Courts Bill [Lords]

House of Commons, 20 October 2003.

New Clause 2 — Judicial Independence

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move, That the clause be read a Second time.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to discuss the following:

New clause 4—General duty—

'The Lord Chancellor and the Department for Constitutional Affairs are under a general duty to preserve and maintain the independence, impartiality and integrity of the judiciary and the lay magistracy.'.

Amendment No. 1, in page 1, line 5 [Clause 1], leave out 'and effective' and insert ', effective and accessible'.

Amendment No. 48, in page 1, line 10, leave out 'and'.

Amendment No. 49, in page 1, line 10, at end insert

', and that there is at least one magistrates' court in every local government area in the United Kingdom (at least one within every borough and district council area in England and Wales)'.

Amendment No. 50, in page 2, line 2, at end insert

'which must include a report on the operation of this legislation and must contain a report by analysts independent of Her Majesty's Government about how the changes brought about by this legislation and other changes since May 1997 have affected the accessibility of courts to court users.'.

Amendment No. 55, in page 44, line 14 [Clause 92], at end insert—

'(3A) The Lord Chancellor may not under this section prescribe fees which seek to recover—

(a) the costs of judicial salaries; or

(b) the notional cost in use of heritage buildings.'.

David Heath (Liberal Democrat, Somerton and Frome)

At the first sitting of the Committee that considered the Bill, I said that the first group of amendments that we were debating went to the crux of the Bill and dealt with the key issue for many Committee members—the accessibility to justice that is conferred or denied by the Bill. The present group of amendments goes even wider and deals with three key issues that will be encapsulated in our debates this afternoon. First, there is the issue of judicial independence; secondly, physical accessibility to justice; and thirdly, financial accessibility to justice. I shall deal with each issue in turn.

The issue of judicial independence is encapsulated in new clause 2, as well as new clause 4, which was tabled by the hon. Member for Surrey Heath (Mr. Hawkins). Without wishing to be too pompous about the issue, there is a fundamental constitutional arrangement that we would be unwise to dislodge. There are three pillars of democracy—the Executive, the legislature and the judiciary—and our democracy works best when each not only preserves its identity but maintains its independence from the others. Indeed, although it has never been written in our constitution because we have no written constitution, it appears in the constitutions of countries with similar jurisprudence. It was clearly enunciated, for instance, by the founding fathers of the democracy of the United States—John Adams could not have been plainer in what he said on the issue.

When we are talking about the independence of the judiciary, we are not talking about some supposed freedom from criticism that the judiciary ought to enjoy. It is entirely proper that occasionally both the legislature and the Executive have the opportunity to criticise the court process. Indeed, people who say that politicians should have nothing to do with the structures of the judiciary are wrong, as that is essentially a political issue. However, we must be sure that the judiciary is independent in its actions, decision making and the way in which it operates. If those dividing lines begin to be blurred, it is too easy for an Executive to exercise an unhealthy influence on the judiciary. It is probably unfashionable to quote Plato, but he said it all in "The Republic":

"What I say is that 'just' or 'right' means nothing but what is in the interest of the stronger party."

The stronger party will always be the Executive if left to its own devices, which is why we hold the judiciary's independence to be important.

Friction is to be expected—there will always be times when the judiciary takes a different view from the Secretary of State, and the Secretary of State must accept that. Some do so with good grace, and some do so with rather less than good grace. Although I am not the greatest fan of Lord Irvine, I believe he did a good job of preserving that view of the independence of the judiciary, both in Cabinet and elsewhere. In evidence that he gave to a Committee of this House, he said that

"maturity requires that when you get court decisions you favour, you do not clap and when you get a court decision which is against you, you do not boo."

He was right. He did not refer to the Home Secretary by name, so one cannot assume that he had the Home Secretary in mind. Nevertheless, there is a clear dictum there that is worth underlining.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

My hon. Friend may have noted that although we were able to elicit those words from Lord Irvine in Committee, we had difficulty in getting anything quite so strong out of the current Lord Chancellor when we put the same questions to him, hoping that he would be as robust in his response.

David Heath (Liberal Democrat, Somerton and Frome)

Not for the first time, my right hon. Friend goes to the heart of the matter. The changes in the Department, not just in personnel—it is unhealthy to personalise the matter too much—the changes in the way that the Department works, and particularly the changes that are envisaged, such as the removal of the position of Lord Chancellor and the moves towards a new Department, mean that there are far fewer protections than there have been up to this point. Up to now, however unsatisfactory it has been, we have had a Cabinet Minister who was also a member of the legislature and the head of the judiciary, and could make that point repeatedly if the judiciary was under attack from other Ministers. In future that will not be the case unless we do something to replace the present situation. There is a lacuna in the make-up of the Cabinet that needs to be filled.

Some may hope that that will be done not in the Cabinet but outside, by the Lord Chief Justice. Lord Woolf is doing a remarkably good job of maintaining that position. So adamant is he that he will protect the position of the judiciary that he has delayed his retirement expressly for that purpose. Having said that he learned at "a very late hour" of the significant constitutional changes that the Government have put in train, he feels it is his duty as Lord Chief Justice to ensure that judicial independence is protected, and that the quality of justice for future generations is protected. I agree with him, but I do not believe that that can be done entirely from the position of the judiciary outside Government. That is why the new clause is so important.

The Government accept that there is a risk of the principle of judicial independence being eroded. They made reference to it in the consultation papers that they issued. They said that there is a question that is properly asked, and I accept that. I want to make clear our reply to that question, which is that there is a need for a statutory basis for judicial independence, and that the Bill is as good a vehicle as any to establish it. I hope that the Minister will respond in kind to that before we consider very important legislation in the next Session dealing with the setting up of the Supreme Court and the process for taking judicial appointments away from the Lord Chancellor.

John Bercow (Conservative, Buckingham)

I am working on the assumption that new clause 2 is a probing clause, notwithstanding the legitimate and good intentions that underlie it. On the strength of the Government's track record to date, does the hon. Gentleman fear that the likely response will be for Ministers to profess their support for the principle of the independence of the judiciary in general, while in practice failing to observe it in the particular?

David Heath (Liberal Democrat, Somerton and Frome)

In the latter point the hon. Gentleman is right, but in the former he is not. I am deadly serious about having something in statute that at least attempts to preserve the independence of the judiciary. Indeed, his colleagues clearly feel the same way in terms of the new clause that they have tabled to the same effect.

I have my worries, because as soon as we move away from the specific position of Lord Chancellor to dealing with a Secretary of State—as we know, in the way that British law is constituted, Secretaries of State are interchangeable and there is no specific Secretary of State to whom a duty may be applied, other than the Lord Chancellor—the duty will become a general duty, which I think will be largely ignored. This may be imperfect phrasing, but the principle must be right and it must be one on which the House has a clear view. I hope that it will be expressed later this evening.

I am happy to see that my amendment No. 1 also carries the names of Conservative Front Benchers, which is hardly surprising as we made common cause on the issue in Committee and elsewhere. The amendment deals with accessibility, which has been at the core of almost all our debates on the subject. We had sapient advice from the Select Committee on the Lord Chancellor's Department as to what ought to be in the Bill. Indeed, the wording I have chosen is exactly that recommended by the Committee, which I believe it took from evidence it received from Professor Bridges of Warwick university. I think that it is right.

The amendment deals with a general duty of ensuring not only that courts are simply "efficient and effective", as the Bill says, but that they are accessible to the people who need access to them. The words "efficient and effective" are good in themselves, but they can disguise a multitude of sins. As I said in Committee, it would be efficient and effective to have a single court, which would run at a low unit cost. It would not, however, be accessible to most of our constituents and it would not be in the interests of justice.

The Government's response throughout has been to point to clause 30, which deals with the accessibility of courthouses, and the amendment that, with whatever degree of reluctance, they accepted from another place. I shall be clear about this: I accept that that is a major advance. The Government tried desperately to prevent it in the Lords, despite the fact that they are now saying that it is the best thing since sliced bread. They did not want it in the Bill because they know, as I do, that throughout the country courthouses have been closing year after year. I have to say, however, that that happened not only under this Administration but under the previous one.

What is the effect of those courthouses closing? First, people feel more and more remote from the criminal justice system. Secondly, particularly in rural areas such as mine and in small towns throughout the country, they feel that neither the police nor any other aspect of the criminal justice system has any interest in them any more. Furthermore, it will make for extra expense and inconvenience for everybody who has to use the courts—whether that be defendants, witnesses, the probation service, the police service or solicitors, who are finding it increasingly difficult to recruit to local criminal practice—other than those who run them. An additional and perverse effect will be that where police officers are required to escort prisoners they will be taken out for long periods from the local areas where we all want to see them policing. That is unfortunate.

The Government's view is that once courthouses have been dealt with, the whole problem has been dealt with. I disagree, because there is a lot more in the Bill where accessibility ought to underlie the position of the Lord Chancellor and the Department. For instance, it would be possible to maintain a courthouse and not hold a single sitting in it. That would be ludicrous, but we have seen similar things happen on the railways, where services are maintained but not advertised so that they can eventually be closed. It is quite likely, however, that major cases will be consistently moved to more and more distant courthouses. I believe not just that the geographical position of courthouses should be maintained, but that courts should hold convenient and regular sittings. Amendment No. 1 provides for that general duty of accessibility.

Another point made in Committee—a valid point, I think—was that some courthouses might be accessible in geographical terms but not accessible in terms of structure to some people. My amendment would ensure that what is now the Department for Constitutional Affairs had an interest not just in maintaining the existence of courthouses, but in bringing them to a standard appropriate for the administration of justice, particularly in rural areas. I believe that all Opposition parties support the amendment. I shall listen carefully to the Minister's response, because we may well wish to press the amendment to a Division later.

Amendment No. 55 deals with fee structure and with financial barriers to justice. An extraordinary arrangement introduced not by the current Government but by their predecessor, by stealth, has had insidious effects. Under that arrangement, civil court fees should recover the full costs of the proceedings. That has never been publicly announced as a policy, and the House has never been asked to adjudicate on it. At one stage it was axiomatic that the state met the costs of judicial salaries and court accommodation; fees were not a product of the costs incurred in the administration of justice. I am very concerned about the change, which presages a vicious spiral in costs that will eventually deprive many people of fair process.

I am not alone in that view. My amendment is very similar to one suggested by the Law Society, which rightly takes the matter extremely seriously. It says that the policy of full cost recovery has placed considerable pressure on court fees, which have risen by about 12 per cent. in the past three or four years—about double the rate of inflation. Nor does the arrangement provide enough cash for the courts; the civil courts are still experiencing a great deal of difficulty.

Full cost recovery would be fine if—a big "if"—it were held that the court system in civil cases was there purely for the good of those involved in the proceedings, but I do not believe that to be the case. I believe that there is a common good in providing justice and mediation in such cases. That is the traditional view, held by most English-speaking jurisdictions. This policy is clearly Treasury-led: I cannot believe that any Lord Chancellor initiated it. What can be done to ameliorate it? My amendment provides for two major exceptions.

The first exception relates to judicial salaries. It is nonsensical that we should seek to recover the salary costs of the judiciary through court fees. That is a non sequitur—it is inappropriate and we should finish it. Secondly, there is the notional cost of heritage buildings. It will not have escaped hon. Members' notice that many of our court buildings are rather fine and are often in very expensive parts of the cities that they serve. We have only to look at the Royal Courts of Justice to see the apotheosis of high architecture in the court system. It is an enormously expensive listed building with huge maintenance requirements to keep it in the style in which English Heritage believes that it should be accustomed. Those costs are loaded on to the court fees that are applied. That is ridiculous. The average litigant, if asked to give their opinion on the appropriate venue, would say, "The cheapest hut that you can find, m'lud, because that will reduce my court fees." I do not advocate that because some court buildings are fine buildings that are well suited to their purpose, but the notional cost of their usage that the Treasury works out should not be recovered from people who are seeking justice. My proposal is a sensible compromise—it is a compromise because I do not believe that there should be any linkage between costs and fees—that would at least take out some of the most unacceptable parts of the calculation of recovery costs.

This group of amendments addresses three basic principles: first, judicial independence, because nothing could be more important in constitutional terms; secondly, the physical accessibility of courts, because nothing could be more important to many of our constituents who find themselves deprived of a courthouse within easy reach of where they live; and thirdly, financial accessibility, because it is a fundamental principle that no one should be deprived of justice simply because they cannot afford to go to court to establish the rightness of their claim. I look forward to the Minister's response.

Nick Hawkins (Conservative, Surrey Heath)

As the hon. Member for Somerton and Frome (Mr. Heath) said, our parties made common cause on several issues in Committee, and we do so again today. As well as commenting on the Liberal Democrat new clauses and amendments, I shall discuss those that we have tabled.

