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Lord Waddington: It is a pity that the amendment should be debated so late in the evening. There is obviously a great deal to think about on the question of whether an agency such as the courts agency should have a statutory foundation. I freely concede that plenty of agencies have no statutory foundation, but that does not mean to say that we should follow that precedent now.

With regard to the terms of the amendment, most people would agree that chief officers of the agency should be responsible for delivery of service in a particular area, with a duty to work closely with the courts administration councils. So much concern has been expressed about the abolition of the courts committees and the substitution of merely advisory bodies that there must be a case, in this particular instance, for having some statutory foundation for the courts agency that would put a particular responsibility on that agency to work closely with the courts administration councils. The Lord Chancellor should also have a statutory duty to pay regard to the courts administration councils, for precisely the same reason—because they are thought by so many people to be a poor substitute for the magistrates' courts committees, which actually had administrative responsibilities.

As the noble Baroness must already fully understand, there is real concern about the disappearance of the magistrates' courts committees. There is a real risk that a courts agency that is not

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accountable to a local courts committee will not have the local expertise and will not take advice from those who do.

The amendment is fully justified, although it may be said to be breaking new ground in giving some statutory foundation to the courts agency. It would allay the fears of so many people that public and local concerns will not always be taken into account by officials of an agency who may present themselves as being very remote, in the way in which the officials of magistrates' courts committees are not remote and clearly take account of local concerns.

Lord Borrie: Several of the points that the noble Lord, Lord Waddington, has helpfully made are covered by Clause 5. Court administration councils will provide recommendations to the Lord Chancellor in relation to the various courts in,


    "the area for which the council is established".

More importantly, from the noble Lord's point of view, the Lord Chancellor in discharging his duty must give due consideration to recommendations.

I do not have a very strong view on the amendment as such. However, this Bill does not seem very different from the many Bills we see which provide that, "The Secretary of State shall do such and such", when in practice, as we all know, that means that, "The officials or executive agencies acting on behalf of the Secretary of State shall do such and such".

The Government have made it known that the noble and learned Lord the Lord Chancellor means to establish an executive courts agency. The duties which the noble Baroness, Lady Anelay, has set out seem to me very reasonable and clear. I should be surprised if we learn from my noble friend the Minister that it is intended that they should be something entirely different.

Lord Mayhew of Twysden: In our earlier debate, I noted that the Minister said that the Bill was not a centralising measure but—I think I heard this right—an opportunity to get real local engagement in the administration of the magistrates' courts. Would that it were so.

I disagree with my noble friend Lord Waddington only to the extent that he says that the amendment breaks new ground. I do not think that it does; I think that it is more accurately described as restoring already broken ground. We had local administration, and still have, in the magistrates' courts committees.

Lord Waddington: All I was saying is that to give statutory foundations to such an agency may be breaking new ground.

Lord Mayhew of Twysden: I accept that. However, the magistrates' courts committees which we currently have and which the Government find unsatisfactory do have statutory authority and backing. The courts agency is to be purely advisory. We do not know, and we are not told because it is to be non-statutory, anything about how it will work or who will be on it.

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As the Central Council of Magistrates' Courts Committees pointed out, that is a circular argument. Having decided that the courts agency is to be non-statutory, the Government then say, "Because it is non-statutory, we cannot include on the face of the Bill how it will work, what its composition will be, what its powers will be and so on". The answer to that is that it does not need to be non-statutory.

This may be regarded as heresy on my Front Bench, but still I shall say it. From time to time I have admired the present Government's commitment to transparency and to local devolvement of power. However, it is anything but transparent to treat the powers of the courts agency that they are about to create as non-statutory and to say, "Not even during the Bill's passage through Parliament shall we vouchsafe what its powers will be". As to local devolution of power, exactly the reverse is being achieved by getting rid of the magistrates' courts committees—which are locally based, locally empowered and locally legitimated—and replacing them with this shadowy substance.

I strongly support what my noble friend on the Front Bench has said in support of Amendment No. 6. I very much hope that the noble Baroness will at least undertake to consider the thrust of the argument. I do not think that anyone is saying that the wording is necessarily perfect, but it is a vehicle for a thought and a concept which seem to me to be entirely valid.

Lord Thomas of Gresford: In the debate on Second Reading, the noble and learned Lord the Lord Chancellor said that he had placed in the Library,


    "a statement on the principles that will form the basis of the agencies framework document".—[Official Report, 9/12/02; col. 15.]

One therefore turns to that document to see whether there is any clarity in it. Far from there being clarity, it is full of precisely the verbiage and jargon about which I was complaining earlier. One favourable view of all this guff is that it covers muddled thinking and indecision. An unfavourable view is that it conceals the Government's intention in regard to the question that we are discussing at the moment; that is, to what degree will the agency be accountable to local views and to local democracy in any way?

The statement of principles that I have before me states:


    "Local areas will be managed by agency chief officers, responsible for the delivery of services in their area. They will work in partnership with the Court Administration Councils, which will bring magistrates, judges and representatives of the local community, and people with knowledge of the court system to the table, to ensure that the agency is focussed on its customers and is meeting local needs".

What nonsense that is. What table? What customers? What is the relationship to be? I continue:


    "We are clear about the key features the agency must have—clear lines of accountability for performance through ministers to Parliament; but with a strong local element—delegation to the frontline, local accountability and flexibility. We made a commitment in the White Paper to producing a blueprint in partnership with our stakeholders".

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Where did this language come from? I continue:


    "That work on the detailed design has started, and involves staff drawn from the Court Service and the magistrates' courts, the judiciary and stakeholders from the magistrates' courts community".

