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The Deputy Speaker (The Viscount of Oxfuird): My Lords, we now come to Amendment No. 97 in the name of the noble Lord, Lord Dholakia--

Lord Williams of Mostyn: My Lords, without being discourteous to the noble Lord, Lord Dholakia, perhaps I could be of assistance. There are a number of grouped amendments here and I can put it generally, if I may, but it is the Government's intention to meet the requirements or the requests of the movers of Amendments Nos. 97, 98, 99, 100, 103, 101, 102, 105 and 104, not in entirety but generally. It may be helpful, therefore, if I simply indicate what the Government's view is. That may or may not satisfy the various movers; the noble Lords, Lord Dholakia and Lord Goodhart, and the noble Baronesses, Lady Anelay and Lady David. I am advised that the noble Lord, Lord Dholakia, should move the amendment formally before I make any rejoinder to something he has not said.

Lord Dholakia moved Amendment No. 97:

Page 31, leave out lines 22 to 24.

The noble Lord said: My Lords, the Minister has been very kind to me in the past, and I am sure he intends to be so again. I beg to move.

Lord Williams of Mostyn: My Lords, the amendments to which I referred are in a general group. They relate to problems which a number of noble Lords had in relation to the powers under Clause 40. Amendments Nos. 100 to 104 and 97 restrict the powers in Clause 40 which could be made available to justices' clerks or, in the case of Amendment No. 97, to a single justice. There were concerns expressed in Committee by a number of noble Lords and I promised that we would consult further. I think we have delivered on that promise.

Last week I met a delegation, including the noble Baronesses, Lady Anelay and Lady David, and the noble Lord, Lord Goodhart, together with representatives of the Magistrates' Association and the Justices' Clerks' Society. As recently as Monday the Home Secretary had a useful meeting with the Lord Chief Justice, who had also expressed concern. The Home Secretary wrote to the Lord Chief Justice with some proposals and I am able to say that the Lord Chief Justice has indicated that he is generally content--generally, I have to say, not perfectly.

We always intended that the powers in Clause 40 should be exercisable by a justice sitting alone, not a full court. The Lord Chief Justice sees no difficulty in that. We intended that the listed powers should be capable, if suitable rules were made, of being exercised by clerks but that it might be necessary--indeed it would be necessary--for the powers to be restricted

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when given to clerks. The drafting of the clause, which has been explained earlier, made provisions for those restrictions.

Following very strong representations, and they were reasoned representations, we wondered whether there should be restrictions on the face of the Bill. We have come to the conclusion that it is possible to do that and furthermore that it is right to do that. I can tell your Lordships that we propose to move suitable amendments at Third Reading to make clear the extent of the powers which clerks would be capable of exercising subject to rules.

The most objectionable power as seen by your Lordships was that of remanding a defendant in custody. The power to remand on bail was also opposed by the Magistrates' Association. It was never the Government's intention that clerks should be empowered to determine disputed issues of bail or custody. The amendment in the name of my noble friend Lady David would prevent clerks from remanding a defendant in custody at all, even where he had previously been so remanded by a court and was content for the remand to be extended. That would mean that clerks would be precluded from conducting pre-trial reviews in any custody cases, which would detract significantly from courts' ability to organise themselves efficiently. Our proposal, therefore, is to withhold from clerks the power to remand a defendant in custody, with the one exception, which we believe to be reasonable and well justified, that a clerk would be able to renew with the defendant's consent a remand in custody which has previously been made by a court. I believe that to be a reasonable outcome.

As for remands on bail, we would again propose that the power to vary conditions or to impose new ones should be exercisable by clerks only with the parties' consent. A clerk would be capable of renewing bail on the same conditions without consent. Clerks would also be given a new power to grant bail to a defendant who had answered to police bail in appearing at an early administrative hearing, since without this power clerks would be unable to conduct such hearings at all. Again, we believe that that is reasonable.

There has been a good deal of concern about pre-sentence reports. We see some force in the argument that to give an indication of seriousness would involve the clerk too closely in the sentencing process. We are therefore content to remove that part of the paragraph as far as clerks are concerned.

Amendment No. 97 in the name of the noble Lord, Lord Dholakia, would go much further, removing the power to order a pre-sentence report altogether, not only from a clerk but from a single justice. We do not think that that is right. It would mean that many cases in which a guilty plea was made at a pre-trial hearing would have to be put before a full Bench merely to order a pre-sentence report when it was apparent that that was wanted.

Paragraph (m) of Clause 40(1), relating to prohibition of publication was a matter of concern to the Lord Chief Justice. It was specifically raised by the noble Lord, Lord Goodhart, when we had our discussion, which all

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present found useful and fruitful. The noble Lord pointed out that it might involve a clerk in taking decisions which might be controversial and subject to criticism. We thought about that and we have concluded that the noble Lord is right. We think that that power should be excluded from clerks and reserved to a single justice.