I join the hon. Gentleman in his appropriate tributes to the continuing work of the Lord Chief Justice in standing up for judicial independence. I agree with the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who is Chairman of the Select Committee on the Lord Chancellor's Department, that the present Lord Chancellor appears to be not as robust a defender of that crucial principle as was his predecessor. I agree with the hon. Member for Somerton and Frome that there is a gap in the Cabinet in terms of fighting for judicial independence.

The issue goes beyond judicial independence. We are concerned, too, about the independence and impartiality with which the Government will treat the lay magistracy. Our new clause 4 therefore goes a little further than the Liberal Democrat new clause by proposing that the Lord Chancellor and the new Department for Constitutional Affairs should be

"under a general duty to preserve and maintain the independence, impartiality and integrity of the judiciary and the lay magistracy".

Are we right to be so suspicious about the Government? We have every ground to be suspicious, not only because of such matters as the hon. Member for Somerton and Frome rightly talked about—the closure of courthouses and other interferences, and the Home Secretary's regular levelling of criticism, in public print, of judges—but because of the way in which this Government have approached other senior appointments in recent times. In particular, I want to draw attention to the recent, rather bizarre, choice of the new Director of Public Prosecutions. It has caused great concern at all levels of the legal profession, particularly among criminal practitioners to whom I have spoken, that a senior barrister—albeit of undoubted ability—whose whole career has been based on criminal defence work has suddenly been appointed as the new DPP. There is also great concern that more than an element of cronyism might be involved in that appointment, given the chambers from which that gentleman came.

It is strongly felt—not only by us, but by practitioners of many political persuasions and of none—that many more highly qualified people with experience of prosecutions should have been considered for the post of DPP, ahead of the person whom the Government chose. Of course, it subsequently being revealed that the new DPP had a serious criminal conviction for drugs offences—albeit from a long time ago in his youth—was also a matter of grave concern. Sufficient question marks exist for that appointment not to have happened. The possibility that such things might happen in future reinforces the need for the Bill to include a protection for the independence, integrity and impartiality of the judiciary and of the lay magistracy. Of course, we do not disagree with the Liberal Democrats' new clause 2, but our new clause 4 is certainly more far-reaching. I hope that the hon. Member for Somerton and Frome agrees that either new clause would be an improvement on the Government's current drafting—[Interruption.] I am glad to receive his assent to that proposition.

The Government have closed many courthouses—more than 100, according to the answer to my last parliamentary written question on the matter. The Minister will say that courthouses were closing under the previous Government, which is of course true, but that does not justify yet further closures. As the hon. Member for Somerton and Frome rightly said, as a result justice is becoming less local and less accessible. We debated this matter extensively in Committee, but it is worth ensuring that such important points are made again today in this Chamber. Often, commentators and reporters pay far too little attention to what happens in Committee; more notice is taken of what is said on Report and on Third Reading. We have become too used to Ministers trotting out the same tired cliché: that magistrates courts committees are taking decisions on court closures. As we pointed out in Committee, MCCs have been so boxed in by Government guidance that, in effect, such guidance is forcing court closures. That is happening because the Government do not value the local element of justice sufficiently highly.

During the past few years, we have heard at parliamentary questions many examples of the effects of court closures. In a highly publicised case in rural Wales, a defendant had to walk to court because the courthouse in which his case might have been tried many years ago had been closed, and there was no effective public transport. The case came to prominence when the defendant received a more lenient sentence because the court felt that, in the absence of public transport, he had made valiant attempts to get to court, walking some 30 miles. I agree very much with the forceful words of the hon. Member for Somerton and Frome that we must return to the basis of local magistrates, with knowledge of their local area, making judgments on cases.

Our amendments Nos. 48, 49 and 50 are intended to introduce into the Bill a mechanism to ensure that we have local justice again. There should be a magistrates court in every local authority. My local authority has just lost its last one, and it is wrong that a town the size of Camberley—the main town in my constituency—and a local authority the size of Surrey Heath should no longer have a single magistrates court between them.

The hon. Member for Somerton and Frome said that his suggestion that courthouse buildings might stay open but not be used might be far-fetched, and drew a parallel with railway lines that were theoretically open, but the service never publicised. However, with the last remaining courthouse in my constituency, the Government did precisely what he is worried about. Technically, the courthouse at Camberley remained a courthouse, but it was not used for some time—more than a year, I think—before a closure decision was finally announced. What the hon. Gentleman suggested is already happening, so his example was not far-fetched at all. Our three amendments, taken together, will introduce a proper safeguard so that there are no more magistrates court closures than are absolutely necessary.

Amendment No. 50 would also ensure that there was a proper check on how the legislation is working. I have already said that there are good reasons not to trust the Government on such issues, and in the amendment I have sought to ensure that in future a proper analysis is made. This is a Government of constantly fiddled figures in every area, from health to education and from law and order to transport, so we need a completely independent analysis, unconnected with Her Majesty's Government, in the form of a report back to the House—and, undoubtedly, the incoming Conservative Government after the next election will need to correct the errors.

We agree with the Liberal Democrats' amendment No. 55 on judicial salaries, although as it was tabled quite late, as were some of ours, we did not have the chance to add our names to it. I strongly agree with the views of the hon. Member for Somerton and Frome both on judicial salaries and on heritage building costs. As he rightly says, even now, with increases in court costs well above inflation, imposing an enormous strain on practitioners and their clients, the civil courts in particular still have problems, and we are concerned about that.

It is always difficult to predict the future, but unless complete disasters arise as a result of the Bill, it seems unlikely that there will be another major piece of courts legislation for a few years at least, so we ought to take the opportunity offered by the Bill to ensure that issues such as the accessibility of courthouses and the independence of the judiciary and the lay magistracy are dealt with now. Although, as the hon. Gentleman rightly pointed out, in another place the Government were dragged kicking and screaming to agree to an amendment to clause 30, it would be far better for those crucial issues to be dealt with right at the beginning of what will become the Courts Act. Unless that happens, the legislation will be too weak to protect sufficiently the independence of one of the three pillars of our constitution.

There is common cause between the hon. Member for Somerton and Frome and myself on a number of the issues. Our amendments, taken together, go somewhat wider than his and would be even more appropriate. I, like him, will now wait to see whether we hear the same tired old clichés from the Minister, or whether he will address the issues seriously.

George Howarth (Labour, Knowsley North and Sefton East)

I apologise to the hon. Member for Somerton and Frome (Mr. Heath) because I was not in my place for the early part of his speech. Unfortunately, I was travelling on the west coast main line, which has not been at its most reliable today. I shall be brief and focus on new clause 4 and the speech of the hon. Member for Surrey Heath (Mr. Hawkins).

If one reads new clause 4, it is difficult to oppose—rather like motherhood and apple pie. It talks about maintaining

"the independence, impartiality and integrity of the judiciary and the lay magistracy."

What I find disturbing about the speech made by the hon. Member for Surrey Heath—and, to some extent, disturbing about what I heard of the speech of the hon. Member for Somerton and Frome—is the complacency of it all. It is as though everything is working wonderfully, and all we have to do is maintain the integrity of the judiciary and the lay magistracy so that everything will be okay. I have to say that, if the experience of my constituency is anything to go by, it is not all going very well.

I provide one small example to illustrate my point. Obviously, I shall not mention any names because court cases may still be pending. A young man in my constituency, aged 15, is on an antisocial behaviour order. Strictly speaking, it is an interim ASBO. He is a one-child crime wave, which is the tabloid way of describing it. Frankly, he represents considerable and dangerous aggravation to people living in the area: people are intimidated and afraid. Because of this young man's activities, one block of flats may have to be pulled down.

This young man was put on an interim ASBO, but he breached it on five occasions and was taken back to the magistrates court, which then decided to release him, causing outrage to constituents living in the vicinity of where he lives and carries out his activities. His solicitor then took the case to the Crown Court and had the conditions of the ASBO, which included the stipulation that he should not drive a motorised vehicle, varied, with the result that, for some reason beyond my comprehension, the Crown Court decided to take that condition out altogether. It is in any case an offence for him to drive or take a vehicle without the owner's consent, but why the Crown Court should remove that condition is, as I said, totally beyond me. Subsequently, the young man committed further breaches and was taken to see a judge in chambers to discuss bail conditions. The judge decided that, because they were all public order offences, none of them should carry a custodial sentence. Now that young man is back out on the streets.

The local authority and the police had done much painstaking work in that case, and were utterly shattered by the way in which the courts dealt with it. Such cases are often seen as low-grade street crime and disorder. In fact, whole communities are literally locked into their houses because of such activities, particularly at night. They are not taken sufficiently seriously and I believe that that problem needs to be dealt with.

I have written to the Secretary of State for Constitutional Affairs, not with the intention of interfering in any subsequent court cases, but simply to point out that the system is not working. The truth is that communities feel desperately let down by the judiciary in such cases. If ASBOs cannot take into account a series of otherwise unimportant offences, which create a pattern when put together, the whole point of the legislation—I was a junior Minister in the Home Office when the original legislation was passed—has been missed. If the courts are not prepared to use custodial sentences, when the orders attached to an ASBO are breached, ASBOs are virtually unenforceable. When local authorities and the police do their job properly—as they have done in my area for some time—and take cases to court, but the courts fail to deal with them properly, the failure lies with the courts, not with the local authorities and the police. The hon. Member for Surrey Heath should be a little less complacent in speaking about the courts than he was in his speech a few minutes ago.

Alan Beith (Liberal Democrat, Berwick-upon-Tweed)

The members of the Committee will be glad that both Conservative and Liberal Democrat Front Benchers have taken seriously several points that the Committee drew to the attention of the House earlier, and that we are continuing to pursue them at this stage in the Bill's progress. The issue of judicial independence, referred to in new clauses 2 and 4, did not arise on Report, but it has occupied us since, especially in the light of the constitutional changes announced by the Government that are starting to take effect. I am persuaded that it would improve the Bill to have the duty to ensure judicial independence listed as one of the Lord Chancellor's duties in statute and the Bill provides the opportunity to do so.

I do not claim that the current occupant of the post of Lord Chancellor, the Secretary of State for Constitutional Affairs, is not, in principle, in favour of judicial independence, but I am not convinced that he regards himself as having a uniquely important role in defending it, as his predecessor did. Indeed, over many years, many of his predecessors saw it as part of their constitutional duty as Lord Chancellor. For many of them, it justified the hybrid nature of the Lord Chancellor's role. They felt that as judge and head of the judiciary they were in a better position to defend judicial independence in Cabinet. I agree with the Government that that hybrid role is unsatisfactory in principle, even though many occupants of the position have made it work well in practice. I do not, therefore, oppose the Government's general line of reform, but we are in danger of losing the Lord Chancellor's unique role in Cabinet of standing up for the principle of judicial independence in certain political circumstances that have led Ministers in various Governments to attack judges or to create a sense of insecurity because they have been unhappy with judges' decisions.

The Lord Chancellor's frantic attempts to divest himself of his role to meet some timetable for abolishing the post altogether militate against ensuring that the important jobs that he now does remain provided for in the system in a way that does not dilute them or make them less significant. My hon. Friend the Member for Somerton and Frome (Mr. Heath) mentioned the fact that duties imposed on a Secretary of State are common to Secretaries of State generally, and can be reallocated at will between them. That is how our system of government works. However, that does not apply to the duties of the Lord Chancellor, especially his duty in relation to judicial independence. Therefore, unless some other mechanism is found, the removal of the post puts that duty at risk. Members of the judiciary fear that it will weaken their independence and deprive them of one of the means of asserting it at Cabinet level.

The Lord Chancellor is in such a desperate hurry to remove his role because he has been given a timetable to do so. The original timetable for abolishing the post of Lord Chancellor was between 6 pm and 10 pm on the Thursday that the changes were announced, until it became clear that that was impossible. By 10 pm, we had a Lord Chancellor in place who had to get his wig ready for the following morning's sitting of the House of Lords. It is not a necessary part of removing his role as a judge or as Speaker of the House of Lords that we should hastily remove his duty to ensure judicial independence. At times, the Lord Chancellor seems to be like a stripper with an early train to catch, removing items of clothing—almost literally—as quickly as possible to meet the timetable.

The Lord Chancellor's duty is important and it must be safeguarded. If that means that the post of Lord Chancellor, divested of some of its constitutionally hybrid duties, has to remain in Cabinet for some time to come, what harm would there be? The holding of the post of Lord Chancellor alongside that of Secretary of State for Constitutional Affairs has become part of the system. The post of Lord Chancellor and the duties that have accrued to it, as well as any others that we may specify in the measure, would be one way of continuing to safeguard those things until the Government come up with another or better way. So far, they have not done so. I welcome the inclusion of such a provision in the Bill.

My second point is about the general duty on accessibility, which relates to amendment No. 1. The Committee referred to the desirability of that general duty. Paragraph 19 of our report stated that

"the Bill as presently drafted may lead to centralised decision-making on court closures which does not take proper account of local circumstances. Accessibility includes ensuring that courts sit in places which are geographically convenient to victims, witnesses and other court users and are accessible by public transport".

