th January to which the noble and learned Lord referred.

I confess that this was a new issue to me but I felt then that the replies were wholly unsatisfactory. Indeed, the two sentences in the remarks of the noble and learned Lord the Lord Chancellor that struck me were, first, that it was not a new problem which had arisen overnight; and secondly, that it required considerable examination in depth before Parliament would be invited to bring forward solutions.

It seems to me that if it is not a new problem but one which has been in the responsibility of government for some while--and that view is very much strengthened by the letter from the Parliamentary Secretary of 19th December to which the noble and learned Lord, Lord Ackner, referred--I cannot understand why it is only at this late hour that it requires considerable examination in depth. Having already attracted the attention of the Government, I would have assumed that it was something to which thought had been given. Therefore, coupled with the very leisurely proposals which the noble and learned Lord the Lord Chancellor then seemed to make, it seemed right to take an opportunity in the course of discussions on this Bill to resolve the matter.

Nothing that I have heard today, seen in the correspondence or noted in the exchanges which took place on 15th January convinced me that an examination in depth is required. It seems to me that it is clear that there needs to be a willingness to correct the problem and the courage to make the necessary decisions. That being so, if those decisions cannot be made today on the hoof by the Minister, I do not see why she cannot consider an amendment which may be available at a later stage.

Lord McIntosh of Haringey: My Lords, if indemnities are good enough for the judges who are paid, they are good enough for magistrates who are not paid.

Baroness Blatch: My Lords, this amendment would bring the test of whether indemnity (that is, an arrangement to make good a loss suffered by a party) should be given to justices (and justices' clerks) in line with the test for immunity (that is, freedom or exemption from legal proceedings) in respect of actions arising from matters outside a magistrate's jurisdiction. It would require bad faith to be proved.

Although the amendment proposed by the noble and learned Lord, Lord Ackner, would strengthen the indemnity provisions which are contained in Section

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53 of the Justices of the Peace Act 1979, it covers only criminal cases and therefore excludes many of the cases which, I understand, have given rise to the current concerns expressed by magistrates. Nor does it address the separate question of immunity.

As my noble and learned friend the Lord Chancellor himself explained in this House on 15th January, the Government are aware of the concerns which magistrates have and of their view that in order to be adequately protected in the proper discharge of their functions, they should be given immunity against costs orders. My noble and learned friend made the point then that legislation to give greater immunity to magistrates would have ramifications for other members of the judiciary. He has announced that he intends to issue a consultation paper later in the year.

The noble and learned Lord, Lord Ackner, suggested that what my noble and learned friend the Lord Chancellor said in the House on 15th January was inconsistent with the contents of the Parliamentary Secretary's letter of 19th December to the Magistrates' Association. There is no inconsistency. The Parliamentary Secretary said that he is sympathetic to the arguments for immunity and is committed to finding a solution. As that would require legislation and would therefore take time, he said that he would also consider improved arrangements for giving effect to the current indemnity provisions as an interim measure.

My noble and learned friend the Lord Chancellor also indicated that he wished to address the question of immunity as a matter of urgency, but said that in view of the ramifications, he thought it right to consult before bringing forward legislation. He did not refer to the proposals for finding an interim solution, but that does not signify that he has rejected them. The two strands of the proposal--looking at immunity as the preferred solution and improving the indemnity arrangements in the interim--together represent my noble and learned friend's intended approach.

I recognise the desire of the noble and learned Lord, Lord Ackner, to safeguard the interests of the magistracy. However, I believe that it would be premature to deal with the matter in this fashion. The work which my noble and learned friend the Lord Chancellor has put in hand should result in a comprehensive solution to the difficulties which have been identified and for which there is much sympathy on the part of both the Parliamentary Secretary and my noble and learned friend. This proposal would not achieve that, and for that reason I hope that the noble and learned Lord will not press the amendment.

Lord Ackner: My Lords, before the Minister sits down, will she be kind enough to tell me who are the other members of the judiciary against whom costs orders are made?

Baroness Blatch: My Lords, I cannot answer that question because I simply do not know.

Lord Ackner: My Lords, I find that surprising because the mainstay of resisting the amendment is that it is

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premature because consultation is required and because there are other members of the judiciary who would be involved and therefore affected. It is surprising that the Minister's brief does not provide the very foundation to her resistance to the amendment. It makes me doubt even more the expedition which it is now said will occur to remedy this grossly unsatisfactory position.

We talk in high flowing language about protecting the independence of the judiciary. I would have thought that the possibility of there hanging over the heads of members of the judiciary a potential order for costs if they get their decisions unreasonably wrong is the very contradiction of independence. The risk of a judge looking over his shoulder in that situation is not to be discounted.

