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COMMONS AMENDMENTS

84

After Clause 38, insert the following new clause--

FUNDING OF OMBUDSMAN BY PROFESSIONAL BODIES

(". In paragraph 7 of Schedule 3 to the Courts and Legal Services Act 1990 (financial provisions relating to Legal Services Ombudsman), for sub-paragraph (1) (Ombudsman's expenses to be defrayed by Lord Chancellor) substitute--
"(1) The Lord Chancellor may require any professional body (within the meaning of section 22 of this Act) to make payments of such amount as the Lord Chancellor considers appropriate to the Ombudsman towards meeting the expenditure incurred (or to be incurred) by him in the discharge of his functions.
(1A) To the extent that that expenditure is not met by payments under sub-paragraph (1), it shall be met by the Lord Chancellor out of money provided by Parliament."").
85

Insert the following new clause--

THE COMMISSIONER

(".--(1) The Lord Chancellor may appoint a person as Legal Services Complaints Commissioner.
(2) Any appointment of a person as Commissioner shall be for a period of not more than three years; and a person appointed as Commissioner shall hold and vacate office in accordance with the terms of his appointment.
(3) At the end of his term of appointment the Commissioner shall be eligible for re-appointment.
(4) The Commissioner shall not be an authorised advocate, authorised litigator, licensed conveyancer or authorised practitioner (within the meaning of the Courts and Legal Services Act 1990) or a notary.
(5) Schedule (Legal Services Complaints Commissioner) (which makes further provision about the Commissioner) has effect")
86

Insert the following new clause--

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COMMISSIONER'S FUNCTIONS

(".--(1) If it appears to the Lord Chancellor that complaints about members of any professional body are not being handled effectively and efficiently, he may by direction require the Legal Services Complaints Commissioner to consider exercising in relation to the body such of the powers in subsection (2) as are specified in the direction.
(2) Those powers are--
(a) to require a professional body to provide information, or make reports, to the Commissioner about the handling of complaints about its members,
(b) to investigate the handling of complaints about the members of a professional body,
(c) to make recommendations in relation to the handling of complaints about the members of a professional body,
(d) to set targets in relation to the handling of complaints about the members of a professional body, and
(e) to require a professional body to submit to the Commissioner a plan for the handling of complaints about its members.
(3) Where the Commissioner requires a professional body to submit to him a plan for the handling of complaints about its members but the body--
(a) fails to submit to him a plan which he considers adequate for securing that such complaints are handled effectively and efficiently, or
(b) submits to him such a plan but fails to handle complaints in accordance with it,
he may require the body to pay a penalty.
(4) Before requiring a professional body to pay a penalty under subsection (3) the Commissioner shall afford it a reasonable opportunity of appearing before him to make representations.
(5) The Lord Chancellor shall by order made by statutory instrument specify the maximum amount of any penalty under subsection (3).
(6) In determining the amount of any penalty which a professional body is to be required to pay under subsection (3) the Commissioner shall have regard to all the circumstances of the case, including in particular--
(a) the total number of complaints about members of the body and, where the penalty is imposed in respect of a failure to handle complaints in accordance with a plan, the number of complaints not so handled, and
(b) the assets of the body and the number of its members.
(7) A penalty under subsection (3) shall be paid to the Commissioner who shall pay it to the Lord Chancellor.
(8) Where a direction under subsection (1) in relation to a professional body has been given (and not revoked), section 24(1) of the Courts and Legal Services Act 1990 (power of Legal Services Ombudsman to make recommendations about arrangements for investigation of complaints) shall not have effect in relation to the body.
(9) No order shall be made under subsection (5) unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(10) In this section "professional body" has the same meaning as in section 22 of the Courts and Legal Services Act 1990.")

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 84 to 86.

Moved, That the House do agree with the Commons in their Amendments Nos. 84 to 86.--(The Lord Chancellor.)

On Question, Motion agreed to.

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COMMONS AMENDMENT

87

Clause 44, page 26, line 26, at end insert--


("(1A) In section 8(1B)(b) of the Criminal Appeal Act 1968 (power of Court to direct entry of judgment and verdict of acquittal on applications relating to order for retrial), after "to" insert "set aside the order for retrial and".
(1B) In section 9(2) of that Act (right of appeal against sentence for summary offence), insert at the end "or sub-paragraph (4) of that paragraph.".")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87. I shall speak also to Amendments Nos. 88 to 90 inclusive. They amend the Criminal Appeal Act 1968. These are technical and I hope uncontroversial amendments which correct drafting defects. They are necessary to facilitate a consolidation Bill in a future Session of Parliament.

Moved, That the House do agree with the Commons in their Amendment No. 87.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

88

Clause 88, page 26, line 27, leave out ("the Criminal Appeal Act 1968") and insert ("that Act")


89

Page 26, leave out line 30 and insert ("to (5).")