The Committee felt that those factors should be part of the general duty.

Some attempt has been made to meet the requirement in other ways, but Ministers must be aware from the representations that they receive that Members on both sides of the House are deeply concerned about closures, either those that have happened or those that they fear may happen in future, and about other aspects of accessibility. Sometimes, as my hon. Friend the Member for Somerton and Frome pointed out, those aspects may conflict; for example, ensuring that courts are accessible to the disabled can give rise to questions about some courthouses. However, the difficulty and delay in ensuring that a courthouse is fit for the disabled should be attended to; it should not lead to closure, thus making the courthouse inaccessible for many other people. It is highly desirable that the general duty of accessibility should be placed on the Lord Chancellor, which is why we want it to be included in the Bill.

My final point relates to amendment No. 55 and was raised by my hon. Friend the Member for Somerton and Frome: full cost recovery. In its evidence to the Select Committee, the Law Society summed up the case rather well. It stated that the concept of full cost recovery

"fails to recognise that the courts have a public as well as a private role".

We said:

"The judicial process serves important public functions by clarifying and developing the law and setting precedents for litigants to settle their cases or run their affairs, which is of wider benefit."

The decisions that a particular court makes and the process whereby it makes them are important to people who will never see the inside of that courtroom and who are not paying the costs of that case. The case may settle issues that will enable them to know what the law is and to reach sensible decisions on matters affected by the law. That wider public benefit makes nonsense of any attempt to move towards a system of full cost recovery. In representing the concerns of the Select Committee, I should be happier if the legislation could be worded so that that point was much clearer.

The Department has serious budgetary problems and is under constant Treasury pressure to achieve full cost recovery—a notion that is present in so many other parts of the public service but when applied to the courts is plain wrong. A balance must be struck. The contribution from fines and fees is the means neither to fund our courts system nor to decide what the total budget of the system should be. When considering the case sometimes put by the Treasury—that the litigants in a case should always meet the entire cost—Ministers must have regard to the much wider public service that courts provide. Of course, there are circumstances in which it is entirely appropriate that substantial costs should be met by litigants, but there are others in which it is not and the wider public benefit must be recognised.

Chris Leslie (Labour, Shipley)

Clearly, in Committee, we touched on a number of those matters, and it is not surprising therefore that both Opposition parties have posed questions about accessibility, independence and so on in this group of amendments. I will try my best to respond to each amendment and new clause in turn.

New clause 2, which was tabled by the Liberal Democrats, and new clause 4, which is very similar and was tabled by the official Opposition, are both about trying to ensure that the Lord Chancellor has a duty to preserve and maintain judicial independence. It is clear that the Lord Chancellor's existing role and duty is to uphold and maintain the independence of the judiciary and magistracy. That has been a cornerstone of the Lord Chancellor's role for a very long time indeed, so a general duty and responsibility already exists. Of course, the Lord Chancellor's duty is not statutory, but it is no less real for that fact. It is a duty of very real constitutional significance, as the consultation paper on judicial appointments already makes clear.

Successive Lord Chancellors have regarded the maintenance of judicial independence as one of their most serious and important responsibilities. I can assure the right hon. Member for Berwick-upon-Tweed (Mr. Beith) that the current Lord Chancellor also continues to observe that responsibility with the highest regard. I am not quite sure about the right hon. Gentleman's analogy with a stripper trying to catch a train, but I will ensure that I pass on his observations in great detail.

Of course the judges have always recognised that the Lord Chancellor has such a duty, which is a well-established and widely acknowledged characteristic of the Lord Chancellor's role. So there is an accepted duty that does not rely in itself on legislation to strengthen it. Nevertheless, new changes are clearly afoot: the move to abolish the office of Lord Chancellor and developing a new focus as the new office of Secretary of State for Constitutional Affairs has been created.

Those serious issues merit consideration, and the consultation paper on judicial appointments asks in paragraph 21 whether the Lord Chancellor's responsibilities to defend judicial independence should be embodied in statute, but it would be wrong to reach a conclusion now, as that would pre-empt the ongoing consultation exercise, which runs until 7 November. We need to consider the responses to that consultation very carefully before reaching a conclusion on whether it would be appropriate to legislate in such a way.

Some respondents might prefer to follow the example of the Justice (Northern Ireland) Act 2002, by which a statutory duty to protect judicial independence was placed on all those concerned in the administration of justice, not just on the Secretary of State alone. Again, we should be open-minded—the consultation has not finished—so the time to decide has not yet been reached, and in any case I do not believe that the Bill is the appropriate vehicle. The Government believe that the question will be addressed again during the process of abolishing the post of Lord Chancellor, and we will return to the issue at that point, when we are fully in possession of the consultation responses.

My hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth) made a number of comments. He is clearly keen to see radical improvements in the justice system to serve the public. Of course we are talking about judicial independence when we refer to new clauses 2 and 4, but that does not preclude hon. Members on both sides of the House from voicing their views and concerns about the operation of the criminal justice service. He made powerful points, and he is absolutely right to suggest that we must all strive to have a more effective justice system.

Under amendment No. 1—originally a Liberal Democrat amendment, to which Conservative Members have subsequently added their names—the Lord Chancellor would have a duty to ensure that the courts system is accessible. Of course, accessibility is extremely important, but the Bill already covers that matter quite amply. First, the Government have already accepted amendments about accessibility. Clause 30(2), which relates to the places, dates and sittings, now states:

"In exercising his powers . . . the Lord Chancellor shall have regard to the need to ensure that court-houses are accessible to persons resident in each local justice area."

I am glad that the hon. Member for Somerton and Frome (Mr. Heath) says that that is a major advance; indeed, it is. Furthermore, on the issue of fees, clause 92 says that the Lord Chancellor

"must have regard to the principle that access to the courts must not be denied."

Accessibility is therefore already included in the Bill. The duty to run an effective justice system already encompasses the concept of accessibility, and clause 1 places on the Lord Chancellor the duty to run an efficient and effective court system. Surely the word "effective" encompasses notions of accessibility. There are of course many different, laudable descriptives that could be added to the Bill, and we could have a long debate about which objectives should be inserted with the key concepts of "efficient" and "effective". Should we have a "responsive" court system, a "high-quality" court system, an "open and transparent" system, or a "user-friendly" system? All those are, of course, important, and all are encompassed by the sense, as we framed it in the Bill, of an effective court system.

Accessibility will be enhanced by the Bill, but it will also be enhanced by the unification of courts administration, which is a central tenet mentioned and provided for in this Bill. It will enable a more flexible use of the court estate, with the possibility of shared courtroom accommodation, which could prevent courts from closing as new opportunities to use their space productively are opened up. Courts boards, too, will be a new, additional safeguard to accessibility, and will be community-focused, contributing to the development of local plans and local priorities, and much more tailored to local needs. No courthouse will be closed without the involvement of a courts board in the decision.

Accessibility is also about the facilities available to court users, on which the hon. Member for Somerton and Frome touched earlier. Location is not the only consideration for accessibility, and facilities such as video links allowing vulnerable witnesses easier and less traumatic opportunities to give evidence all help to facilitate accessibility. Using the internet, such as the money claims online site that has been developed for issuing claims and checking on case progress, also aids accessibility. As several hon. Members have observed, improving disabled access to court buildings and the court estate is also crucial. I therefore believe that the issue of accessibility is amply dealt with in the Bill, and that amendment No. 1 is not required.

Under amendments Nos. 48 and 49, the Opposition suggest that the Lord Chancellor should have a duty to ensure that at least one magistrates court is provided per district council or per local authority borough area. It is a crude attempt to raise the issue, but I accept that Opposition Members are seeking to highlight what they perceive as an insufficiency of supply of magistrates courts at a local level. I have to say to hon. Members that decisions on where courts should be located are based on much more than simply local authority council areas. Local authorities vary greatly in size and geography: some metropolitan councils are enormous and some local councils are very small. It is not fair or equitable to base a strategic decision on court location simply on the basis of where a local authority boundary lies. The clauses on the unification of courts administration will help, and better use of the courts estate and of non-court buildings will allow more appropriate and flexible approaches to be taken, potentially allowing magistrates courts to be located in future where none exist at present. There are a number of other reasons why these amendments should not be accepted, not least because they refer to the United Kingdom whereas the clause extends only to England and Wales, but I do not want to fall back on the old issue of deficiencies in drafting. Suffice it to say that at present we have 388 magistrates courts in England and Wales and 352 unitary authorities, district councils and boroughs. Although I am sure that not every council area has a magistrates court within it, it is most likely that the vast majority of them do.

Amendment No. 50, tabled by the Opposition, rather oddly suggests that the annual report that the Lord Chancellor must produce should include a report on the whole of the legislation and on other changes since May 1997. The scope of the proposed annual report is already wide. It will be an annual report into the efficiency and effectiveness of the court system. It is quite odd to suggest that the focus should be on this Bill when it is not just about the court system or unification of the courts administration, but contains provisions about the Northern Ireland Official Solicitor and the process for making periodical payments for civil damages. The legislative vehicle is not the best vessel to mirror if we are aiming to produce a well-written, well-structured annual report.

It is also interesting that Opposition Members have picked May 1997 as the start for the court system report. It is tempting to consider what activities took place before that date, but perhaps comment on those adverse circumstances is best left to another occasion.

The amendment also calls for an independent analysis of the effect that the Bill and other pieces of legislation since 1997 have had. We already have a robust process for audit and scrutiny. The Government are not against independent scrutiny. The new Constitutional Affairs Committee was established earlier this year under the august chairmanship of the right hon. Member for Berwick-upon-Tweed—I say that because I have not yet appeared before the Committee; who knows I might change my view. With the publication of the reports of the magistrates courts service inspectorate and the National Audit Office, there are already ample opportunities for independent scrutiny. Amendment No. 50 does not stand the test of what is required.

Amendment No. 55 is significant in that it suggests that fees prescribed in civil courts cannot be used to recover the cost of judicial salaries or the notional cost of using heritage buildings, which are presumably listed buildings. Although it is a slightly separate matter, it is important to consider the context. Fees are prescribed in the civil court justice system because, unlike in the criminal courts, cases are brought by private individuals or bodies seeking damages and redress, rather than on the basis of public interest. The Government have a long-standing policy of seeking to recover the full cost of the civil court services provided, including judicial salaries—something that was decided in 1992—and the notional cost of using buildings in the court estate, as decided in 1982.

That policy is based on the general principle that parties to cases are expected to pay the full cost of that part of the civil justice system that they use to resolve their private disputes. Recovering those court costs through fees ensures the protection of taxpayer resources, which can best be targeted at priority areas for the public benefit. To exclude the elements in question would understate the true cost of the service by about £130 million a year for the cost of civil judicial salaries alone. No doubt that would all be paid for by the top rate of tax to be imposed by the Liberal Democrats. It is worth totting that up as a spending commitment for future reference.

The amendment would institute a subsidy of that sum—and more besides—for all types of civil cases, including business cases brought by large corporations. A far better system than that crude subsidy is one in which exemptions and remissions are based on need, as they are in the case of the family proceedings subsidy or the 5 million people who are eligible for automatic exemptions from fees because they are receiving working family tax credit, pension credit, income support and so forth. That is a better approach than excluding whole categories of costs from the fees that should be paid by litigants. It is perfectly reasonable for fees to include a recovery element, and to look for full recovery of costs to cover those matters. I hope that the amendment is rejected and that the House will not accept this group of amendments.

David Heath (Liberal Democrat, Somerton and Frome)

With the leave of the House, I should like to say that we have had an interesting little debate. I am most grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for his support, and that of his colleagues, and to my right hon. Friend the Member for Berwick-upon-Tweed (Mr. Beith), whose analogy of the Lord Chancellor as a stripper with a train to catch will live long in my memory. The next time I see the noble Lord Falconer, I shall try hard not to let that image form in my mind as I am speaking to him.

I understand the frustrations of the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) with the legal system; I often share them. He is not the only one to have experienced cases such as these, as he knows. I have no difficulty accepting that there is a proper place for criticism of the system as a whole and, sometimes, of individual decisions. Indeed, the judiciary is sometimes guilty of the charge of a degree of unwarranted complacency. I recall that Lord Hewart told the Lord Mayor's banquet in 1936 that

"His Majesty's Judges are satisfied with the almost universal admiration in which they are held."

I would not suggest that that is necessarily a statement of the current position; nor would I suggest that many present-day judges would be quite so complacent about the esteem in which they may or may not be held by the public. There is, however, a clear division between criticism and pressure from a person in a position of authority—that is, a Cabinet Minister, or the Government as a whole. That was the distinction that I was trying to draw.