The Minister says that there is no conflict between the Parliamentary Under-Secretary's letter and the reply from the noble and learned Lord the Lord Chancellor. I refer merely to the strange observation at col. 361 of Hansard:


    "That is a pretty secure type of indemnity".--[Official Report, 15/1/96; col. 361.]
There is clear evidence that the magistrates are unhappy and some are resigning or threatening to resign. I compare that with the phrase that I read out from the Parliamentary Under-Secretary's letter:


    "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".
I believe that this is a most important matter since it goes to the very administration of justice. I seek the opinion of the House.

7.2 p.m.

On Question, Whether the said amendment (No. 90) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 72.

Division No. 4

CONTENTS

Ackner, L. [Teller.] Acton, L.
Addington, L.
Airedale, L.
Archer of Sandwell, L.
Barnett, L.
Berkeley, L.
Birk, B.
Blackstone, B.
Borrie, L.
Braine of Wheatley, L.
Bridge of Harwich, L.
Broadbridge, L.
Callaghan of Cardiff, L.
Carter, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Craigavon, V.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Falkender, B.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Fitt, L.
Geraint, L.
Gladwin of Clee, L.
Graham of Edmonton, L.
Greenway, L.
Gregson, L.
Grenfell, L.
Halsbury, E.
Hamwee, B.
Harmsworth, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Hylton-Foster, B.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Kilbracken, L.
Kirkhill, L.
Listowel, E.
Lockwood, B.
Longford, E.
Lytton, E.
McCarthy, L.
McIntosh of Haringey, L.
Mason of Barnsley, L.
Merlyn-Rees, L.
Mishcon, L.
Molloy, L.
Morris of Castle Morris, L.
Napier and Ettrick, L.
Nicol, B.
Palmer, L.
Rea, L.
Richard, L.
Rodgers of Quarry Bank, L. [Teller.] Sefton of Garston, L.
Shepherd, L.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Gryfe, L.
Templeman, L.
Tordoff, L.
Turner of Camden, B.
Weatherill, L.
Wedderburn of Charlton, L.
White, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.

NOT-CONTENTS

Addison, V.
Ailesbury, M.
Aldington, L.
Ampthill, L.
Banbury of Southam, L.
Beloff, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boardman, L.
Brentford, V.
Bridgeman, V.
Burnham, L.
Caithness, E.
Campbell of Alloway, L.
Chesham, L. [Teller.] Clanwilliam, E.
Clark of Kempston, L.
Colwyn, L.
Courtown, E.
Craigmyle, L.
Cumberlege, B.
Dean of Harptree, L.
Elles, B.
Elton, L.
Fraser of Carmyllie, L.
Geddes, L.
Goschen, V.
Hanson, L.
Harmar-Nicholls, L.
Hayhoe, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Inglewood, L.
Jenkin of Roding, L.
Keyes, L.
Kimball, L.
Lane of Horsell, L.
Lindsey and Abingdon, E.
Long, V.
Lucas, 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.
Miller of Hendon, B.
Monteagle of Brandon, L.
Mountevans, L.
Murton of Lindisfarne, L.
Northesk, E.
O'Cathain, B.
Pender, L.
Peyton of Yeovil, L.
Rankeillour, L.
Reay, L.
Rennell, L.
Selborne, E.
Selsdon, L.
Shrewsbury, E.
Skidelsky, L.
Strathclyde, L. [Teller.] Thomas of Gwydir, L.
Torrington, V.
Trumpington, B.
Tugendhat, L.
Vivian, L.
Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5 Feb 1996 : Column 70

7.10 p.m.

The Earl of Courtown: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 7.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

5 Feb 1996 : Column 71

Agricultural Holdings (Fee) Regulations 1996

7.11 p.m.

Lord Lucas rose to move, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee].

The noble Lord said: My Lords, the purpose of these regulations is to increase, from £70 to £115, the statutory fee for the appointment by the President of the Royal Institution of Chartered Surveyors of agricultural arbitrators, or persons to make a record of the condition of an agricultural holding.

The current fee of £70 is prescribed by the Agricultural Holdings (Fee) Regulations 1985 and has been in place since 1st January 1986. That is the date on which the function of appointing arbitrators, and persons to make a record of the condition of a holding, under the 1986 Act was transferred from the Ministry to the RICS. The RICS agreed to hold the fee at the same level for at least five years from the date it was introduced. In the 10 years that have elapsed since the fee was first prescribed by regulation, the RICS has faced substantial increases in the costs of providing the service, exceeding annual levels of inflation. The institution has now applied for an increase in the fee to £115. The intention is that the new fee will take effect from 1st March this year. The agricultural industry organisations have been consulted on the proposed increase, which has been widely accepted. The case presented by the RICS for the revised fee has been carefully examined. I am satisfied that £115 is a fair and reasonable fee. I ask your Lordships to approve the regulations. I beg to move.

Moved, That the draft regulations laid before the House on 17th January be approved [6th Report from the Joint Committee.]--(Lord Lucas.)


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