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Lord Kingsland had given notice of his intention to move Amendment No. 326ZA:


Page 37, line 31, at end insert--
("(6) In performing a duty or function imposed or conferred on him by section 41 of the Justices of the Peace Act 1997 or by or under any other enactment, a justices' chief executive must not do anything which--
(a) amounts to performance of a judicial function, or
(b) might influence anything done by a justice of the peace or justices' clerk in the performance of a judicial function.
(7) For the purposes of subsection (6), a judicial function is--
(a) any function of a justice of the peace, and
(b) any function of a justices' clerk which is not an administrative function.").

The noble Lord said: I spoke to the amendment when addressing Clause 59. The noble Lord has effectively replied to it in the course of his various replies to the noble Viscount, Lord Tenby, and my noble friend Lord Gisborough. I shall therefore not move the amendment.

[Amendment No. 326ZA not moved.]

Clause 61 agreed to.

Schedule 9 agreed to.

Clauses 62 to 65 agreed to.

Clause 66 [Execution by person not in possession of warrant]:

Lord McIntosh of Haringey moved Amendment No. 326A:


Page 41, line 42, after ("order);") insert--
("( ) a warrant under paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 (unwilling witnesses);
( ) a warrant under paragraph 3(2) of Schedule 1 to the Youth Justice and Criminal Evidence Act 1999 (offenders referred to court by youth offender panel);").

The noble Lord said: In moving Amendment No. 326A, I speak also to Amendments Nos. 326B and 331. These amendments make minor technical changes to Clause 66 and Schedule 11 to ensure consistency with certain provisions in the Youth Justice and Criminal Evidence Bill and the Crime and Disorder Act 1998.

Clause 66 of the Access to Justice Bill inserts a new Section 125 into the Magistrates' Courts Act 1980. Among other things this draws a distinction between those warrants which only a police officer may execute without the warrant being in his possession, and the warrants that may also be executed by civilians in similar circumstances. The list of warrants that may be executed by the police alone is identical to that which currently appears in Section 125 of the Magistrates' Courts Act.

However, provisions in the two other statutes, both of which affect the list in the current Section 125, are due to be introduced before Clause 66 is implemented. Paragraph 44 of Schedule 8 to the Crime and Disorder Act 1998 adds to the list warrants for the arrest of a reluctant witness. Paragraph 7 of Schedule 3 to the Youth Justice and Criminal Evidence Bill will also, if enacted, add to the list warrants for the arrest of an offender referred to the court by a youth offender panel. The amendment to Schedule 11 therefore provides for their appeal once Section 66 comes into force. The amendments to Clause 66 itself ensure that these

28 Jan 1999 : Column 1272

provisions are added to new Section 125C which will re-enact the existing list of warrants which a constable may execute without the warrant being in his possession. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 326B:


Page 41, line 43, leave out ("or 97") and insert (", 97 or 97A").

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

Clause 67 agreed to.

Clause 68 [Justices and clerks: immunity from costs]:

Lord Falconer of Thoroton moved Amendment No. 326C:


Page 43, line 3, leave out from beginning to ("House") in line 6 and insert ("No regulations may be made under subsection (4) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each").

The noble and learned Lord said: The government amendments to Clauses 68 and 72 provide that regulations under these clauses should be made by affirmative procedure.

The government amendments do not, however, cover the provisions in Clause 68 relating to Northern Ireland. The position in relation to Northern Ireland is different, for reasons I will explain. I therefore ask your Lordships to reject Amendment No. 327, the purpose of which is to provide that Northern Ireland regulations should also be subject to the affirmative procedure.

Clause 68 inserts a new section into the Justices of the Peace Act 1997 to give justices of the peace and others immunity against costs orders. It makes similar provisions in respect of resident magistrates, justices of the peace and clerks of petty sessions in Northern Ireland.

Clause 72 inserts a new Section 2A into the Taxes Management Act 1970 to provide general commissioners of income tax with immunity from costs, or in Scotland expenses, arising from the execution of their duties.

To protect the interests of other parties to any proceedings, each of the new provisions also gives a court the power to order payment by the Lord Chancellor of costs which would, but for the new provisions, have been ordered to be paid by the judicial officer who was party to the proceedings. In respect of general commissioners of income tax in Scotland, expenses may be ordered to be paid by the Secretary of State.

The clauses provide for the Lord Chancellor, or in Scotland the Secretary of State, to make regulations specifying the circumstances in which a court may exercise its power to order payment of costs and how the amount of any costs award is to be determined. Under the clauses as they are drafted those regulations would be made under negative resolution procedure.

