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Lord Bassam of Brighton: With the greatest respect to the noble and learned Lord, I must say that it would be a foolish Lord Chancellor who failed to consult. At this stage in these proceedings, we cannot legislate for every future Lord Chancellor and everything that he or she might do. However, we have well established, entrenched practice, which has served us well. Future Lord Chancellors would be ill advised to depart from good, well established practice.

Lord Clinton-Davis: My noble friend will correct me if I am wrong, but, as I understand it, he is conceding that the Lord Chancellor engages in such practices now. What is wrong with including the requirement in the Bill?

Lord Bassam of Brighton: We want to ensure, particularly in creating CACs, that we have the broadest possible opportunities to consult. If we put something in the Bill along the lines of what has been suggested, we may limit our flexibility and close down opportunities to consult those whom we need to consult.

Lord Clinton-Davis: Then, why cannot my noble friend include in the amendment after the words "the Vice Chancellor" something to the effect that the Lord Chancellor may consult such other persons as he deems appropriate?

Lord Bassam of Brighton: Such matters are probably best left to guidance, and the framework document will set out that guidance. It would be more appropriate for us to ensure that consultation arrangements are properly addressed in the framework documents. That is something for the future, but I can give an assurance that those matters will be dealt with directly in that document.

Amendment No. 12 would require the Lord Chancellor to obtain an order before entering into arrangements for the provision of officers, staff or services under Clause 2(4). The new unified courts agency should have the power to enter into contracts for administrative work in the courts as necessary, so that, for example, agency secretarial and clerical cover can be provided. The agency will consult the unions fully about any more significant proposals to contract out for staff, as opposed to directly employing them. I make that commitment.

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We see no reason to maintain the provision that the Lord Chancellor must make an order authorising himself to do something. As the order currently in force is in the broadest possible terms, there would be no difference in outcome from that in the existing legal position. Moreover, the Bill specifies that some activities and posts will not be contracted out—justices' clerks, fines officers and officers and staff who discharge functions that involve making judicial decisions or exercising judicial discretion. We have specifically ruled out certain posts from the effects of contracting out.

We are aware of the concerns that the trade unions raised during the preparation of the Bill and their concerns about the ending of the requirement to make an order. I repeat our undertaking that we will discuss those matters further with the unions and, quite properly, report back to your Lordships' House.

I hope that, with that full response, the noble Baroness will feel able to withdraw her amendment.

Lord Thomas of Gresford: I take from the noble Lord's reply that the Government have not done the sums, do not know how much the reforms will cost and cannot introduce them until they have worked out the sums. If it so happens that the Government can balance the books only by contracting out services, they will do that and keep people off the pension fund. Finally, the Government do not want the judges interfering with the Lord Chancellor's ability to do that. That is what the noble Lord has told us in the past 10 minutes. I have the gravest fear that, if that is what happens, there will be considerable trouble among the administrative staff not just of Crown Courts but of magistrates' courts and county courts.

Baroness Anelay of St Johns: I begin by thanking my noble friend Lord Renton for his defence and support of the amendment. First, I turn to my Amendment No. 9. I thank the Minister for his helpful response; although, I am not sure how helpful it was to other noble Lords who have amendments in this group. The Minister has shown clearly that the noble Baroness, Lady Gibson, is right. Clause 2(4) allows the expansion of contracting out in the future. The Minister assures us that there are no plans systematically to expand contracting out. But, as the noble Lord, Lord Thomas of Gresford, said, the potential is there.

I consider that there may be good reasons—I may be on the Government's side for once—at some future stage for contracting out. Where we all agree is that we would consider them good reasons only if there had been proper consultation. I agree entirely with the noble Lord, Lord Clinton-Davis, with regard to the importance of consultation being up front and clear in the Bill. We shall need to look at that issue further.

The Minister said, "Ah, well, yes, we need flexibility on this", but one person's flexibility in management is another person's fracture. We do not want a fractured management. Certainly, at this stage, I shall withdraw the amendment, but it may not be the end of the story.

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Amendment, by leave, withdrawn.

[Amendments Nos. 10 to 12 not moved.]

Lord Goodhart moved Amendment No. 13:


    Page 2, line 16, at end insert "(including the functions of a fines officer)"

The noble Lord said: I hope that Amendment No. 13 is unnecessary. Clause 2(5) rightly excludes the contracting out of judicial functions. The fines officers are a new form of officer with a duty to improve the collection of fines. I welcome that. Under Schedule 2, a fines officer has powers which clearly appear to be judicial: the power to vary a collection order, under paragraphs 7 and 11; possibly the power to determine the amount of an increase, under paragraph 9; and the power to issue a warrant, make an attachment order or a clamping order, under paragraph 13. Will the Minister assure us that these are regarded as the exercise of a judicial discretion or the making of a judicial decision? If that is the case, it would therefore be clear that the role of fines officer could not be contracted out, which we think is correct. If that is not so and if the role of fines officer could be contracted out to someone who was not a direct employee of the Lord Chancellor, that would be a matter of great concern to us. I beg to move.

Lord Jones: I speak with diffidence, following the noble Lords, Lord Goodhart and Lord Thomas of Gresford. It is clear that we must give full support to the collection of fines imposed by the court—not to do so would countenance the collapse of the entire system. However, there is concern among magistrates that fines officers will have the power to vary a fine without reference to the magistrates who impose them. That could surely undermine the validity of the sentence passed by the court.

Will the Minister consider that point in his response to the debate? Many magistrates would be grateful for a considered view of a matter that greatly exercises them. I know for sure that that is the case in north-east Wales. What checks will there be? What will be done to monitor this scene? How will the fines officer be responsive in all of this? On what grounds will a fines officer vary the fines of magistrates? Is there guidance other than in the schedule and in Clause 31? What links will there be between the magistrates and the fines officers? I was impressed by the point made by the noble Lord, Lord Goodhart, and I hope that the Minister will respond.

Lord Donaldson of Lymington: I had not expected to be in a position to raise this point. At Second Reading, I expressed doubts as to whether the position of the fines officer was compatible with the European Convention on Human Rights. The noble Baroness, Lady Scotland, was kind enough to write to me—stupidly I have left the letter behind—giving the Government's thoughts on this matter. If I have it wrong in recollection, I hope that she will correct me.

My recollection is that, in part, the fines officer will not be acting in a judicial capacity, but merely enforcing decisions already made by the magistrates'

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court. So be it. However, in part, the letter stated that the fines officer would be acting judicially in providing different remedies for collection of fines. It stated that that would be acceptable because there would be a right of appeal to court. I can see the noble Baroness nodding; perhaps my recollection is not far wrong.

Frankly, I was taken aback by that answer. If that is right, we can abolish the independence of the High Court, because there is always an appeal; we do not have to bother about the circuit court, because there is an appeal to the Court of Appeal; we do not have to bother about vast tranches of courts which no longer need to be independent and impartial and qualify under the European Convention, provided there is an appeal to a tribunal court which does qualify. I cannot believe that I understood the noble Baroness's letter correctly; or alternatively—I hesitate to suggest this as an alternative—that she understands the European Convention correctly.

Baroness Anelay of St Johns: Amendments Nos. 64 and 65, standing in my name and that of my noble friend Lady Seccombe, directly approach the point raised at Second Reading by the noble and learned Lord, Lord Donaldson. As a result of hearing and subsequently re-reading his speech, I decided to draft the amendments. The noble Lord, Lord Jones, has raised an important but wide issue. I do not believe that it would be helpful to the Committee if I rehearsed some of the arguments that will be put in detail later by my noble friend Lady Seccombe.


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