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Lord Phillips of Sudbury moved Amendment No. 183:

After Clause 47, insert the following new clause--

Prohibition against children being present in court during the trial of other persons

(" . In section 36 of the Children and Young Persons Act 1933 (prohibition against children being present in court) after "shall", where it first appears, insert "without the consent of the court (which may be withdrawn at any time)".").

The noble Lord said: My Lords, this amendment is addressed to the fact that Section 36 of the Children and Young Persons Act 1933 prevents children under the age of 14 from going into a court other than as witnesses or in one or two other specific capacities. If the amendment is passed, it will permit any court to allow anyone of any age into the court with the consent of the court, that consent to be withdrawn at any time.

The origin of this proposal is very simple. The charity of which I am chair, the Citizenship Foundation, in conjunction with the Magistrates' Association, has for some years now run an extremely successful mock trial competition for young people in magistrates' courts. The Lord Chancellor will recollect, I am sure, his appearing last year to judge the final of this remarkable competition which engages more than 2,500 young people every year in going into magistrates' courts and conducting cases, taking all the roles in the conduct of those cases, including those of magistrates themselves, with only one genuine person, if I may use that expression, being present on those occasions; namely, the chair of the Bench for each case.

As the law stands, although the typical age of the participants is 12 and 13, they are not allowed into local magistrates' courts prior to their day in court in order to get the feel of the real court in action and to get some idea of how cross-examinations are undertaken and how indeed the whole court process works. This amendment

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has the innocent intent of allowing these 12 and 13 year-olds to sample the reality before they do their bit and try their own efforts at taking the parts in the court process.

The amendment is simply drawn. It gives complete discretion to each and every court as to whether to admit children under the age of 14 and explicitly gives any of those courts which do allow young people in, the right at any time to ask them to withdraw. I therefore commend to your Lordships the proposal contained in this amendment. I should also add that the Justices' Clerks' Society, which is such a strong supporter of the "mock trial" competition, is also happy at the thought that this amendment may pass your Lordships' House. I beg to move.

11 p.m.

The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Phillips of Sudbury, for bringing this issue to your Lordships' attention. This is an area of legislation that has remained unchanged, for one reason or another, for over 65 years. To some, that might signal that there are no real problems with this section; no real mischief to address. To my mind, that is certainly not necessarily so. The fact that there has been no change for a long time should not preclude useful alterations now. I therefore wish to explore for a moment or two the exact intention behind the amendment.

As the law stands, children are prohibited from attending criminal trials unless they are a defendant, a witness, an infant in arms or their presence is required for the purposes of justice. The intention of this section was almost undoubtedly to protect children from the sometimes harsh, perhaps troubling environment, of an adult trial. But we recognise that time has moved on. We have already made changes to youth court procedure to achieve a greater openness in proceedings, and a move to greater openness could be welcome. Also, we recognise, as the noble Lord, Lord Phillips, emphasised, the importance of our children being educated in the process of justice as well as in the other institutions of an open society. So I am not unsympathetic to the spirit of the proposed new clause.

The effect of the amendment would appear to be to create a greater openness while maintaining the court's control over its own proceedings. Of course the new clause will affect not only the magistrates' courts but also the higher criminal courts. It is important that the court be left to regulate its own proceedings in this area because the court's decisions will vary on a case-to-case basis.

While I can see the argument that the court should have a discretion to exclude children from the outset, let us say because of the nature of the case, or in the course of the case because of the nature of the evidence being given at the time, I am unhappy with an open-ended discretion to exclude or admit by reference to no statutory criteria. One court could exclude children as a matter of course whereas another could follow a quite different approach.

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My basic reaction--though I confess I have not thought this through thoroughly--is that, if there were to be a change of this nature, there should be statutory criteria by reference to which children should be excluded or admitted. I readily confess that I have not given my mind sufficiently to what those criteria might be or how meaningful or useful they might be. It is for consideration whether there should be a rebuttable presumption in favour of admission subject to exclusion based on statutory criteria.

I have said enough to indicate to the noble Lord that I am sympathetic to the spirit of his amendment, but invite him to give further thought to an amendment along the lines I indicated. Meanwhile, I will have my officials do likewise. I undertake to write to the noble Lord; I invite him to write to me. On that basis, which is an expression of sympathy for the spirit of his amendment, I hope he will withdraw his amendment this evening.

Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord for that response. I am very happy to withdraw the amendment on the basis indicated.

Amendment, by leave, withdrawn.

Clause 54 [Areas outside Greater London]:

Lord Kingsland moved Amendment No. 184:

Page 32, line 19, at end insert--
("( ) a unitary county council;").

The noble Lord said: My Lords, I rise to speak briefly to Amendment No. 184 in the absence of the noble Lord, Lord Mottistone.