In relation to the power in paragraph (o), about orders for joint or separate trials, the Government are happy to accept the suggestion of the noble and learned Lord the Lord Chief Justice that we should insert a provision requiring the parties' consent to that decision being taken by a justices' clerk.

There remains one power--that in paragraph (n), about giving directions for the conduct of the trial--about which the Lord Chief Justice still has some reservations. We wondered whether this power could be limited by requiring consent. But this is a wide-ranging power, covering such issues as the timetable for the case and attendance of witnesses, and it is fundamental to the role of the clerk in the management of cases rather than their disposal. We think that to require the parties' consent would damage that provision because it gives the mischievous an opportunity to be unco-operative and to put a spoke in the wheel.

We are not persuaded of the case for Amendment No. 99, which needs the parties' consent to the exercise of the power to bring forward the date of a hearing to which the defendant has already been bailed by the police. The power can be exercised by a court. It is seldom needed. It is likely to be used even less in the future because of the Clause 37 requirement for defendants to be bailed to the next available court hearing. The parties' consent was not necessary when a date was originally set by the police and we do not see why it should be needed when a single justice or a clerk alters it.

We do not think that the drafting suggested in Amendment No. 98 is necessary. Some of the powers in Clause 40 relate to extending time limits and to the grant of bail. It might be helpful if I set out our thoughts because we intend to introduce a number of amendments at Third Reading. First, we should like to amend Clause 34 to make it clear that time limits may be extended where a court orders separate trials in the interests of justice. Secondly, we wish to introduce a new clause to strengthen the use of sureties in bail cases to complement the wider use of securities in Clause 45.

We hope to introduce an amendment to the bail provision in the Criminal Justice and Public Order Act 1994, which is currently the subject of two actions in the European Court of Human Rights. At Third Reading we intend to table amendments to Clause 40 which take account of many of the points that have legitimately troubled your Lordships. We are looking again at the finer points of the clause for further improvement.

Amendment No. 105 in this group is in the names of the noble Baroness, Lady Anelay, and the noble Lord, Lord Henley. We agree that not all court clerks would be suitable to exercise the power specified. Justices' clerks may be authorised under rules to exercise the powers of a single justice, and justices' clerks may in

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turn delegate those powers at their discretion to other court clerks. We intended that before the piloting of Clause 40 the consultation procedure provided in subsection (3) should address, among other things, the question of who, apart from the clerk to the justices himself, should be authorised. I am not sure that this amendment is precisely what is needed. I apprehend that the noble Baroness put it forward on the basis that it might stimulate further thought. It has had that consequence. We are quite happy to consider whether there is scope for restricting the extent to which Clause 40 powers can be delegated by justices' clerks to other clerks, but we wish to retain local flexibility which is very important. On the basis of that indication I hope that the noble Baroness is reasonably content for this evening.

9.30 p.m.

Baroness Anelay of St. Johns: My Lords, I hope that I can be both reasonable and content but perhaps not necessarily at the same time. I thank the Minister for his early indication about amendments to Clause 40 that the Government may table at Third Reading. With the leave of the House, perhaps I may respond briefly. I am aware that at Report, when the Minister has spoken at an early stage, those who have tabled amendments may comment before the noble Lord, Lord Dholakia, determines whether or not he wishes to proceed with his amendment.

I should like to place on record my thanks to the noble Lord, Lord Williams of Mostyn, for the meeting held at my request last Thursday. It was a most helpful meeting for all those who attended. I know that the noble Viscount, Lord Tenby, would have attended that meeting had he not had a previous long-standing engagement. Those who attended made non-party, non-partisan representations on the core matters of concern in regard to bail and the ordering of pre-sentence reports with an indication of the seriousness of the offence by a justice's clerk.

I have listened carefully to what the Minister has said. I shall read carefully in Hansard the implications of the proposals that he has made this evening, but at first sight it appears that most of my objections have been met. However, in this world one does not get everything for which one asks. It appears that the Government have listened to the principles underlying my objections. I note at this stage that the pre-sentence report will still be granted by a justice's clerk or a magistrate sitting alone, which is almost on a par with the procedure in the Crown Court where a report is ordered in virtually every case. The query in my mind is what implications that has for the Probation Service in preparing such reports, because it appears that consequently there will be a huge increase in its workload. I am sure that the Government will consult the service about the implications of the proposals. I shall consider whether there are any outstanding issues when I have read Hansard.

The Minister has referred to Amendment No. 105 in my name. I am relieved to hear that the Government are looking closely at what experience a justice's clerk

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should possess before he carries out the powers to be delegated to him under Clause 40. I end simply by thanking the Minister for the remarks that he has made. When we come to Amendment No. 105 I shall not be moving it.

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