George Howarth (Labour, Knowsley North and Sefton East)

I would not want the hon. Gentleman to think that I believe that the Secretary of State should be able to bring pressure to bear in any particular case. I was using the case that I mentioned to illustrate a general principle, namely that the courts do not seem willing to deal with these serious matters in a serious manner.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for that intervention, and I do not think that there is much between us on this issue. When we return to the question of sentencing guidelines councils in the context of the Criminal Justice Bill, on which there has been broad agreement between the Front Benches and Back Benches of all parties, we shall see that there is a case for not only the Executive, but the House having some sort of handle on what happens in our courts—as long as it does not go further and compromise the independence of the judiciary in coming to their legal decisions.

Amendment No. 55 deals with the full recovery of costs. The Minister does not seem to accept the idea, which I think is self-evident, that there is a common good in having disputes settled through the legal process. A moment's thought will surely tell us that we are better off living in a country in which these issues are arranged through the courts rather than through fisticuffs, which is often the alternative. There is, therefore, a proper role for the Government in supporting that function. That was always accepted without question until relatively recently—full cost recovery was introduced only relatively recently—and the justification for refusing any support to the system is a flimsy one indeed.

On the second and perhaps more substantial point of accessibility, this is a matter that we debated long and hard in Committee. Opposition Members are absolutely clear that, whatever the Minister's protestations, a general duty of accessibility needs to be written into the Bill. Judging by what the Minister has said, he does not seem to have a problem with that, because he believes that that is being achieved in any case. The only thing that he does not like is the word that we want to insert into the Bill. He said that we could have a long debate on the words that could be added, but we do not need to do that. We just want one word: "accessibility". I also believe that the House wants that word to be added, and should I have the opportunity later, I should like to test the opinion of the House on that matter.

I think I have said enough on independence. The Minister asks that we do not pre-empt the consultation process on his White Paper. I believe that constitutional principle pre-empts administrative arrangements. The Lord Chancellor has had a specific role in maintaining judicial independence. Given that that will inevitably be lost in the process of reform, we must ensure that it is stated in some form in statute. We have the support of the Select Committee and the judiciary, which acutely feels under threat. In the light of that, the House should express an opinion.

New Clause 3 — Circuits

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: No. 56, in page 3, line 35 [Clause 4], leave out from 'specifying' to first 'the' in line 38 and insert—

'(a) in respect of areas except London, areas which are the same as, or fall entirely within, the police areas listed in Schedule 1 to the Police Act 1996 (c. 16) (division of England and Wales, except London, into police areas), and

(b) in respect of London, at least five separate areas falling entirely within'.

No 2, in page 3, line 35 [Clause 4], leave out from 'which' to first 'the' in line 38 and insert—

'(a) in respect of areas except London, are the same as, or fall entirely within, the police areas listed in Schedule 1 to the Police Act 1996 (c. 16) (division of England and Wales, except London, into police areas), and

(b) in respect of London, fall entirely within'.

No. 51, in page 3, line 35 [Clause 4], after 'as', insert

'(or in any event no larger than)'.

No. 3, in page 4, line 6 [Clause 5], after 'concerned', insert—

'( ) in particular, to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his duty under section 21 in relation to the courts with which the board is concerned;'.

No. 57, in page 61, line 7 [Schedule 1], after 'board', insert

', except the courts board for London,'.

No. 58, in page 61, line 18 [Schedule 1], at end insert—

'2A The courts board for London must have—

(a) at least three members who are judges,

(b) at least six members who are lay justices, each of whom is assigned to a local justice area the whole or part of which is included in the board's area,

(c) at least six other members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the courts in the area for which the board acts, and

(d) at least six more members who are persons appearing to the Lord Chancellor to be representative of people living in the area,

and may have other such members of a description mentioned in subparagraphs (a) to (d) as the Lord Chancellor considers appropriate.'.

No. 59, in page 62, line 10 [Schedule 1], at end insert—

'(c) the establishment of consultation arrangements with local authorities in the area for which the board acts.'.

David Heath (Liberal Democrat, Somerton and Frome)

New clause 3 was tabled by Liberal Democrat and Conservative spokesmen, and is a bit of an anomaly, as it deals with circuits. Originally, I had no intention of bringing up the matter, as generally circuits are not a thing of statute—they are an administrative convenience, albeit one whose foundation goes back to the mists of time. I did not think that we needed clear legislation on court circuits in the Bill. However, my view was entirely changed by my hon. Friend the Member for Mid-Dorset and North Poole (Mrs. Brooke), who passed on to me some disturbing correspondence that she had received from the resident judge at Dorchester, his honour Judge John Beashel, who objected strongly to the way in which the Government have behaved in seeking to amend the western circuit by arbitrarily removing Winchester Crown court from Hampshire and adding it to the south-east circuit. He feels strongly about that, but more importantly, there is unity in the judicial profession on the subject. Indeed, Judge Beashel said in his letter to my hon. Friend:

"The judiciary are as one in opining that such a move would be very damaging to the administration of justice."

Judge Beashel includes in his correspondence, of which I have copies, a letter to The Times from the chancellor of the dioceses of Winchester and Portsmouth, Mr. Clark QC, and another letter published in a newspaper that could not have been signed by a more distinguished group of lawyers, including Lord Bridge of Harwich, Lord Ackner, Lord Nolan and others.

Mark Oaten (Liberal Democrat, Winchester)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

I shall give way to my hon. Friend the Member for Winchester (Mr. Oaten), who has no doubt received representations on the matter.

Mark Oaten (Liberal Democrat, Winchester)

May I supplement my hon. Friend's list by adding that that is the view of many judges in Winchester. Indeed, so concerned are they that they have even attended my surgeries to make representations. The general view is: "If it ain't broke, don't fix it."

David Heath (Liberal Democrat, Somerton and Frome)

I fully agree with my hon. Friend's observation. Having had to countenance the view of the Lord Chancellor as a stripper with a train to catch, the thought of circuit judges queuing up at my hon. Friend's constituency surgery, presumably appropriately robed, to make their representations, is one that will remain with me for some time.

To corroborate my hon. Friend's point, however, Judge Brodrick, the resident judge at Winchester—I am sure that he has approached my hon. Friend—and the president of the Council of Her Majesty's Circuit Judges was good enough to produce a briefing paper on the implications of the change. The Government's only argument for changing the western circuit, which has been in existence since time immemorial, although perhaps not in legal terms, is one of bureaucratic tidiness. They want the legal circuits to correspond with the Government office regions.

I cannot for the life of me see any logic to that. Even in the broadest terms, I do not see how the administration of justice is improved by it, but I do see the cogent arguments adduced by the judges against the proposals. Taking away Winchester produces a great imbalance between the south-eastern and the western circuit in terms of courthouses and the number of judges, especially judges experienced in particular specialties, and will affect the travel patterns of people who require access to the law courts, especially in Dorset and areas near Winchester but not near the other courts of the western circuit. I see such strong arguments against that that I cannot believe that the Lord Chancellor is serious in his proposals.

I understand that the final decision has not yet been taken, but will be made shortly. If such arbitrary decisions are to be made, we need a mechanism to interact with the Lord Chancellor. The courts boards for a whole circuit area seem the most appropriate means of establishing that mechanism.

It is interesting that the circumstances of Winchester do not seem to apply in Wales and Chester, where the Government are content to allow the anomaly to continue because they say that the legal administrative arrangements are too difficult to disentangle. Exactly the same arguments seem to me as a lay person to apply in Winchester, and my view is supported by members of the judiciary, who have to make the system work. I hope the Minister will give us a simple explanation of such an apparently arbitrary and highhanded decision by the Lord Chancellor, of why there was not prior consultation with those affected, and of what he believes to be the advantages of the proposed arrangement that outweigh the patent disadvantages that have been identified.

There are six other amendments in the group. I shall say very little about amendment No. 56, as my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) hopes to catch your eye, Madam Deputy Speaker. The arguments are principally to do with London, and as a London Member, my hon. Friend has a particular interest.

The amendment revisits the argument that we had in Committee about the size of the courts boards areas. It appears to be the Government's view that the courts boards areas will be coterminous with the present police authority areas for the greater part of the country, and in the case of London will be coterminous with the Metropolitan police area, including the area of the City of London police. I argued in Committee and I argue again today through amendment No. 2 that that is a false reconciliation of the relevant areas.

I am glad that the courts boards areas are not to be bigger than the police authority areas, as was feared in the initial stages of the Bill, but many joint board areas go well beyond the county area for police authorities. I think of my own in Avon and Somerset, as well as the Thames Valley police area and the Greater Manchester area covering a substantial metropolitan area, and similarly in the west midlands. It seems anomalous that simply because there is a single police authority area, there should be a single courts board area for those, whereas for the smaller county constabularies, there should be a discrete courts board area for each—for example, a separate area for Gwent, and another for Bedfordshire.

It makes sense for courts boards areas not to extend over more than one police authority, and thus more than one probation service or other judicial organisation area. I accept that. However, we have reached a point where the areas are too big to properly represent local citizens. It would be far better were we to resile a little from such amalgamations and consider constituent parts of police authority areas. The best example is London, where the situation is rather silly, but the problem exists elsewhere in the country as well.

On amendment No. 3, we are supported by the hon. Member for Surrey Heath (Mr. Hawkins) and his hon. Friends. It would allow for scrutiny of the way in which the Lord Chancellor carries out his duty under clause 21 to consult the lay justices, as we must now call them. That is crucial to the successful implementation of the Bill. It is essential that the Lord Chancellor properly consult the lay magistracy to ensure that what he is proposing through the relevant mechanisms will work in local areas.

The basic level of scrutiny that we suggest in the amendment would provide some sort of check and balance to ensure that the Lord Chancellor keeps to the commitments that he made in the course of discussion of the Bill and in the Bill itself, and that the lay magistracy have a clear avenue through which to raise their concerns if, as I suspect we may find some time in the future, their views are not being taken sufficiently into account.

New clause 3 on circuits is largely a probing clause to help us better understand the Government's thinking. The proposals on the courts boards encapsulated in amendments Nos. 56, 2 and 57 to 59 are more substantive. The important role of scrutiny is dealt with in amendment No. 3.

Nick Hawkins (Conservative, Surrey Heath)

Once again, as was often the case in Committee, we make common cause with the hon. Member for Somerton and Frome (Mr. Heath) and his hon. Friends. On new clause 3, dealing with circuits, like those hon. Members, especially the hon. Member for Winchester (Mr. Oaten), I have had approaches about the matter. I know the strength of feeling among members of the judiciary and members of the Bar. I am delighted to hear that members of the judiciary have even been attending the surgery of the hon. Member for Winchester. The strength of feeling was reinforced for me when the matter was raised with me by a member of the Bar last weekend while I was at a family wedding. In addition to the views expressed by members of the judiciary and senior members of the Bar, the fact that matters are raised at surgeries and even with Members at social events shows the strength of feeling.

I know Winchester well from my own time in practice. More recently, I had the privilege of sitting with some of the judges there while doing my training for consideration for possible appointment to a recordership, so in relatively recent times I have met some of the judges, just before the proposal was published. Knowing the exceptionally high quality of the judges who sit at Winchester, I understand their concern.

I very much share the extremely strong views expressed by the hon. Member for Somerton and Frome on the lack of logic of making this change simply to fit into what in any event Conservative Members would regard as a rather artificial grouping of areas in a Government office area. I could not agree with him more strongly that there is no logic in saying that a circuit area must match the area of operation of a Government office. Often in Committee, on this Bill and on other legislation, I have attacked the Government's mania for change for change's sake and the belief that modernisation is somehow a god that they must aim at in every possible way. This proposal would simply cause damage where there is no positive benefit to be gained whatever.

As the hon. Gentleman rightly said, "If it ain't broke, don't fix it." I would say, "If it is not necessary to change, it is necessary not to change." This is one of those occasions on which it is necessary not to change. It would be far better for the administration of justice in Winchester and the surrounding area if the Government backed off from this ill considered proposal. The hon. Gentleman says he hopes that the die is not yet cast and that the final decision has not yet been made. I devoutly hope that too.

I remember the angst on my old circuit, the historic Midlands and Oxford, when similarly, not all that long ago, Oxford was removed. There was great concern and sadness about that, but this would be an even worse decision. I am therefore pleased to add the views of Conservative Members to the strong views expressed by the hon. Gentleman. I suspect from the presence in the Chamber of the hon. Member for Winchester that we may hear more about this from him in a while.

Liberal Democrat amendment No. 56 is, in effect, a replacement for the more modest Liberal Democrat amendment No. 2—we will hear about that in due course from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes)—and we have tabled amendment No. 51 to similar effect, which seeks further security that the court areas should not expand. We debated that at length in Committee, but we and the Liberal Democrats are trying to back up the same concept here.

As the hon. Member for Somerton and Frome rightly said, our names appear with those of Liberal Democrat Members on their amendment No. 3 because we agree that clause 5 must provide for a review of what the Lord Chancellor is really up to. We think that it should be clear in the legislation that he must consult lay justices properly under clause 21. For the same reasons as we do not have a great deal of faith in the Government's agenda and their reliability on these matters, we think that this part of the Bill would be a great deal stronger if that provision were written into it.