The Delegated Powers and Deregulation Committee concluded that the regulations should be subject to additional parliamentary scrutiny provided by the affirmative resolution procedure.

28 Jan 1999 : Column 1273

The Government recognise that the regulations will deal with the exercise of the discretion of the courts. My noble and learned friend the Lord Chancellor has accepted the conclusion of the Delegated Powers and Deregulation Committee on this point and brings forward these amendments accordingly. However, as I have said, an exception needs to be made in respect of the procedure for Northern Ireland regulations.

The effect of Section 2 of Clause 68 is to amend the Magistrates' Courts (Northern Ireland) Order 1981. The practice is that subordinate legislation under an Order in Council under the Northern Ireland Act 1974 is made under negative procedure. The fundamental reason for this is wholly practical. Parliament simply could not give enough time to deal with Northern Ireland subordinate legislation if it were dealt with on an equivalent basis to subordinate legislation for England and Wales. This is a problem which I hope political progress in Northern Ireland will eventually resolve. In the meantime, I believe it right to maintain the principle that has been followed since 1974 in respect of Northern Ireland legislation and therefore to provide for Northern Ireland regulations to be made under negative procedure.

My noble and learned friend the Lord Chancellor realises that he is not fulfilling the letter of the commitment given earlier, in the light of the Select Committee report, to make Clause 68 subject to affirmative resolution. I am sure that the Committee will understand why, on reflection, he felt that Northern Ireland practice should be maintained. He is happy to provide the affirmative resolution for the powers in Clause 68 which cover England and Wales and the powers in Clause 72 which are UK-wide.

On Question, amendment agreed to.

[Amendment No. 327 not moved.]

Clause 68, as amended, agreed to.

Clauses 69 to 71 agreed to.

Clause 72 [General Commissioners: immunity from costs and expenses]:

The Deputy Chairman of Committees (Lord Lyell): I must advise the Committee that if Amendment No. 327A is accepted, I shall not be able to call Amendment No. 328.

Lord Falconer of Thoroton moved Amendment No. 327A:


Page 45, line 10, leave out from beginning to ("House") in line 12 and insert ("No regulations may be made under subsection (4) above unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each").

On Question, amendment agreed to.

[Amendment No. 328 not moved.]

Clause 72, as amended, agreed to.

Clause 73 agreed to.

Clause 74 [Indemnity]:

Lord Falconer of Thoroton moved Amendment No. 328A:


Page 46, line 22, leave out ("against him").

28 Jan 1999 : Column 1274

The noble and learned Lord said: In moving this amendment, I shall speak also to Amendments Nos. 328B to 328D. Clause 74 amends the Coroners Act 1988 to make provision for coroners to be indemnified by their councils where they are respondents in legal proceedings brought against them in the course of their coroner duties. The purpose of this amendment is to extend the scope of that indemnity so that coroners may also be reimbursed in cases where they have initiated legal proceedings in their capacity as coroners.

Coroners will rarely need to take such action. However, after an inquest has been completed and the verdict given, it sometimes emerges that a mistake or error has been made which cannot be corrected other than by re-opening the inquest; or else new evidence comes to light which casts doubt on the verdict and which might justify a new inquest. In these circumstances, a coroner has no power to overturn the original inquest but may apply to the High Court for an appropriate order for a fresh inquest.

If a coroner decides to pursue such a course, his paying authority--the local council--is not at present required to reimburse him either his costs in bringing the proceedings, nor any costs which might be awarded against him as a result of the proceedings. Nor does the present clause offer the coroner protection since it limits indemnification to costs arising from proceedings brought against him.

The amendment is designed to rectify this anomaly. However, while we believe it is proper to require councils to reimburse coroners their costs where proceedings have been brought against them, we consider that, if the proceedings are to be brought by the coroner, it would be right to provide the council with an opportunity, in advance, to consider whether or not to indemnify the coroner in the light of the circumstances of the particular case. This would enable the council to consider, for example, whether it was reasonable to incur the costs which were likely to arise. In the event that a council refused consent, the coroner should have the opportunity to appeal, and the amendment provides for such an appeal to be made to the Secretary of State or to someone appointed by him for that purpose.

The amendment is concerned with providing proper protection both for coroners and their councils in circumstances where a financial liability may arise. It does not alter or limit the opportunities for applications to be made to the High Court for fresh inquests. I beg to move.


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