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Lord Waddington: Can the noble Baroness help me with regard to Clause 4(6)? It states:

It is the constitution that I am worried about. Will we in Parliament have knowledge of that guidance?

Baroness Scotland of Asthal: We are very sensitive to what a number of Members of the Committee have said about the need to look at the guidance. We are taking it back and investigating what opportunities there may be for scrutiny. We certainly understand the need that has been expressed both today and previously. It is important that Members of this place—and perhaps eventually Members of another place—have a much better and clearer idea of exactly what will go into the guidance. We will try to do that as best we can.

Baroness Anelay of St Johns: I am grateful to the Minister for answering my concerns about Clause 4(4). She directed me, very properly of course, to subsection (7), to which I was going to refer in later debates. The difficulty is that that subsection could inspire the very fear that she was rightly trying to allay. It could be alleged that subsection (7) is a way of getting round the minimum set in subsection (4). However, I do not seek to take the issue further now. I think that she and I are trying to reach the same objective. I am just not convinced that the current drafting helps to take us there.

Baroness Scotland of Asthal: I think that it does help. Earlier, the noble Baroness expressed the tension as follows: what if we do not have the minimum number and this provision is cited? We are confident that all the councils will have at least one judge, one magistrate and the other minimum numbers for which we have provided in paragraphs (a) to (d). It is likely, however, that a number of councils will have more than one of each. The expectation is that a great number of them will have more than one.

Subsection (6) sets out the guidance that may include provision about the constitution. That minimum will therefore be preserved. Subsection (7) ensures that, in the event of the circumstances that the noble Baroness, Lady Anelay, outlined—such as a member's death or illness—the council's acts are not invalidated by a short hiatus. That is why I am attached to the minimum; I would not want it to be removed or in any way watered down. Subsection (4) concludes by stating that we may have more than that minimum. In the guidance and other constitutional arrangements, we have an opportunity to state what should happen in the event of a death or similar event in order to make the arrangement valid. Subsection (7) specifically deals with the hiatus.

So it is unnecessary for us to undermine or touch that provision. However, several noble Lords have expressed their anxiety about certainty and we want to give the assurance that there will be no games playing and that

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that will be the least that the councils will have. Of course, we hope that many of them will have many other constituents, dependent on the needs of their area.

9 p.m.

Lord Thomas of Gresford: I listened carefully to the Minister but she has not answered my question. Why is straight appointment by the Lord Chancellor preferable to some form of representation?

Baroness Scotland of Asthal: I assume that the noble Lord suggests that all the posts be put up for election. Perhaps we could have an election by the judiciary. I invite him to think for a moment of the prospect of electing a High Court judge to sit on the matter and how long the college might take to decide on who needs that. It has always been convention that the divisions in the High Court have been able to come to an accommodation on how they allocate judicial time to fulfil such requirements.

The magistrates' courts have had the benefit of the panel. We shall consider the different nature of those whom we want to attract. However, at present, we do not have an election process for all public appointments. I respectfully suggest to the noble Lord that it would be extremely difficult if we did.

Lord Dixon-Smith: I am most grateful to all noble Lords who have taken part in this interesting discussion. It has at its roots the question of ownership of the local consultative council. Will it be a creature of the Lord Chancellor, or will it, as it properly must, be a creature of the local community? I hear what the noble Baroness has had to say. Our difficulty, as the Bill is drafted, is that the council could be interpreted as being the creature of the Lord Chancellor. I am clear about what she said, which is that it must be the creature of the local community. However, this is not a question of who holds the title deeds; it is a much more subtle question.

My amendments were intended to enable us to explore that question. We have had a useful debate. The noble Baroness may find it frustrating to have to keep repeating herself, but that is part of the purpose of the operation. Some interesting points have been raised. The noble Lord, Lord Thomas of Gresford, made clear that, if the council is to be effective, its members must have the support of their colleagues in the area. There is a question about how we arrive at that result, but if the council is to have the respect of the area that it is supposed to serve, that is essential. We cannot avoid that.