Liberal Democrat amendments Nos. 57 and 58 are specific London-based amendments to schedule 1. I am rather cynical about the Liberal Democrats' last-minute replacement of their original amendments with some of these London-based proposals. I suspect that it might be to do with the demotion of the hon. Member for Southwark, North and Bermondsey to being only the future failed Lib Dem mayoral candidate. It must be so depressing to know that he is going into something in which he can only ever come a poor third. Nevertheless, Liberal Democrat amendment No. 59 is a sensible measure on consultation with local authorities. That is well worth while.

There is a general theme to these proposals—backing up the concept of putting in the Bill safeguards to ensure that the Government do their consultation with the lay magistracy properly and that they do not tinker with circuit areas for no good reason. I hope very much that the Minister can respond positively to some of the serious concerns expressed by the Liberal Democrats and me.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am happy to speak in particular to amendments Nos. 56 to 59 and I am grateful for the Minister's courteous response outside the Chamber to the proposal in principle. I look forward to what he will say in response to the amendments standing in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath).

These proposals would have been on the amendment paper whether I had continued with the full panoply of responsibility for home affairs, whether I was responsible for London matters for my party in this Chamber or whether I was responsible for neither. The issue came to my attention earlier in the year from people in my constituency and elsewhere in London as important for London. In a moment, I will turn to why the amendments have been tabled and why I hope that they find support among Labour Members.

May I add a word in the context of the wider debate, which my hon. Friend the Member for Somerton and Frome introduced? For the record, in my practising years I, too, was a member of the midlands and Oxford circuit. The traditional circuits are not, of course, theologically based or divinely inspired. They were a practical development of a grouping that was convenient for people in terms of carrying out legal work. If people in Hampshire, and in particular in Winchester, feel that they are more naturally linked to their colleagues in the western circuit, it seems to me that they must know best. They do the job day in, day out, week in, week out and year in, year out.

I hope that the Minister will be positive about the joint pleas from my hon. Friends the Members for Somerton and Frome, for Winchester (Mr. Oaten) and for Mid-Dorset and North Poole (Mrs. Brooke) and Conservative Front Benchers. I hope also that we do not go down the road whereby everything always has to follow exactly the same boundaries simply because somebody once decided that they were administratively convenient for something else.

On the London proposals, may I make remarks to the Minister by way of introduction and to explain where they come from? I share with the Government the view that if the criminal justice system is to be accountable, the ordinary people of England and Wales need to be able to have access to it not only when they are defendants, witnesses, called to sit on the jury or as magistrates or, sadly, are victims, but when they want to know whether the system is working.

From the Liberal Democrat Benches, my hon. Friends and I have argued that just as we are coming to a consensus in Parliament that the police should be accountable locally in the boroughs, districts, counties and council areas that we all live in, so it is only right that the other bits of the criminal justice system—the probation service and the Court Service—should also be accountable locally. The courts understand that.

The other day, I went to a very good open day at the Southwark Crown court building by HMS Belfast on the edge of the River Thames. It was a Saturday and there was a very large turnout of people who were seeking to ensure in part that the Court Service is more accessible in that way. I also mean that the public often want to know why certain decisions were made. For example, when the police catch someone who has stolen a car for the fourth time, why do the magistrates or the Crown court pass a sentence that might release that person back into the community perhaps to commit the same offence for a fifth time? It seems to me that such accountability has to be achieved when the accountability of the police and the probation service, as well as that of custodial institutions such as prisons or young offenders' institutions, is being addressed.

One way in which we need to think of the structures is in terms of how the Court Service can be seen to be growing in confidence in respect of the community. The second is how the people who run it relate to those who are their customers day in, day out. The proposition behind our original proposal—amendment No. 2—also stands in amendments Nos. 56 to 59, which were tabled by me and my hon. Friend the Member for Somerton and Frome. It is simply that London, which has three times the population of the next biggest police area in England and Wales, will not be served appropriately by a courts board with the same limited number of representatives—12—as can be found in the smallest police area and all those in between.

I am not making special pleading because London is the capital city, although that might be relevant, nor am I saying that there might be a special case because we have the central criminal court and the law courts in the Strand as well as the Judicial Committee here and the future supreme court, but I am saying that we have far more courts at all levels in our 33 local authorities. It is just not possible for them to be represented by 12 people. With the best will in the world, it is just not possible. That is not only my view; it is the view of those who share my local bench at Camberwell Green and Tower Bridge.

I have given the Government two options, amplifying the original proposals of my hon. Friend the Member for Somerton and Frome. Amendment No. 56 asks for five areas; in fact, it states that there shall be five areas. My hon. Friend originally proposed that London should not be required to be a single area, but I want to ensure that we have five areas. The alternative contained in amendments Nos. 57 to 59 would make the courts board for London much bigger and therefore more representative. I have simply allowed for three times as many members as the Government, because London is three times as big as anywhere else.

Amendment No. 58 says that there must be at least three members who are judges, at least six members who are lay justices, at least six with relevant experience and six who are representative of the community. That at least gives the huge diversity of communities in the north, south and east, and in central London—people with all sorts of backgrounds and faiths, of all ages and from all walks of life—a chance to begin to be represented. The system will not be perfect, but there will be that chance. Specifying 12 members gives people out on the Hertfordshire and Buckinghamshire borders, down on the Kent and Surrey borders, and on the Essex borders, as well as those from inner-London boroughs and the City, no chance of representation.

At the time of the last census, the population of outer London was 4.4 million and that of inner London was 2.766 million. Next came the West Midlands police area with 2.5 million, followed by Greater Manchester with just under that, West Yorkshire with just over 2 million and Merseyside with 1.3 million. Obviously, I did not pluck those figures out of the air; I talked to people about the best possible number of areas for London.

I understand that both the Crown Prosecution Service and the Greater London Magistrates Courts Authority currently divide London into five regions. The London organisation of the CPS has a central criminal court section, and sections for the south, west, centre and north and east combined. Confusingly—this is why we need to rationalise and co-ordinate the arrangements—the Greater London Magistrates Courts Authority has five different regions owing to its historical genesis: the north-east, north-west, south-west, south-east and central regions. Both bodies, however, have concluded that five is the right number.

I think that this should be the subject of the consultation that will follow the paper produced in September. January is the deadline for responses. I hope that we can then secure some agreement. It may be considered logical to have north, south, east, west and central areas for the courts, reflecting the way in which people move. The central area could involve the central criminal court and the law courts in the Strand, for instance.

Amendment No. 59 proposes consultation with local authorities in London—the 32 boroughs and the City. They are proper stakeholders, and I feel that they should be able to understand and be comfortable with the operation of the courts—they are, after all, responsible for increasing amounts of criminal justice under legislation relating to crime and the police that was enacted in the late 1990s. Liaison between police and local government is much better than it was, and I think the same should apply to local government and the courts.

There is one last way out for the Government if they resist the idea of five areas, or the idea of a board three times as big to reflect the population—of the two, I prefer the five-area model—which is the introduction of an overarching board, a sort of supreme court of courts boards, with five subsidiary areas acting as sub-committees. I hope it is deemed helpful rather than confrontational of me to tell the Minister that people I have talked to who are in the know and doing the job think that such a model could work. They would prefer five separate areas, but there is logic in the notion of five sub-committees, as it were, feeding into a central courts board.

This may sound dry in relation to the exciting political issues of our day, but the administration of the courts is all about what we read in the newspapers, once a week if not more often—about people taken to court, people found guilty, people being sentenced. It is all about access to justice locally. It is all about people feeling that they can go to the civil courts easily, and obtain expeditious justice. It is all about whether people feel that justice is delivered on their doorsteps. In a great metropolitan area such as London, the doorsteps of those living in Sutton, Croydon and Bromley are not in Barnet, Hillingdon or Havering. They need to feel that the justice system is working for them, and that the courts they read about in their local paper that are imposing sentences are administered by people whom they know, can choose and can influence.

I ask the Minister to accept that this is about making the Court Service properly accountable in the metropolitan area, just as it will be—I hope—in the rest of the country. People need to feel that they can influence the running of the service, and can tell those in charge if the courts are in the wrong place or open at the wrong times, if there is not the right public transport, or if the provision of probation officers, facilities for the public, magistrates or the right mix of magistrates is not adequate. All that matters hugely to the functioning of the service.

I hope the Minister will assure us that London will be treated differently because of its large size. Above all, I hope we shall have a structure reflecting the diversity of London and allowing it to be reflected in one of the most important parts of the criminal justice system.

Chris Leslie (Labour, Shipley)

I am grateful to the Opposition Members who tabled this string of amendments relating, in particular, to the courts boards that we hope to set up. They give us an opportunity to look at how they will operate within the overall agency structure of the new unified courts administration. The hon. Member for Southwark, North and Bermondsey (Simon Hughes) was right to say that while these matters may seem dry, in many ways they go to the core of issues picked up regularly by the media: the operation of the courts and how they serve the public, and the criminal justice system in particular.

New clause 3 seeks to allow courts boards to meet one another, and also to be consulted on changes to circuit or regional boundaries. Of course we want courts boards to meet from time to time. Our aim in establishing them is not to create exclusive "silos" that never communicate with each other. Guidance will be issued to boards on how they should operate, and the ability to work across boundaries will be a key part of the new system. Boards will need to be aware of that in practice, and will need to consult each other in the same way as neighbouring managers.

Secondly, on the proposal that courts boards should be consulted about any proposals to alter circuit boundaries, I can assure the hon. Member for Southwark, North and Bermondsey that the relevant courts boards would be consulted if we were to change regional boundaries in future. A change to regional boundaries might well have consequences for courts board areas; that is why consultation is already required under clause 4(6). At present, the only statutory requirement is for the Lord Chancellor to consult the Lord Chief Justice.

Changes to the regional boundaries would necessitate consultation with all the parties who would be affected. If the Lord Chancellor decides to make future alterations to the boundaries, a similar level of consultation will be required, and the views of affected courts boards, as part of the new administration, would be part of that. There is no need to single out courts boards for special consideration in that process, as the new clause proposes; indeed, that would ignore the important views of other groups with a fundamental interest in circuit and regional boundary issues.

Having considered the views expressed by stakeholders on the options for the unified courts administration, we concluded that there should be 42 local areas and that the courts boards should match those. We also decided that there should be a regional tier of management to ensure that the agency can best support civil and family work, as well as the criminal jurisdiction, in dealing with cross-boundary issues and the deployment of the judiciary.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister will have spotted the obvious anomaly that there is to be a London region, but, uniquely, only one board within it. Every other region in England and Wales will have several courts boards. Is not that a strong argument for the amendments?

Chris Leslie (Labour, Shipley)

The hon. Gentleman is champing at the bit for me to turn to my comments on London. I assure him that there are good grounds for the conclusions that we have reached; I shall deal with that in a moment.

The Government's policy is that regional boundaries should match those of the nine Government regions and Wales unless there is a compelling reason to the contrary. The 42 criminal justice areas fit within those boundaries. Having accepted that nine regions and Wales are too many given the size of the organisation, we decided that there should be seven regions.It is clear from the comments of the hon. Members for Somerton and Frome (Mr. Heath), for Winchester (Mr. Oaten) and for Surrey Heath (Mr. Hawkins), among others, that much attention is focusing on which region will include Hampshire. A decision on whether it will be in the south-east or the south-west region will be made no later than 31 October. We have held meetings with the senior judiciary, representatives of the Bar Council and judges and barristers from the western circuit to assess the potential impact of a move away from the western circuit. We are listening to the views of all interested parties before reaching a conclusion. I do not want to pre-empt that decision, but I have no doubt that whatever the outcome hon. Members will find ingenious ways of raising the issue and cross-examining Ministers to hold us to account for our decision.

Amendments Nos. 2 and 56 propose that courts boards areas should be the same as, or fall within, police authority areas. The hon. Member for Southwark, North and Bermondsey suggests that London should have five courts boards. A balance must be struck between ensuring effective management and addressing community needs in as local and responsive a way as possible. It is our intention that courts boards will provide members of local communities with much more input and influence over the administration of all the courts in their area—not only criminal courts—than they have ever had before. It cannot be denied that there are wide contrasts between communities in all areas, not just London. We must strike a balance between meeting community needs and ensuring a workable management structure. In particular, a courts board area must have a certain core of workload volume, court business and courthouses. Police authority areas strike the right balance in London and elsewhere. They match those used by the probation service and the Crown Prosecution Service, while fitting in with local authorities.

