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Lord Gisborough: I thank the noble Lord for that explanation and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 agreed to.

Clauses 56 and 57 agreed to.

Clause 58 [Standard goods and services]:

Lord McIntosh of Haringey moved Amendment No. 318A:

Page 35, line 14, leave out from ("requiring") to end of line 16 and insert ("every magistrates' courts committee, or every specified magistrates' courts committee, to obtain for the performance of any function referred to in section 55(1) above").

The noble Lord said: In moving the above amendment I shall speak also to Amendment No. 318B. The amendment has the effect of applying a technical clarification to Clause 58, making it clear that the reason why the MCC is being required to obtain particular goods or services is for the proper performance of its functions in the context of Section 55(l) of the Justices of the Peace Act 1997. The amendment also makes explicit that any regulations made may set a specific time by or at which the goods or services should be obtained.

Clause 58 allows the Lord Chancellor, if he considers that it would be in the interests of the efficiency and effectiveness of the magistrates' courts generally, to make regulations to require all MCCs, or specified MCCs, to use specified goods or services, or goods or services of a specified description. For example, the Lord Chancellor may require MCCs to purchase goods or services from a particular supplier where the department has negotiated a national contract on beneficial terms. Alternatively, he may require MCCs to purchase goods or services of a specified description so that they are compatible with those used by other MCCs (or other agencies), but leave it up to the MCC (or the paying authority) from whom the items are to be obtained. It is particularly in relation to new technology that it is considered that the proposed power will be most useful, but it could also be used in respect of other items, such as court forms.

I well remember my noble friend Lady Hilton of Eggardon recalling from her days in the Metropolitan Police that there were five police forces operating in the area around the M.25. Three different telecommunications systems applied to those forces, but they could not communicate with each other. I hope that these two amendments go some way towards ensuring that that does not happen in the magistrates' court service. I beg to move.

On Question, amendment agreed to.

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Lord McIntosh of Haringey moved Amendment No. 318B:

Page 35, leave out lines 22 to 25 and insert--
("(2) Regulations made by virtue of subsection (1) above may include provision requiring magistrates' courts committees to obtain the specified goods or services, or goods or services of the specified description--
(a) from a specified person or person of a specified description;
(b) at or by a specified time; or
(c) both from such a person and at or by such a time.").

On Question, amendment agreed to.

Clause 58, as amended, agreed to.

Clause 59 [Qualification for appointment]:

On Question, Whether Clause 59 shall stand part of the Bill?

Lord Kingsland: If Clause 59 is to stand part of the Bill, then, in my submission, certain changes will have to be made to Clauses 60 and 61. The provisions in all three clauses allow further encroachment by the courts' committee, and its chief executive, on the independence of the judiciary. The magistrates are supported by their professional advisers--that is to say, the justices' clerks. Section 45(4) of the Justices of the Peace Act 1997 provides that,

    "the functions of a Justices' Clerk include giving advice to the justices to whom he is clerk at their request about law, practice or procedure on questions arising in connection with the discharge of their functions, including questions arising when the clerk is not personally attending on them".
Section 45(5) goes on to state that,

    "the powers of a Justices' Clerk include, at any time when he thinks he should do so, bringing to the attention of those justices any point of law, practice or procedure that is or may be involved in any question so arising".

Through those provisions, the justices' clerk has, traditionally, brought to the attention of his justices changes to the law. The lay justice cannot, for example, be expected to pick up a new piece of legislation or read all the cases relevant to his or her area of work. Justices rely on their justices' clerks to bring relevant law to their attention, and then to advise on its interpretation. Under Clause 60, the Government propose that justices' clerks must now carry out this responsibility under the direction of the chief executive; and Clause 59 provides that this person need no longer be qualified in the law.

In practice this may mean that, at bench meetings and at magistrates' training sessions, the justices' clerk can be directed to give the interpretation of new legislation that is most favoured by the executive. It is not good enough for the Government to suggest that the independence of the judiciary is preserved by the fact that the justices' chief executive cannot direct the justices' clerk when advising a justice, or justices, in an individual case. If the chief executive has given a direction on the advice to be given through correspondence, at bench meetings or in training sessions, what credibility has the justices' clerk who, in the privacy of the retiring room, then advises justices in an individual case and says, "Ignore what I told you at the bench meeting, in my circular and in the training--what I say to you now is contrary, yet correct, advice"?

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The provisions of Clause 61(5) are also of concern to both the Magistrates' Association and the Justices' Clerks' Society. The Lord Chancellor will know that a working group on the judicial and administrative boundary in magistrates' courts was set up by his officials and yet, after 12 months of work, failed to come up with a clear definition of what work could be described as truly judicial and what work could be defined as administrative. The noble and learned Lord's officials were unsuccessful in drawing this distinction; it now appears that the noble and learned Lord is going to draw the distinction through statute.

He does so by defining all of the justices' clerks' functions as administrative--apart from giving advice to justices of the peace in an individual case and functions conferred on them when they act as a single justice. What then of the listing of cases? This is a function carried out by justices' clerks on behalf of their justices. In his speech on judicial independence, the noble and learned Lord the Lord Chief Justice quoted the then Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, from a lecture he gave on 6th March 1991. My noble and learned friend Lord Mackay of Clashfern said in relation to judges:

    "Their function is to decide cases and in so doing they must be given full independence of action, free from any influence. But in order to preserve their independence, the judges must have some control or influence over the administrative penumbra immediately surrounding the judicial process. If judges were not, for example, in control of the listing of cases to be heard in the courts it might be open to an unscrupulous Executive to seek to influence the outcome of cases ... by ensuring that they were listed before judges thought to be sympathetic to a point of view or simply by delaying the hearing of a case if that seemed to advantage the public authority concerned".
If Clause 61(5) is enacted, as presently drafted, in my submission listing becomes defined as an administrative function in magistrates' courts.

Viscount Tenby: I wish to make a brief observation about this matter. Of course many of my birds will already have been shot by the time I move my amendments because these matters are inextricably mixed. In fact I do not know why some of them were not grouped together. I have no intrinsic objection to a lack of a legal qualification for a justices' chief executive because it seems to me that you have to get talent wherever you can get it, but all other things must be equal. That point has been ably made by the noble Lord, Lord Kingsland, in opposing this clause.

I mention briefly in passing that the proposition in Clause 56--the Committee need not worry, I am not going back to it--that the number of co-opted members on an MCC might be increased from the present ceiling of two also looks attractive were it not for the fact that so far only about two MCCs out of 84 have even got as far as two.


Lord Gisborough: Perhaps I may speak to my Amendments Nos. 319 to 322.

Lord McIntosh of Haringey: The noble Lord can do that; however, the grouping was agreed, not by the

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Government, but by noble Lords who are taking part. I was proposing to say that I should treasure the lapidary words of the noble Lord, Lord Kingsland, in my heart, but that they had nothing whatever to do with Clause 59 stand part. I should much prefer to debate the issues of detail in relation to Clauses 60 and 61 on the specific amendments tabled by the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby. In that way, we have something that we can get our teeth into.

I hope that the noble Lord, Lord Kingsland, without repeating himself afterwards, will accept that it would be better to let Clause 59 stand part and then debate specific amendments.

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