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Lord Kirkhill: My Lords, I have two brief observations. First, I congratulate my noble friend the Minister on the comprehensive manner in which he has explained a complicated order.

About 25 years ago I used to stand at the Dispatch Box when I was Minister of State at the Scottish Office. In particular, I guided the then Scotland Bill through your Lordships' House. I recall Mr Hayter even then giving me much helpful advice in muttered asides, as I am sure I frequently blundered badly.

I was a Minister in the Scottish Office for about four years. During that time I do not think that I took through your Lordships' House more than perhaps four Bills in any Session of Parliament. Perhaps there might have been five on one occasion, but it was usually about four. In its brief existence, the devolved Executive has produced and carried about 40 Bills. The question of retained power and devolved authority is, almost by definition, a moveable feast. Those involved in the public awareness of Scottish life would very much welcome the contents of the order.

Lord Evans of Temple Guiting: My Lords, I am extremely grateful to everybody who has contributed to this brief debate. The noble Baroness, Lady Carnegy of Lour, kindly said how clear my statement was. This was a process. I found it difficult to grasp the issue initially. The more questions I asked, the clearer it became to me—and therefore the clearer to everybody else. That is a good thing, particularly from a government who believe in absolute clarity of communication.

The noble Duke, the Duke of Montrose, made a number of interesting points, which I shall attempt to answer. The underlying point goes back to two lines from the order. These matters are part of the ongoing management of the boundaries of the devolution settlement. With an Act as ambitious as the Scotland Act 1998, there will be matters that have to be dealt with. I gather there have been eight order so far and there will probably be others. I hope that any others will be closely argued to your Lordships' satisfaction. In answer to one of the noble Duke's questions, we anticipate that there may be further orders, but at the moment we have nothing in mind.

The noble Duke asked what sort of jobs are excepted under the Rehabilitation of Offenders Act. He sees a moving feast of exceptions. Broadly, the exceptions are those involved with national security, the care of the young and vulnerable—for obvious reasons—the administration of justice, and work in which issues of probity are vital.

The noble Duke, the noble Earl and the noble Baroness all asked whether there were cost implications for the Scottish Parliament. I shall deal first with the question asked by the noble Earl, Lord Mar and Kellie.

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He is very concerned that there are costs that will have to be met by the Scottish Executive, particularly if a cost order were made against a general commissioner. I reassure the noble Earl that the legislation the order brings into force in Scotland makes exemptions where bad faith is proved or if a general commissioner is involved in a trial as a result of a matter arising from his duties. The Scottish Executive, which would be liable if a costs order were made, would not, therefore, be punished for the misbehaviour of the general commissioner or his clerk. I should also point out that that applies only to the senior people and not to the more junior commissioners.

On the question of transport, I, too, read the discussion in the House of Commons Hansard about ferries and ships going here, there and everywhere. I am assured that there is no hidden agenda as regards that part of the order. As I said in the statement, the aim is simply to make roads in Scotland less congested by encouraging freight carriers to ship freight rather than drive on crowded Scottish roads in vast lorries.

I believe that I answered the question on costs posed by the noble Baroness, Lady Carnegy of Lour. However, she shakes her head. She was kind enough to warn me that she intended to ask that question. Therefore, I obtained information on the cost predictions for each section of the order. The principal cost arises from the freight facilities grant. The Scottish Executive is content with the arrangements. Funding will be met from existing resources within the assigned budget. The Scottish Executive advises that by 2005–06 the SFG budget will be 15.4 million. The Government do not envisage any significant costs arising from other parts of the order other than normal administrative ones. There have been no cost orders against general commissioners in the past so we do not envisage anything of substance in that regard in future.

I believe that I was asked about costs in the Scotland Office. I am advised that the Scotland Office can take on the additional work with no additional costs being incurred.

Baroness Carnegy of Lour: My Lords, I am grateful to the noble Lord for giving way. I asked whether there would be a deliberate specific transfer via the Treasury of the Scots block from Westminster to the Scots Parliament for matters such as those we are discussing. The Scotland Office considers that it can cover the work but has thought been given to what will happen when the changes are made and the burden is moved? I see that the noble Lord, Lord McIntosh, is present. He knows all about the Treasury. Perhaps he can help in this matter.

Lord Evans of Temple Guiting: My Lords, I answered that question by saying that any cost would be accommodated within existing resources. There will be no new money as a result of the order other than the moneys in relation to transport.