Turning to London, we decided that there should be a courts board at the Greater London level because that is the level at which decisions are taken in the capital. In particular, the Criminal Justice Board brings together the criminal justice agencies, including the Crown Prosecution Service, the police, the probation service and the courts. It is also the basis for the seat of the Mayor of London. If the London area were to be fragmented into freestanding sub-areas, where would the line be drawn? The hon. Member for Southwark, North and Bermondsey argues that there should be five courts boards in London on the basis of the administrative regions that are employed by the Greater London Magistrates Courts Authority. However, those five will not necessarily automatically be more representative of London's diverse community or include a full range of boroughs. However, I see the sense of the hon. Gentleman's point in the broader sense, and I am happy to assure him that if the London courts board thinks that it needs a further sub-structure in order properly to drill down into local community needs, we will give that close consideration.

As an alternative proposal, the hon. Gentleman suggests that the London courts board needs to be an exception and that it should have at least three times more members than those in other regions. I do not believe that the figure of 21 would be particularly workable. We must strike a balance: a courts board must be not only workable and capable of taking a strategic view, but able to make decisions without having the "large committee" feeling that could result from an excessive number of members. I congratulate the hon. Gentleman on his ingenuity in arguing for three times the membership for the London courts board, but even that figure would not necessarily include everyone he would want to have a seat. Having seven members on each courts board is a realistic and workable starting point, but the Bill offers a great deal of scope for adding more members if that is deemed appropriate. In practice, therefore, if the London courts board, in common with those in the rest of the country, thinks that it needs more members, the Lord Chancellor and the Secretary of State will be happy to consider it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Can the Minister put on the record the balance of the representations that he has received on the London issue? If not, will he do so in writing? Will he further undertake that in the course of the consultation he will not only read, but have his opinion influenced by, the balance of views that are expressed? He knows as well as I do that there is a strong feeling that we need a structure that works for the whole community across London.

Chris Leslie (Labour, Shipley)

The hon. Gentleman is right to say that we need to pay close attention to the particular circumstances facing a London courts board, but it is important that it is able to match the boundaries of the Crown Prosecution Service, the probation service and the Greater London Authority. I will ensure that we have further opportunities to consider the matter.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister turn his attention for a moment to the royal courts of justice? The Lord Chief Justice believes that he has an agreement with the Lord Chancellor that there will be a special arrangement for the royal courts of justice. Can the Minister confirm whether that is the case?

Chris Leslie (Labour, Shipley)

I am afraid that I do not have the minutes of any meeting between the Lord Chief Justice and the Lord Chancellor regarding the situation of the royal courts of justice in respect of a London courts board. It is an interesting point. I shall discuss it with my noble Friend and write to the hon. Gentleman.

Amendment No. 59 seeks to establish that regulations will be made in terms of how courts boards should liase with local councils. To single out local authorities for special legislative treatment is questionable. Many other agencies and groups, including the police and the Crown Prosecution Service, have a key role to play in the administration of justice in a local area. It would be better management practice to establish good links with all of those groups. The Lord Chancellor will require agency managers and the courts boards to consult and to take account of their wider stakeholder base, and they must make sure that arrangements are put in place to ensure that that happens. That will of course include local authorities, as a good partnership will be vital in policy areas such as children, housing and tackling antisocial behaviour, to name but three. As the guidance that we issue will make clear, that will be critical in the case of London as well, but we do not need to allow the boards the freedom to consider just local authorities. However, they should have the freedom to reflect the need to consult a much wider area. I therefore hope that hon. Members agree that this amendment is not necessary.

Amendment No. 51—under the terms of which, courts boards would not exceed the size of police authority areas—is too restrictive. We have announced that from the start of the new agency, courts board areas and agency managerial units will match the 42 police authority areas. However, it is theoretically possible that when matters have bedded down—I am not prejudging the issue—it might make sense to join up some areas, given that work moves across their boundaries frequently. It would be wrong to close off that option simply because of the legislative obstacle that this amendment would constitute. It is also important to remember that courts boards will not be concerned with criminal business alone; they will have a wider remit, including civil courts, family courts and so forth, so simply to restrict them to police authority areas is not the right approach. The consensus may well be reached that merging areas is the right way to proceed, and it would be wrong if courts boards were to discover a legislative obstacle that prevented them from doing so. As I said, we intend at this stage that the courts boards match the 42 police authority areas, but at the moment it would be wrong to include such a fettering amendment.

Under amendment No. 3, courts boards would have a particular duty to monitor how well the Lord Chancellor consults magistrates. Courts boards already have a statutory duty to scrutinise, review and make recommendations on the way in which the Lord Chancellor is discharging his general duty. An essential component of that duty will be to scrutinise the way in which the new agencies work with all of their stakeholders: magistrates and judges, lay and professional court users, and members of the local community. There is no need, therefore, to create a link between clauses 5 and 21. It would be wrong to single out magistrates and only partially to reflect courts boards' wider role; to do so would imply a narrower role for courts boards than we currently envisage. They will be concerned not just with local magistrates courts, but with the needs of local areas in their entirety, and of the entire courts system. For that reason, amendment No. 3 would be an incorrect route to take.

Clause 21, which was included in the Bill with the backing of the Magistrates Association, already includes a duty to build effective lines of communication with all stakeholders. It guarantees magistrates that, in terms of what affects them in the performance of their judicial duties, proper lines of communication will be established between them and courts' administration. It is unnecessary to go further by giving special prominence to magistrates in respect of the duties of courts boards. We are discussing with the Magistrates Association what clause 21 means in practice, with a view to identifying the key issues and some guiding principles for magistrates and managers. The balance that the Bill strikes is therefore the right one, so I ask hon. Members to withdraw the new clause and related amendments.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for his courteous and detailed reply; to the hon. Member for Surrey Heath (Mr. Hawkins); and to my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) in particular for his comments in support of the amendments. I accept that we are not going to agree on the need for the courts boards to monitor the Lord Chancellor's performance in respect of clause 21, but I still feel that it is desperately important that they do so. Irrespective of whether we pursue the matter through legislation, I hope that the clear understanding exists that one of the courts boards' functions will be to express concerns that feed through the system to them, from magistrates and lay justices, about what is happening in a particular courts board area, and that that will include the degree to which the Lord Chancellor, or his successor in title, is working with—or against—the interests of local justice in that area.

I hear what the Minister says about the arrangements for the western circuit, but he will not have satisfied those who feel strongly about this issue, particularly the judicial interests involved. He said that there is no need for the courts boards—either en bloc or individually—to have a specific remit to look at this issue because they will be consulted as a matter of course. He also said that at the moment, the only statutory consultee is the Lord Chief Justice. It is interesting to note that the Lord Chief Justice was the one correspondent whom I did not mention in my introductory remarks, so let us correct that omission. His letter to the Lord Chancellor makes his opinion very clear:

"While writing to you, I should make it clear that I personally have the greatest concerns about the possibility of Hampshire not remaining part of the Western Circuit. I, of course, accept you have concerns as to the importance of regional Government, however, regional justice is also important. To include Hampshire as part of the South Eastern Circuit would make that circuit, which is already very large, excessive to manage from a judicial point of view. More seriously, if Hampshire were to be moved from the Western Circuit, the delivery of justice on that circuit could be seriously undermined."

The Lord Chief Justice could not have expressed his concerns in a more open and considered way. I hope that when reaching a decision, account is taken of those concerns. One thing that the Minister said was absolutely right—if such account is not taken, Members of this House will find ways to raise the issue with him and to make his life hell. The danger is that bureaucracy will triumph over common sense and the interests of the judicial system.

On the size of courts boards, the Minister seemed to be edging towards the position set out so well by my hon. Friend the Member for Southwark, North and Bermondsey. He recognises that there is a desperate problem with London. It makes no sense to have a single authority area for London, so he is edging towards a solution that involves a single courts board for the entire metropolitan area, and an airy-fairy, rather nebulous arrangement below it that will have no clear remit or structure, and which will not achieve what we want it to achieve. Such a structure would be better than nothing, so let me not argue against what the Minister may, or may not, be edging towards. However, my hon. Friend's proposal is a much more sensible suggestion, dealing as it does with London's different localities by giving them a proper voice. Indeed, such an approach is normal for those areas that, by happenstance of history, have small shire constabulary areas.

I was somewhat concerned that the Minister appeared not to know about the correspondence on the royal courts of justice. However, he said that he will write to me on that specific issue, and I am grateful to him. Nevertheless, this House should be able to express a view on the courts boards for London, with which amendment No. 56 deals. On that basis, I beg to ask leave to withdraw new clause 3, but I shall ask the House to divide on amendment No. 56.

Motion and clause, by leave, withdrawn.

Clause 1 — The General Duty

Clause 4 — Establishment of Courts Boards

Clause 8 — Local Justice Areas

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 4, in page 5, line 13, at end insert—

'( ) No local justice area may include areas which form part of more than one area specified under section 4.'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following amendments:

No. 5, in page 5, line 13, at end insert—

'( ) No local justice area may include areas which form part of more than one area established under Schedule 11 to the Police Act 1996 (c. 16).'.

No. 52, in page 5, line 14, at end insert

'but only with the prior consent of the lay justices for that area and in any event not in a way which removes the coterminosity of a local justice area with a police authority area'.

David Heath (Liberal Democrat, Somerton and Frome)

This group of amendments deals not with courts boards but with local justice areas, which will be more familiar to most Members as the petty sessions areas that they effectively replace under the Bill. Amendments Nos. 4 and 5 are simple. They propose that a local justice area should not straddle the borders of courts boards areas or of police authorities under the Police Act 1996. However, I cannot believe that it is anyone's intention to make them do so, and it could be argued that if one requirement is satisfied, so is the other, by virtue of what we have already said about coterminosity.

It cannot be in the interests of good administration if the local justice area—which is, as the smallest unit, the building block of the revised structure of the justice system—were to come under the jurisdiction of more than one courts board area. Conflicting advice could be given to the Secretary of State or Lord Chancellor on the interests of a specific local justice area. Magistrates might not know to which courts board they should address any views on the administration of courts in their bench areas. In short, we would have completely unnecessary confusion.

When we discussed the matter in Committee, the Minister covered his tracks by saying that the courts boards deal with more than just the magistrates courts in their area, and that is true. However, if we are agreed that the local justice areas are, as the Minister put it, the essential building blocks on which the whole structure is based, they should not teeter between two different areas. Even though the courts board has an interest in the family courts, the civil courts and the youth court structure, it does not alter the fact that a single local justice area should fall within a single courts board area; otherwise, unnecessary and easily avoidable confusion would arise.

Amendment No. 5 makes the same argument in terms of police authorities. Such authorities can be very large, and the whole thrust of Government policy, for some years, has been to achieve a degree of coterminosity between police authority areas and all the other agencies that are relevant to the work of the police. Indeed, that argument was made strongly in the debate that we have just had. It was argued that the courts boards should be—wherever possible and with the exception of London—identical to the police authority areas. If that is the case, where is the logic in having a local justice area, dealing with one or more magistrates courts, which straddles police authority areas? It flies in the face of what we are led to believe is the Government's policy, which cannot be what they intend.

The only argument for not clearly stating that in statute, thereby making it the basis of the structure, would be that there was a need for transitional arrangements when petty sessions areas straddled police authority areas and needed special treatment. I have two arguments against that suggestion: first, it would not be impossible to devise transitional arrangements and, secondly and more cogently, it should not happen. If we are to set up a new, unified court structure whose building blocks are to be the local justice areas, those areas should be so constructed as not to go from one police authority area to another, from one probation service area to another or from one CPS area to another—all the arguments prayed in aid in our earlier debate for not having more than one courts board in a police authority area.

When I put all those points together it is difficult to find a reasonable argument against our amendments. My only suggestion for the Minister would be that they do not apply because as the justice areas are already encompassed within the measure, no adjustment will be necessary, and that it is not necessary to include the proposals in the statutes because some future Secretary of State might choose, willy-nilly, to create new justice areas that straddle police authority or courts board boundaries. I do not think that is a sensible argument, however, and I hope that the Minister will not make it.

If we are to set up a unified courts structure, with an integrated system, it should be based on common building blocks making up several local justice areas, courts areas and police authority areas so that there is an organised and regimented structure for the whole country. Both the Minister and I want to see that pyramid. My amendments would make that happen; in their absence, it may not happen.

Nick Hawkins (Conservative, Surrey Heath)

Once again, as we did on this issue in Committee, the hon. Member for Somerton and Frome (Mr. Heath) and I are arguing from a similar perspective. The Opposition take the view that the Bill would give the Lord Chancellor too wide and unfettered a discretion. Currently, clause 8(4) states baldly:

"The Lord Chancellor may make orders altering local justice areas."

There are no restrictions and, under subsection (5), the powers are widened further.

The Opposition want to set up some control on what the Lord Chancellor is or is not allowed to do, but in a slightly different way to that proposed by the hon. Member for Somerton and Frome. We want to include the rather ugly word "coterminosity" that was used in Committee. Under our amendment No. 52, the Lord Chancellor would not be able to alter the local justice area

"in a way which removes the coterminosity of a local justice area with a police authority area".