The noble Baroness said that the Bill ends the requirement of local authorities to fund 20 per cent of the expenditure. I accept that. However, I do not see the relevance of that to the constitution of the court administration councils. Court administration councils will have some local representation but that is not related to the question of funding, as I understand it. It is related to the question of having people on the court administration councils who know the area, who know what is going on, who know what the political—with a small "p"—questions are and who know the political background as a matter of instinct without being necessarily political. In that sense the question of

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expenditure is not relevant. Local authorities in the area of any court administration council will still be stakeholders in the area. If one completely ignores the question of elected members, the matter can become fraught with difficulty.

I heard what the noble Baroness said and will study it with some care. I rather infer from what she said that if I simply tabled an amendment stating what I considered to be the minimum in this matter she would not object to it although she might consider that it was unnecessary. I may be tempted to do that at a later stage. However, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 to 21 not moved.]

Baroness Anelay of St Johns moved Amendment No. 21A:

    Page 3, line 10, after "must" insert "by order"

The noble Baroness said: In moving Amendment No. 21A, I wish to speak also to Amendments Nos. 21B and 22. I can speak more briefly than I had expected due to the helpful intervention of my noble friend Lord Waddington.

These amendments relate to the issuing of guidance. I note that the Constitution Select Committee's report on the Bill drew attention on page 4, paragraph (b), to the procedural requirements for guidance which will be given by the Lord Chancellor under Clause 4 as it stands. The committee's report states that it is not clear whether such guidance is to be binding on the councils, whether it is to be publicly available and whether it may contain specific as well as general directions. I seek to probe the Government on those matters. I have read the response of the noble and learned Lord the Lord Chancellor to the committee. Will the Government give us assurances about what they will do between now and Report as regards considering the way in which these matters may be brought before Parliament for scrutiny?

In the course of the discussion that the Minister was kind enough to hold recently—those who attended were, regrettably, a select few but we obtained good value from the Minister and her advisers—and, indeed, during the course of discussion tonight, the Minister has said that the Government are prepared to consider how they can make the functions of the CACs more clearly subject to parliamentary scrutiny. One way of doing that that was mentioned at the briefing meeting was to refer to the guidance in more forceful terms in the Bill. I refer to issuing the guidance by order. Has the Minister considered that matter further since the briefing meeting? Can she tell us the results of that consideration? Will she undertake between now and Report to consider the matter so that if I were to table an amendment on Report she would be able to respond to it more fully at that stage? I do not propose to take the matter further at this point. I beg to move.

Lord Goodhart: I strongly support these amendments. To some extent the debate we are having on this group of amendments, like the debate we had on the two previous groups, is really a curtain raiser to the major debate

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which we shall have on the next group. That group will try fundamentally to replace the scheme of the Bill by creating the area court management boards, which are intended to fulfil—perhaps rather more than fulfil—the role that we thought was envisaged in the White Paper of the area consultative councils as local management boards. One considers the amendment on the assumption that the amendments in the next group will not ultimately succeed, so one is looking at a situation in which area consultative councils still exist.

If that is so, the amendment would be essential, because the guidance is crucial to the whole operation. Like the noble Baroness, Lady Anelay, I was present at the briefing meeting at which the Government told us about all sorts of their excellent plans for what the court administration councils would do. That came close to what we envisage as a proper role for the local management boards. The trouble is that there is nothing of that whatever in the Bill.

That is a major problem for us. Even if what the Government now propose were carried into effect, nothing would prevent any future Lord Chancellor or Minister of justice from changing the whole scheme and producing something much more subject to central control, with much less local involvement. Therefore it seems essential that, if we cannot manage to get the scheme into the Bill, it should at least be in regulations, which are subject to parliamentary control. In view of the importance of the matter, we believe that approval of the guidance should require the affirmative procedure, as proposed in Amendment No. 21B.

Surprisingly, Clause 4(6) states:

    "The guidance may, in particular, include provision about the constitution, procedure and quorum of the councils".

That quintessentially seems something that one would expect to see in regulations, not merely in guidance. If that becomes material because we are unable to force the Government to put the matter into the Bill, we would regard the amendment as an obviously inferior but essential alternative.

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