90

Page 26, line 38, at end insert--


("(5) In subsection (4) (calculation of length of term of imprisonment), after "imprisonment" insert "or detention".")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 88 to 90.

Moved, That the House do agree with the Commons in their Amendments Nos. 88 to 90.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

COMMONS AMENDMENT

91

Clause 47, transpose Clause 47 to after Clause 52

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 91. I shall speak also to Amendments Nos. 95, 133 and 236.

Amendment No. 95 inserts a new clause to correct an unfortunate anomaly in the law relating to the holding of judicial office. It will allow serving UK judges to be seconded to international and European courts.

At the moment, if a serving judge wishes to take up a temporary appointment on an international or European court, he has to resign from the Bench. That is obviously unsatisfactory. The judge must give up office with no promise of later appointment and this country might lose the opportunity of demonstrating commitment to the international court by being represented on it by a senior serving judge of high quality. That is in marked contrast to arrangements in other countries which are frequently represented abroad by some of their most distinguished judges.

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Parliament took the opportunity in the Human Rights Act 1998 to rectify that anomaly for appointments to the European Court of Human Rights. The United Kingdom is now represented on that court by a High Court judge. This new clause makes more general provision than was possible within the scope of that Act.

The clause applies to the courts of the European Community and allows the Lord Chancellor or the Secretary of State for Scotland to designate other international courts to which judges can be seconded. While a judge is seconded, he or she will retain their UK office without having to perform any of the duties of that office. On the other hand, they will have no right to receive their United Kingdom salary and they will not accrue any additional benefits from their judicial pension scheme.

Provision is also made to ensure that the United Kingdom courts do not suffer through the absence of one of their judges by providing that a seconded judge does not count against the maximum number of judges permitted by law. Because the end of a secondment may not coincide with the retirement or promotion of a judge whom the returning judge could replace, power is taken to make transitional provisions when an appointment to an international court ends.

Amendment No. 133 provides for new Clause 68 to apply to the whole of the United Kingdom, and Amendment No. 236 extends the Long Title of the Bill. The Motion standing in my name to move Clause 47 will bring together the various clauses about judicial posts.

This simple measure will allow the United Kingdom to demonstrate its commitment to the courts of the European Communities and of the wider international community and ensure that those courts benefit from the best judges this country has to offer.

As I said, the new clause is modelled on the provision already included in the Human Rights Act. However, the new clause differs from the version in the Human Rights Act in one particular respect which concerns judicial pensions. The amendments put down by the noble and learned Lord, Lord Ackner, seek to change the new clause so that it replicates exactly what was in the Human Rights Act in respect of judicial pensions. I should like again to acknowledge the role played by the noble and learned Lord, Lord Ackner, in securing the earlier provision during the passage of the Human Rights Act. But I hope to explain why I believe that in this case his amendments are not appropriate.

In the case of the Human Rights Act, the relevant section provides that, subject to the making of an appropriate order, a judge seconded to the European Court of Human Rights can continue to accrue rights in his UK judicial pension scheme for the period of his service abroad. It was appropriate to make this provision because the Council of Europe does not itself provide pensions for judges of the European Court of Human Rights. The new clause does not replicate this facility for a judge seconded to other international courts for the reason, quite simply, that this new clause is designed to apply to international courts which do provide pensions

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or equivalent benefits to their judges. My understanding is that all of the various courts in relation to which we can envisage this provision applying either do, or are likely to, provide pension benefits. The European Court of Human Rights was therefore an unusual exception in this regard.

Clearly, if an international court already provides pension benefits, there is no need also to provide benefits under the UK judicial pension scheme. I am sure that no one would accept that a judge should receive pension benefits twice over in respect of the same period of service on top of a generous and tax free European salary.

It is possible, of course, that a new international court or tribunal could be created at some time in the future which does not provide pension benefits to its judges. In that event we could consider whether it was appropriate to make a further legislative provision regarding judicial pensions which would--like that contained in the Human Rights Act--be specific to the particular court. However, as I said, we are not presently aware of any instances where this is likely to be necessary.

In view of that, it would be risky to create in this new clause--as the noble and learned Lord's amendments would do--a provision which could have the effect of obliging us to provide benefits under the UK judicial pension scheme even where a judge was also receiving pension benefits from an international court at the same time. As this new clause can potentially apply in relation to any and all international courts, I submit that it would not be sensible to make such an open-ended commitment.

I hope therefore that the noble and learned Lord will be reassured that the reason for the difference on which he has focused attention is not to deprive judges of pensions to which they would properly be entitled; rather, it is that there is simply no need, in relation to courts other than the European Court of Human Rights, for the particular provision on judicial pensions which he seeks. If an example arises in future where the need does arise, we can consider it at that time. I accordingly invite the noble and learned Lord to withdraw his amendments. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 91.--(The Lord Chancellor.)


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