We want to achieve the same kind of restrictions as those proposed in the Liberal Democrat amendments, but we want a specific requirement that the lay justices be involved in any decision to change. We think that if the Bill required that the lay justices were consulted they would try to ensure that logic and coterminosity remained. No future Lord Chancellor should be able to change things without the prior consent of the lay justices for that area.

We are pressing the Government in the same way as the hon. Member for Somerton and Frome and I did in Committee. The Bill should include restrictions. The Lord Chancellor should not have unfettered discretion to do things that would be illogical and could be damaging, as the hon. Gentleman pointed out. That is the basis for our amendment and I very much endorse his views on the importance of the building blocks. We shall, of course, listen to what the Minister has to say, but I was not persuaded by the Government in Committee and I am not persuaded now. The Bill would be much better if it included the safeguards either of the Liberal Democrat amendments or, more specifically, of our amendment No. 52.

Chris Leslie (Labour, Shipley)

As we have just heard, the effect of amendment No. 4 would be to ensure that no local justice area may include areas that form part of more than one courts board. Amendment No. 5 would ensure that no local justice area may include areas that form part of more than one police authority area. The second part of amendment No. 52 largely covers the same issue. As I said earlier, the Government have made a commitment that courts board areas will be coterminous with criminal justice areas—police authority areas—so I shall deal with all the amendments together.

The amendments are unnecessary and undesirable. The hon. Member for Somerton and Frome (Mr. Heath) tried to pre-empt my justification for resisting his amendments and made very good arguments against them, which I hope to supplement in some small way. In fact, the amendments try to put the cart before the horse, which is the fundamental point of my argument. Currently, the first building block is the petty sessions area, which is more or less what we envisage as the local justice area, and it is the fundamental aspect of the magistrates courts system, whereas courts board areas are an administrative structure whereby the administration of the courts, and not only magistrates courts, is enhanced.

Clearly, in determining a courts board area, consideration should be given to ensuring that petty sessions area and local justice area boundaries are not compromised. That is common sense. However, I am not convinced that we need to erect the concrete walls that the hon. Member for Somerton and Frome suggests. In fact, subsection (6) of clause 8 already provides for consultation with the relevant courts board if boundary changes are under consideration. The powers are not entirely unfettered, but we need to realise that if the local justice area—the petty sessions area—is to be the main building block we need to ensure that there is some provision for latitude without the need for an Act of Parliament.

Amendment No. 5 would require that no local justice area would straddle more than one police authority area—sometimes known nowadays as a criminal justice system area—apart from the City-Metropolitan boundary in London. That is the current position with petty sessions area boundaries and it will also, initially, be the case for local justice area boundaries.

The second part of amendment No. 52 again refers to coterminosity with police areas. I am sorry that the hon. Member for Surrey Heath (Mr. Hawkins) does not like the word "coterminosity", as it neatly describes what we are talking about. We expect a local justice area to have boundaries that will in future remain within those of a criminal justice system area but we would not want to fetter our future discretion by making that a requirement of the Bill. It is important to remember that magistrates courts hear civil and family cases as well as criminal cases, so the organisation of a local justice area should not relate solely to the needs of the police and the CPS. We must allow some latitude to recognise those aspects that could affect the shape of a local justice area, but I do not envisage that this will be a significant issue in the initial establishment that we currently plan.

Amendment No. 52 is slightly different, as the Opposition seek, in effect, to require the consent of only magistrates for any reorganisation of a local justice area. That would be both unworkable and unfair, especially to local authorities and local courts boards, to which equal consideration should perhaps be given on proposed reorganisations. In fact, that amendment would give a magistrate the power to exercise a veto on the proposed shape of local justice areas, and it might even allow for such reorganisation to be prevented by a single opposing magistrate, despite any view that may have been provided by either the local authority or the local courts board. Clearly, that would be undesirable.

Nevertheless, it is, of course, entirely right that local magistrates should be involved in such decisions, which is why we have provided in clause 8(6)(a) for consultation with justices of the peace, as well as the local authorities and local courts boards, before any reorganisation. Amendment No. 52 is quite unacceptable. It cannot be right to give magistrates the power of veto over proposed reorganisations when the local courts board, which is a more representative body, might be consulted only in passing.

I hope that those amendments are now seen in that light—they are unnecessary and undesirable—and I invite the hon. Member for Somerton and Frome to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

While listening to the hon. Gentleman, I was trying to remember the laws of thermodynamics, although not as digression from what he was saying. Is it the third law of thermodynamics that states that entropy increases in any system? It seems a bizarre legislative stroke of genius to legislate right from the start of proceedings for an increase in entropy in the system that is to be set up. That seemed to be the tenor of what the hon. Gentleman said. He said that he had a nice, neat system, but someone at some stage in the future might want to make it very untidy, by creating local justice areas that cross police authority areas or criminal justice areas, as the hon. Gentleman called them. I do not know anyone who calls them criminal justice areas, but I am sure that there is a Government consultative paper somewhere that refers to them as such.

The Minister thinks that a future Secretary of State may want to create local justice areas where they do not exist at the moment, so he believes that he ought to include that possibility in the Bill, or allow for that possible eventuality by leaving arrangements open, because it would be nice to have a bit of untidiness if someone wanted it at some future stage. Well, that is a strange way to create a system.

I listened hard to the hon. Gentleman's argument on amendment No. 4, as well. He reiterated a point that he made in Committee, where I was happy to accept it, that the building blocks—we have all learned to call them that—of the new system are the local justice areas, but he then said that including my amendment, which seeks to ensure that they do not cross boundaries, would somehow give primacy to the courts board, rather than the local justice area. Well, of course, it would not.

If there were a sensible way to frame an amendment saying that courts areas must consist of an integer of local justice areas, I suppose that we could have done such things that way—it would come to exactly the same thing—and that would have presumably passed the Minister's test about which comes first, the chicken or the egg. However, that would not make a jot of difference to the outcome, which is to try to ensure that we have an orderly system that builds on those blocks, so that, if the boundaries of a local justice area spilled over in future, there would be the corollary amendment to the courts board area to maintain the integrity and sensible nature of the system, without, as the hon. Gentleman put it, compromising the effectiveness of the arrangements.

Why should I bother? Those arrangements will be dealt with administratively; they do not have to be stated in the Bill. I simply think that, with a Bill that is essentially intended to unify the courts system, it is preferable to say what we mean, rather than not to say what we mean, and to start from a basis of hard structures, rather than fuzzy structures, which is what the Minister apparently prefers when dealing with an eventuality that he cannot identify.

If we were in Committee, I should be very tempted to press the amendment to a Division. Given that we are now debating the Bill on Report, that I have done my best to persuade the Minister of the correctness of my point of view and that he has failed dismally to respond to what I have said, there would be very little point in pressing the amendment to a Division. So, with some regret and some sadness at the lack of precision that the Minister has evidenced in his response to this group of amendments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 — Chairman and Deputy Chairmen: Selection

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 37, in page 9, line 8, leave out paragraph (c).

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to take Government amendments Nos. 39 and 40.

Government new schedule—Transitional provisions and savings.

Government amendments Nos. 44 and 45.

Chris Leslie (Labour, Shipley)

This group of miscellaneous Government amendments essentially covers four different policy areas, but the amendments are significant none the less and I shall briefly run through the reasons why we have tabled them.

Government amendment No. 37 deals with rules to make provision for the election of the chairman and deputy chairmen of a bench of magistrates in a local justice area. As a bit of background, I wish to say that clause 17 provides for the magistrates of a local justice area to elect from their number a chairman and one or more deputy chairmen and gives the Lord Chancellor a rule-making power to designate how that will operate. Clause 17 would simply re-enact those parts of section 22 of the Justices of the Peace Act 1997 that relate to those elections. However, the framework for the current rules would disfranchise magistrates who have been appointed only recently to a local justice area, restricting participation to those who have experience in that local justice area.

Opposition Members certainly highlighted such issues in Committee. Having heard the debate in Committee and considered such issues, I thought that those arrangements seemed rather odd, so I then agreed to reconsider the provision. It is not the Government's intention to prevent any justices from taking part in the full range of their duties and therefore, to make that clear, we wish to delete clause 17(5)(c), so that there will be no suggestion that only those with more experience should take part in or contest those chairmen or deputy chairmen elections.

We do not have a tradition in this country of limiting any franchise to people who have lived within the borders of a constituency for a certain time. People can vote as soon as they are on the electoral roll. We believe therefore that the same principle should apply to lay justices when choosing the chairman for their area. The current rules to do not exploit such a bias against newer local magistrates, but that change will make it clear that we have no intention of taking such a discriminatory approach.

Government amendment No. 39 relates to the appointment of the Official Solicitor for Northern Ireland. The Official Solicitor is the person responsible for acting in the interests of children and others people where no one else is suitable, willing or able to act on their behalf. Such cases are typically referred to the Official Solicitor by the courts. In England and Wales, the post of Official Solicitor can be filled by either a solicitor or a barrister. However, there is a question mark over whether a barrister would be entitled to appointment to the Northern Ireland post.

Following discussions in Committee—I am grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for pointing this out—I have taken the opportunity to consult the professions in Northern Ireland about a proposed change. Not surprisingly, the Bar considers the current position to be indefensible. However, the Law Society considers that a full consultation exercise might be required before it could take a view one way or the other. While noting the Law Society's requests, I have decided that the opportunity should now be taken to open that post to barristers, so under Government amendment No. 39, the Government seek to end the apparent anomaly and to remove the different eligibility criteria for the posts, allowing barristers the chance to be appointed as the Official Solicitor for Northern Ireland. I trust that the House will agree that that makes good sense.

Government amendment No. 40 and new schedule 1 are transitional, smoothing measures to ensure, among other things, that the provisions for new local justice areas will initially be the same as the petty sessions areas at the date of commencement. The new schedule includes several transitional provisions designed to aid the smooth passage from the current arrangements to the new ones. We believe that users of the court system will find it more helpful to have those included in the Bill, and I hope that the House will accept that that is to be welcomed. Continuity is the main purpose of the new schedule, so that, for example, justices' clerks will be treated as having been appointed and designated as clerks under the Bill and as having been assigned to the areas in which they have been working prior to the commencement of the Act. It will also safeguard their compensation entitlements, about which many Members are concerned. Lay justices who are currently on panels for family proceedings courts will be treated as having been authorised to sit in those courts under the Bill. Those entered on the supplemental list will automatically go on the new list. Entries on the current register of judgments will be treated as included in the new register.

Furthermore, the schedule allows for what are known as savings provisions, which were new to me. The function of a savings provision in legislation is to preserve or "save" a law, a right, a privilege or an obligation that would otherwise be repealed or cease to have effect. We therefore intend the Bill to permit a saving of the contracting-out orders already made under the previous legislation and the saving of provisions to ensure that the positions of Keeper of the Rolls, chairmen of benches, senior district judges and courts inspectors can continue. Often, that kind of transitional and saving provision is made by order, after legislation is enacted, but we felt that it was important to bring those forward so that they can go into the Bill proper, although other transitional provisions may need to be made by order under clause 109(3)(b) later. Again, I hope that the House will agree that that is a positive step.

Finally, Government amendments Nos. 44 and 45 allow the continuing presence of lay magistrates sitting on local police authorities as currently provided for in the Police Act 1996. Although the Bill has the effect of abolishing magistrates courts committees, it is clear that we still need to make provision for a mechanism whereby magistrates are selected to sit on police authorities as under the 1996 Act. Lay justices make a full and professional contribution to the work of police authorities, and that should be continued. The amendments therefore allow for a continuity of input from a key section of the criminal justice system. We propose to adapt the current system used in the appointment of independent members of police authorities, whereby a selection panel provides a shortlist from which other police authority members may make a final selection. The procedure with independent members is one whereby the selection panel produces a long list, which the Secretary of State reduces by half, and the designated members of the local police authority make the final selection. In the case of lay justices, it is sufficient to remove the role of the Secretary of State, and we feel that it is right to have localised rather than Whitehall-based selection.

Nick Hawkins (Conservative, Surrey Heath)

As the Minister has said, this is a group of miscellaneous amendments. First, however, I thank him for his response on behalf of the Government both to the hon. Member for Somerton and Frome (Mr. Heath) in relation to Government amendment No. 37, and to me in relation to Government amendment No. 39. As the Minister has explained, those were matters that we raised in Committee, and it is helpful that the Government have been able to respond positively to our concerns. The hon. Member for Somerton and Frome seized on an important point that the provision should not be restricted to just experienced justices, and, in relation to what I said in Committee, at column 189 of the Official Report of the Committee proceedings on 8 July, I am delighted that the Minister has been able to agree with my view that there was no reason why a barrister in Northern Ireland should not be appointed as the Official Solicitor. I am also not at all surprised—neither was the Minister—that the Bar of Northern Ireland agreed with me on that. I am pleased that the Minister has responded positively. I thanked him in Committee when he signalled that he might be prepared to think about it again. I am pleased that he has not opted for a full consultation and yet further delay, as was suggested by his other consultee, the Law Society, in the Province.