The Duke of Montrose: My Lords, I did not ask whether costs would arise within the department the noble Lord represents. I foresee costs arising when

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people inquire about previous convictions. I do not know to whom those questions would be addressed. But one can foresee an increasing flood of such questions and that may require extra resources being made available.

Lord Evans of Temple Guiting: My Lords, I am advised that there will be no increase in net resources. It is anticipated that these matters can be dealt with through the existing structures with no additional staff and no additional money being required.

On Question, Motion agreed to.

Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do adjourn during pleasure until 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.5 to 8.25 p.m.]

Courts Bill [HL]

House again in Committee on Clause 59.

Baroness Anelay of St Johns moved Amendment No. 86:

    Page 28, line 23, at end insert—

"and have regard to their recommendations made as a consequence of that consultation"

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 142.

The clause states that the Lord Chancellor can make changes to judicial titles, as we were discussing earlier, only if he has first consulted the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the vice-chancellor.

The amendment is a simple probing amendment, as it asks what would happen if those people disagreed with the Lord Chancellor. What regard would he then have to their views? The amendment is merely a convenient peg on which to hang the question to the Government.

Amendment No. 142 is exactly the same kind of probing amendment with regard to Northern Ireland and judicial titles there. I beg to move.

Lord Borrie: My understanding is that there is a statutory requirement to consult; the noble Baroness will no doubt be pleased that the provision states that the Lord Chancellor "must" consult. When there is a statutory requirement to consult X and Y, that surely means genuine consultation in which the consultees are given precisely the information that they need in order to say something sensible in response. Their comments and recommendations would be properly considered. That is what consultation means.

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In other words, the Lord Chancellor has regard to what the consultees say. Of course, that does not mean that he has to agree with it, but he must have regard to it. In short, it therefore seems that amendment is quite unnecessary.

Lord Waddington: I certainly agree with the noble Lord, Lord Borrie, that there is no point in consulting if, when one has consulted, one does not pay the blindest bit of attention to what comes out of the consultation exercise. I am sure that we would all agree with that. One would like to think that the amendment is entirely unnecessary, as he suggested. One would like to think that the Lord Chancellor, having consulted, would have regard to the recommendations that he received. I am sure that we are all at one in that. Unfortunately, history is not on the side of the noble and learned Lord the Lord Chancellor. He does not have a good track record.

I am sorry to bore the noble Baroness, but I still think that the matter is very important. There was consultation over the appointment of magistrates in the county palatine of Lancaster. At the beginning of 2000, an elaborate consultation procedure was launched and an enormous number of people of great importance in the county palatine were consulted: the 15 Members of Parliament in Lancashire; the 28 Members of Parliament in Greater Manchester; the 16 Members of Parliament in Merseyside; the leaders of the Lancashire County Council, the Blackburn with Darwen Borough Council; the leader of the Blackpool Borough Council; the leader of goodness knows how many other local authorities in the area; the vice-chancellor of the county palatine; the presiding judges on the northern circuit; the northern circuit judges; the resident judges in each Crown Court centre in the duchy area; honorary recorders; and the attorney-general of the Duchy of Lancaster. One can go on and on until one comes to the really humble people at the bottom of the list: former chancellors of the duchy and life Peers who have associations with the duchy area.

That is where I come in and that is why I know the whole story. A great consultation exercise was launched and the result was an almost unanimous thumbs down to the proposal that justices of the peace should be appointed by the Lord Chancellor in the duchy area, rather than as had been the case for hundreds of years, by the chancellor of the duchy. The Lord Chancellor has not paid the blindest bit of attention and, regardless, has incorporated in the Bill an amendment that reverses the result of the consultation procedures that were undertaken in such detail in 2000–01. The case is made for Amendment No. 86.

8.30 p.m.

Baroness Scotland of Asthal: I regret to say to the noble Lord, Lord Waddington, that I disagree that the case is made for Amendment No. 86. We respectfully suggest that this amendment is not necessary. As I said earlier, in relation to consultation the court has made absolutely clear the proper interpretation that that phrase should be given. I respectfully agree with the noble Lord, Lord Borrie. Lord

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Justice Simon Brown in Devon County Council ex parte Baker (1995) (All England Reports 73, page 91) drawing from earlier authorities, described the requirements of consultation thus:

    "that the product of consultation must be conscientiously taken into account in finalising any . . . proposals".

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