I have never heard of the magistrates' courts community in my life. I have heard of other communities but never that one. It suggests an idea of all the magistrates' courts clustering together to exchange views. That is just a load of nonsense.

In answer to my earlier question, the noble Baroness mentioned magistrates and the judiciary in connection with the term "stakeholders". But who are the stakeholders? I repeat that question. Can we please have a clear statement of what the agency is to do and how it is to work with local people and can we please have that placed upon the face of the Bill?

9.45 p.m.

Baroness Scotland of Asthal: First, I apologise to the noble Baroness, Lady Anelay of St Johns, for not answering in my letter of December two of the issues that she raised. I must confess that I did not notice that we had left out anything. No discourtesy was intended. I am sure that we shall now trawl again to establish the lacunae and seek to plug them.

Baroness Anelay of St Johns: I do not wish to impose further trawling on the Minister and her officials. I shall contact her office tomorrow to let her know which of my amendments already tabled cover those lacunae.

Baroness Scotland of Asthal: I am most grateful. We had hoped to be able to assist noble Lords by that letter and cover the points that had been raised.

I hope also that Members of the Committee will have received a copy of my letter dated 17th January in which I set out, with what I hoped was a degree of clarity, the reasons and need for change, how the proposals were developed, comments about the court administration councils and the alternatives that have been raised, the role of the magistracy in the justice system and consultation. I respectfully invite the attention of the noble Lord, Lord Thomas of Gresford, to that letter in which I set out who the local stakeholders are and those who will be consulted.

Of course, I heard what the noble Lord said in his charming way about guff and nonsense. If I may respectfully say so, the document is neither guff nor nonsense. The provisions are serious stuff indeed for the people who will be subject to them. It is our hope and aspiration that those who will work with us in partnership, and who have worked with us in partnership, will see the fruits of their labour. It does not befit any of us in this Chamber to deride or decry that partnership. Partnership is what it means; that is, working together with the groups who come before the courts, citizens advice bureaux, all those who work in the courts and courts' users by whom I mean representative groups together with members of the judiciary, members of the magistracy, members of the legal profession and all of those who regularly use the

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courts. It is their view on which we have had the privilege to rely, to try to fashion something of utility for the citizens of our country. I would not describe it as guff.

I shall speak to the amendment with which we are seized this evening. Consistent with our intention to establish an executive agency to carry out the day-to-day running of the courts, the annual report of that agency will be laid before Parliament to satisfy the requirement in the clause. The annual report will give information about the business of all the courts, and will for the first time present performance information about the magistrates' courts and the Crown Court in a single annual report, available for public and parliamentary scrutiny. It will also include corporate information about the agency itself.

I shall reiterate the point to reassure the noble Baroness about our intentions. I hope that she will find that the amendment will not be necessary. The clause is in line with Section 1(12) of the Courts and Legal Services Act 1990, which currently requires the Lord Chancellor to report on the business of the courts, and under which the Court Service annual report is laid before Parliament.

I commend the comments made by my noble friend Lord Borrie. If I may respectfully say so, he was absolutely right in how he responded to the noble Lord, Lord Waddington, in terms of Amendment No. 6, to which I shall move.

I am grateful to the noble Baroness for tabling the amendment. It captures accurately the arrangements that we intend to establish by administrative means. I do not object at all to her pinching them from our letters, which simply shows that we are of one mind. An executive agency will be headed by a chief executive, who will be accountable to the Lord Chancellor for the day-to-day running of the court administration. Local chief officers in each management area are to work in partnership with the local court administration council. For the avoidance of doubt, when I say partnership I mean working together and listening to one another. There will be clear procedures for making decisions about the court estate, decisions that are so important to users of the courts, and published guidelines will set out the requirements of good governance.

We agree, therefore, with the spirit of the amendment, but we do not believe that the details are necessary, or appropriate in primary legislation. If, however, Members of the Committee require further reassurance, we will give further consideration as to how that might be provided. We would, for example, be happy to debate the arrangements for the new agency when they have been developed further, if parliamentary time allows.

Let me comment on each subsection in turn. First, I shall deal with the obligation to establish an agency. Executive agencies are not creatures of statute. We have 127 UK agencies, none of which is a creature of statute. For instance, National Savings, Wilton Park conference centre, the Debt Management Office and the Benefits Agency—an agency of some considerable

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size—are not based in statute. A statute-based agency would depart not in a small way, but very greatly from all common practice. The noble Lord, Lord Waddington, was himself doubtless responsible for setting up many of those agencies. What he said about the fact that we will be departing from common practice was well said.

When such agencies act, there is in law no delegation because the official's act or decision is constitutionally that of a Minister—the Carltona doctrine, as it is known. That is why the duty to give due consideration to the views of councils is imposed in Clause 5 on the Lord Chancellor, although in practice, as I have explained, councils will work, as other Members of the Committee said, with local civil servants.

The new agency will be headed by a chief executive—a civil servant—who will be accountable to the Lord Chancellor for the performance of the agency. The amendment requires that the Lord Chancellor consults with persons having appropriate knowledge of the work of the courts before appointing a chief executive. There are established procedures for the appointment of senior civil servants which include consultation with interested parties. The appointment will also be governed by the Civil Service Commissioners' Rules, which require that a commissioner sit on the selection panel.

The amendment requires that agency chief officers be appointed to manage the courts in local areas and that those chief officers should be under a duty to work in partnership with the court administration councils. Local chief officers will, under Carltona, be under the same obligation as the Lord Chancellor: to give due consideration to the recommendations of the councils. In practice, they will work in partnership with them but—


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