The amendment applies to subsection (10) of Clause 54. The clause deals with magistrates' courts committees. Subsection (10) defines what is a relevant authority. There are three categories of relevant authority stipulated in the Bill: a county council; a county borough council; and the council of a unitary district. The amendment seeks to add a fourth category: a unitary county council.

Under the Local Government and Rating Act 1997 a unitary county council is defined as a council in a county in which there are no district councils. Apparently, the Isle of Wight is the only geographical entity which falls into that category. Were this amendment not passed, therefore, the Isle of Wight would be excluded from the scope of Clause 54. I beg to move.

Lord McIntosh of Haringey: My Lords, I am happy to assure the noble Lord that this amendment is unnecessary. The definition of "relevant authority", as set out in Section 32(10) of the Justices of the Peace Act 1997, is unchanged by Clause 54, barring the omission of references to councils for London. This reflects the position since the Police and Magistrates' Courts Act 1994. Clause 56 establishes a separate magistrates' courts authority for Greater London.

A unitary council such as the Isle of Wight, of which the noble Lord, Lord Mottistone, was such a distinguished Lord Lieutenant, falls into category (a) of

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Clause 54(10) as it is a county council. All other unitary authorities are captured within the ambit of subparagraph (c) of the clause. As the primary purpose of this subsection is explanatory only, I invite the noble Lord to withdraw the amendment.

Lord Kingsland: My Lords, I shall convey the noble Lord's reassuring words to the former Lord Lieutenant and Governor of the island. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [Qualification for appointment]:

Lord Jenkin of Roding moved Amendment No. 185:

Leave out Clause 58.

The noble Lord said: My Lords, I have hesitated at some length as to whether I ought to intervene at this stage, having taken no part in these proceedings but having listened with some admiration to the immensely learned preceding debates. I assure noble Lords on the Government Front Bench that I am not the vanguard of the nightshift and I shall try to be brief.

I have some sympathy with the anxieties that have been expressed about Clause 58 by the Association of Justices' Chief Executives. Members of the association believe that their posts should by law continue to require a legal qualification and that Clause 58 is misconceived and ought to be removed from the Bill.

I have studied the Committee stage debates on this and the following clause that took place on 28th January, and I have read carefully the speeches of the noble Lord, Lord McIntosh of Haringey, (at col. 1265 of Hansard) and the remarks of those who took part in that debate, and also the second speech of the Minister (at col. 1268) in response to a point raised by the noble Viscount, Lord Tenby. I have also seen the government amendments on the following clause, which may go some way to meet the anxieties of the association.

But to my inexpert mind, those debates and the amendment that has been tabled to the new clause have been primarily aimed to protect the independence of the individual justices' clerk from improper influence so as to underline the importance of his role in giving legal advice to magistrates' courts. It was also desired to clarify the distinction between the justices' clerks' legal role and their administrative functions.

The amendments that were debated and those that will be before this House were not primarily aimed at retaining the existing law about chief executives' legal qualifications. I do not think that this is a case that has yet been argued on the Bill. I think it should be argued so that Ministers can explain why they are removing this required qualification.

What is now Clause 59(6) of the Bill seeks to give authority to justices' chief executives to direct the advice to be given by justices' clerks and other staff, other than advice that is protected by Section 48 of the 1997 Act. I am advised that this would include legal advice given to justices outside the court room. It seems to the association wrong to allow a chief executive who

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does not himself have a legal qualification such as is required to be held by the justices' clerk to exercise such powers.

During the passage of the Police and Magistrates' Courts Act 1994, Parliament was very careful in its consideration of this matter. It took the view then--and the association believes that Parliament was right--that there were substantial grounds for retaining the requirement for justices' chief executives to be legally qualified.

The Magistrates' Court Service is essentially a legal service, operating within what I believe everyone recognises as a highly complex statutory framework. It is essential that a magistrates' courts committee's chief officer--for that is what we are talking about--is competent in the law so as to be in a position to ensure that the courts committees function within the law. He must himself understand that fine line, which I think was debated at some length in Committee, between legal advice and the administrative functions in order to maintain the independence of the judicial process, which we all regard as of the utmost importance.

Magistrates' courts committees are increasingly expected to have a clear understanding of complex areas of law in relation to such matters as employment, finance and other issues and they must therefore have as their chief executive officer a man or woman who is fully able to understand such issues and assist them in applying the law to the decisions that are made.

A professional legal qualification facilitates and strengthens the responsibilities attached to the justices' chief executives because they are responsible for the line management of the justices' clerks. They take the view that it is not satisfactory that the legally qualified clerks should have as their next-in-line manager someone who does not need to be legally qualified. This is important not only in the management of the courts but in the operation of the magistrates' courts committee's area legal forum.

A professional legal qualification facilitates successful inter-agency discussions with other chief officers within the justice system who themselves possess legal qualifications. One thinks immediately of the Crown Prosecution Service, the local law society and other services which have to have a substantial knowledge of the law, such as the police, the Probation Service, and so on.

As was mentioned in Committee, the justices' chief executive is responsible for overseeing many legal or quasi-legal statutory functions, such as enforcement and legal aid. While the Bill seeks to define a clearer separation on the one hand of legal roles delivered by the justices' clerk and his roles in administration on the other, the fact of the matter is that the whole service finds its focus through the post and position of the justices' chief executive. He it is who must be capable of understanding and bringing together the two sides, legal and administrative, to ensure effective delivery of the important legal and judicial service. If he himself does not have the legal qualification, there is a real danger that he will not be able to perform that function as effectively as hitherto. Ministers have not explained

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why they believe it is right to remove that requirement. I believe that the association has adduced some powerful arguments that need a reply. I beg to move.

11.15 p.m.

Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for expanding on what is a relatively simple issue; namely, the proposal to remove Clause 58, which itself removes the requirement that a person may not be appointed as a justices' chief executive without the specified legal qualifications of a justices' clerk. The noble Lord, Lord Jenkin, referred to the fairly extended debate in Committee, part of which was about the qualifications of the justices' chief executive but much more of which was about the need, as a number of noble Lords saw it, to define and protect the legal responsibilities of justices' clerks.

A number of noble Lords, in particular the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby, felt that the proposals in the Bill to rely on Clause 48 of the Justices of the Peace Act 1997 were not adequate to protect the legal responsibilities of justices' clerks because they referred only to protection in giving advice in an individual case. They felt that it was important to have that more widely drawn.

In response to those objections I undertook to go back and consider what further amendments would be necessary. As the noble Lord has generously acknowledged, that is what is contained in Amendments Nos. 186 to 189. I hope that when we come to those amendments I shall be able to show that we have achieved that certainly to the satisfaction of the Justices' Clerks Society and, I hope, to the satisfaction of the Association of Justices' Chief Executives.

Having said that, we return to what I may be so bold as to describe as the secondary issue of whether the justices' chief executive should have legal qualifications. The post of the justices' chief executive was established by the Police and Magistrates' Courts Act 1994. Each of the then 105 magistrates' courts committees, with three exceptions, was duty bound to appoint a lawyer qualified as a justices' clerk. This gave a near monopoly to justices' clerks to be promoted to chief executive. The Government do not believe that that monopoly should continue. We are fortified in that view by having, I hope to the satisfaction of all concerned, properly distinguished between the legal and the administrative roles of justices' clerks.

The noble Lord, Lord Jenkin, said that essentially this was a legal service. It is not. Essentially, it is a legal service contained within an administrative service of very considerable extent involving a vast amount of public expenditure. That is not to say that the experience of justices' clerks, the service's professional legal advisers--who until now have comprised the overwhelming majority of justices' chief executives--will be wasted. There will be no pressure on committees to appoint non-lawyers. Committees will retain the right to choose and appoint lawyers if they wish. This clause provides committees with the opportunity to appoint individuals without legal qualifications but with relevant skills in management and administration of what is,

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I repeat, a very considerable business. Justices' clerks will not be prevented from applying for posts but the competition will be wider.

We believe that the current legislation limits the potential of committees to attract the best possible applicants for the post of justices' chief executive. I do not denigrate the skills of those individuals who have been appointed as justices' chief executive, but the skills of managers in other organisations, whether in the public or private sector, are pertinent to the management of the magistrates' courts. With his own business experience, I hope that the noble Lord, Lord Jenkin, will recognise the importance of transferability of skills. It is essential that a justices' clerk is legally qualified of course. The lay magistracy rely on him for advice in court and on matters of law including practice and procedure.

The justices' chief executive is the statutory head of service locally. Subject to any directions given by the committee, the chief executive is responsible for the day-to-day running of the area.

Since 1994, it has become clearer that the chief executive has a different role and needs to be a dedicated administrator and not dilute the emphasis of this pivotal post with the added daily responsibilities of a lawyer. The removal of the requirement for legal qualifications is particularly important, as Clause 60 of the Bill transfers the responsibility for administrative functions from the justices' clerk to the justices' chief executive. That is to ensure that neither the administrative nor the legal functions are diminished in any way.

It is true that anything dealing with the magistrates' courts requires an understanding of the law. The noble Lord, Lord Jenkin, makes a valid point. But that can be achieved through good training. It can be business training which is transferable. The magistrates' courts committee will, I am sure, recruit competent chief executives; and a legal qualification need not be required because the magistrates' courts will make that decision.

In the light of our undertaking, which I believe we have fulfilled, to make the proper distinction between legal functions and administrative functions I hope that the noble Lord and the Association of Justices' Chief Executives will feel that we have come to the right conclusion. I invite the noble Lord to withdraw the amendment.

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