On Government amendment No. 40, which introduces new schedule 1 on transitional provisions and savings, I had one concern. When the Minister responds to my comments and those of the hon. Member for Somerton and Frome I wonder whether he can say a little more about the heading to paragraph 2 in relation to contracting-out. While I understand entirely what the Minister says about smoothing provisions and making sure that there is continuity, it strikes me that a little more detail might need to be given about existing contracting-out provisions and how those are being dealt with. Paragraph 2 of new schedule 1 does not give us a lot of detail. If the Minister is not able to respond today—I appreciate that he might not be able to do so—I wonder whether he would kindly write to me and other hon. Members interested in that matter, to give us a little more detail about how the contracting-out provisions will work in that new schedule.

Government amendment No. 44, the changes to schedule 8 and the introduction of schedule 3A on the selection of lay justice members for police authorities may change with the incoming Conservative Government after the next election because, as my right hon. Friend the Member for West Dorset (Mr. Letwin) has set out, there will be greater local democratic control of policing. I therefore hope that the Minister realises that what he is talking about, in terms of changes to police authorities, may not survive in law for long. Can he say a little more about how sub-paragraph (6) of proposed new schedule 3A will operate in relation to designated members? The term "designated members" is used in various ways both in the new schedule that he is putting forward and elsewhere in this legislation. It seemed to me that it was not entirely clear which were the designated members to whom he referred who have a casting vote when too few people are on the shortlist. I was slightly puzzled with that, and if he is not able to give me a detailed reply today about why only designated members will decide in the unusual situation in which too few candidates are on the shortlist, I hope that he will write to me and to other interested Members.

In a letter that the Minister helpfully sent to me about this group, the Government claim that they are simply introducing an effective procedure. If it is to be an effective procedure, we must all be entirely clear about how it will operate. I am sure that the Minister will agree about that. Government amendment No. 45 seems purely technical, so I have no concerns about it.

I thank the Minister once again for the way in which he has responded to concerns raised in Committee and particularly for agreeing with me about Government amendment No. 39. I hope that when the first barrister in Northern Ireland is appointed as Official Solicitor he will reflect back on the Hawkins amendment to this legislation.

David Heath (Liberal Democrat, Somerton and Frome)

And when the first magistrate who would otherwise have been deprived votes in an election, I hope that it will be recalled equally that it was my amendment that prompted the Government's helpful response. I am grateful to the Minister for listening to what I thought was a fairly unanswerable argument. He clearly felt the same because this evening he repeated the argument that I put in Committee. I am glad that we have sorted out what seemed to be a glaring anomaly, which proves an old adage: we should not just lift bits of old legislation and put them into new legislation without applying the test of whether they work. I am afraid that, because of the volume of legislation with which we deal in this place, we are too prone simply to lifting bits of previous legislation, and assuming that, because no one has complained, they are all right. I have never taken that view. We must look at each and every previous enactment and apply the following tests: first, whether it works satisfactorily; secondly, whether it is right; and thirdly, whether it is open to challenge in the future.

David Lammy (Labour, Tottenham)

indicated assent.

David Heath (Liberal Democrat, Somerton and Frome)

I see the Minister nodding, so he obviously agrees with me on that point.

I thank the Under-Secretary of State for Constitutional Affairs, the hon. Member for Shipley (Mr. Leslie) for Government amendment No. 37 and for Government amendment No. 39, for which the hon. Member for Surrey Heath (Mr. Hawkins) rightly takes the credit. It is a minor but important change that I am sure somebody in Northern Ireland will have reason to complain about at some stage. However, let us assume that his amendment is helpful.

I have very little to say about Government amendment No. 40 and new schedule 1. I have examined the transitional arrangements and they look broadly sensible. I have a slight quibble about them being introduced so late in our consideration. In a well ordered Bill, they might have appeared before us in Committee or earlier during the Bill's consideration in this House. The Bill started in another place and has had a long passage through the House. The transitional arrangements are fundamental to the operation of the new system.

Government amendments Nos. 44 and 45 deal with the constitution of police authorities. I pinched myself when I listened to the hon. Member for Surrey Heath. Apart from his absurd pretension that the Conservatives might form the next Government, it seems that those on the Conservative Front Bench now wish to rubbish the very arrangements that were introduced by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), who still plays a part on the Opposition Front Bench and may play a greater part in the future.

We are dealing with the right hon. and learned Gentleman's proposals—they were not dreamt up by the present Government or a Liberal Democrat policy group. They were pushed through when I had the misfortune to be the chairman of a police authority and had to make them work. I remember thinking that, if anyone ever wanted to bring the whole system of appointment into disrepute, they would create the byzantine structure that he introduced. It is an absurd structure that defies any understanding of how it might sensibly have been put together. It is like that because the right hon. and learned Gentleman originally wanted to appoint the lot. He made no bones about that. His original proposal was that the members of a police authority should not be appointed by local people—the hon. Member for Surrey Heath now says he is very much in favour of that—but that they should be appointed by the Secretary of State.

When that proposition caused uproar across the country, the right hon. and learned Gentleman had to row back and produced a system that was so complicated that nobody could understand it. That was how we ended with the police authority structures that we have today. When I hear the right hon. Member for West Dorset (Mr. Letwin) say that we now have an appalling system for police authorities, I want everyone to remember who set it up—the right hon. and learned Member for Folkestone and Hythe, who is the right hon. Gentleman's colleague on the Front Bench and is in charge of the Conservative Opposition's financial policy. Some interesting discussions must be going on behind the scenes on this and a great many other subjects.

To return to the amendments, I had hoped that the Government might have been even more radical in their response to the present arrangements. However, they have moved a little way in removing one of the absurd stages in the process of the Secretary of State's involvement, and I am grateful for that. On the basis that this is not a police authority reform Bill, I suspect that that is as much as could reasonably be expected. Let us welcome the small progress that has been made while recognising that police authorities still have an odd structure that would repay closer examination in the near future.

Chris Leslie (Labour, Shipley)

I am glad that hon. Members have welcomed some of the Government amendments. Those hon. Members were instrumental in highlighting some of the peculiar aspects that were carried over from previous legislation, and that proves that scrutiny in Committee is of value. I do not know whether they will be termed the Hawkins and Heath amendments or whether Leslie will get a look in, but I am glad that they will appear on the statute book and that small numbers of people will benefit from them.

I cannot immediately help the hon. Member for Surrey Heath (Mr. Hawkins) with the details of what would happen should the shortlist for the selection of magistrates be too small and with which designated members would oversee the process. I shall endeavour to write to him to clarify the issue, but I shall not be drawn into the Conservative party's proposals for elected sheriffs in its desperate last-gasp attempt to curry favour with the wider world. I suspect that that debate is for another day.

I will answer the hon. Gentleman's specific question about contracting out. Orders already allow for the contracting out of certain functions in the courts under the provisions of the Courts Act 1971. Nothing in this Bill calls into question the legitimacy of those orders, which are proper and effective. The provisions merely confirm that the existing contracts will continue. In a sense, it is another way of underlining the fact by having transitional and smoothing provisions to ensure that there is no room for dispute about the facts.

The hon. Member for Somerton and Frome (Mr. Heath) referred to police authorities and the magistrates membership on them. I do not think that this is the right place or time to go into that matter. As he said, this is not a police authority reform Bill, but I hope that the House will recognise that there is much sense in the Government amendments.

Amendment agreed to.

Clause 30 — Places, Dates and Times of Sittings

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 8, in page 14, line 14, after 'courts', insert

'(including family proceedings courts and youth courts)'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss the following amendments: No. 6, in page 14, line 33, after 'place', insert

'in the local justice area'.

No. 7, in page 14, line 33, at end insert—

'(e) a place where specific facilities are available which are necessary in the interests of justice'.

David Heath (Liberal Democrat, Somerton and Frome)

These amendments are in my name, but I am grateful to the hon. Member for Surrey Heath (Mr. Hawkins) and his hon. Friends for attaching their names to them.

We return to the issue of accessibility. The clause is headed, "Places, dates and times of sittings", and that might be considered to be at the crux of whether a court is likely to be accessible to the people who use it. Amendment No. 8 expressly extends the clause's remit to include family proceedings and youth courts, and amendment No. 6 would amend clause 30(5)(d) by inserting the words

"in the local justice area",

which appear in the previous four paragraphs. Amendment No. 7 would introduce a new category of

"a place where specific facilities are available which are necessary in the interests of justice".

I shall expand on what I intend by the amendments. My prime reason for amendment No. 8 takes us back to the position in London and to proposals that were suggested by the Greater London Magistrates Court Authority for a change in the structure of the family courts in the metropolis. The issue has caused a great deal of controversy. I fear that I have included the whole family of the Lord Chief Justice in today's debates, because one of the leading protagonists on this matter is Lady Woolf, the wife of the Lord Chief Justice and a magistrate of 27 years standing. She is the chairman of the Richmond family proceedings court and has a clear understanding of the issues involved.

The proposals would have put an end to the present system for family courts across most of London, particularly south London, and they would have concentrated proceedings in three specialist family centres. Those family centres were to be situated in central and north London.

There is an argument for having specialist family court centres. I understand that argument and I do not intend to ridicule it in any way. The real fear that was expressed by Lady Woolf, as well as by other chairmen of family proceedings Benches and a great many other people across London, was that the consequence of the proposal would be that some of the most vulnerable people to be dealt with by the court system at the most vulnerable time of their lives would be placed in the almost impossible situation of having to travel across London to attend a specialist family centre, rather than having access to family proceedings courts in their own locality.

That proposal quite properly set a lot of alarm bells ringing. We often deal with children at risk, with battered wives, and with people in all manner of appalling circumstances. These people are probably the least able to afford to travel long distances, and the least able to do so in physical terms if they have young children in tow, because that is often what the family proceedings courts are about. Yet they are the people who are being asked to travel from the extremities of the metropolis—down in south-west London, over in Hillingdon, or down in Bexley, for example—to central London to be dealt with by a specialist centre. That is not a sensible suggestion, and it is unlikely to command the agreement of the people of London. Indeed, I have spoken to my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) about this, and he entirely concurs with my views in this respect. He has more experience than most from his own constituency of the difficulties involved.

I know that these plans have now been rethought in the face of the opposition that was expressed in the consultation exercise. I do not, therefore, want to prolong this argument, because I know that we shall be seeing different proposals that will take account of the underlying principles of the scheme and of the realities of life in London and the needs of the customers.

This matter seems, however, to underline the principle that the Government have accepted the Lords amendment, to which I shall draw attention when we talk later about matters of accessibility. Clause 30(2) states:

"In exercising his powers under subsection (1), the Lord Chancellor shall have regard to the need to ensure that court-houses are accessible to persons resident in each local justice area."

Well, hallelujah to that, but let us be absolutely clear that that should apply to family proceedings courts and to youth courts as well. In fact, it should almost do so more than is the case with magistrates courts, because of the nature of the people involved in the proceedings. The arguments that hold true for magistrates courts should hold doubly true for family proceedings courts and youth courts. If my amendment is passed today, as I hope it will be, it will explicitly incorporate family proceedings courts and youth courts in the province governed by clause 30(2), and will therefore ensure that the Lord Chancellor will have regard to accessibility when making the decisions that he will inevitably have to make.

Amendment No. 6 is equally important, and we had a debate on this issue in Committee. The hon. Member for Surrey Heath and I held very similar views on it. There is only one way in which I can interpret clause 30(5)(d). Subsection (5) identifies the places where courts are to be held. The first is

"a place in the local justice area in which the offence is alleged to have been committed".

The second is

"a place in the local justice area in which the person charged with the offence resides".

The third is

"a place in the local justice area in which the witnesses, or the majority of the witnesses, reside".

Fine; I have no problem with any of those. Each of them specifically refers to "the local justice area". When we get to the fourth provision, in clause 30(5)(d), however, it simply refers to

"a place where other cases raising similar issues are being dealt with."

It makes no reference to the local justice area, or to the locality, at all. It could mean anywhere in the country where other cases raising similar issues are being dealt with.

In replying to the debate on this matter in Committee, the Minister laid a red herring across the trail. He said that specific facilities might be required for a particular type of case which might not be available in the local justice area, and that it might therefore be better to hear the case elsewhere. I have made allowance for that eventuality in amendment No. 7, which adds a new paragraph to deal specifically with that issue. I accept that, on very rare occasions, facilities such as video transmission systems might be needed, for example, or some other specific facility that is not available in the local courthouse.

The mischief that we are trying to remedy by tabling amendment No. 6 is the batch-processing of cases. It alarms the magistracy and many others that the Government might deem it convenient, efficient and effective to deal with many hundreds of cases of the same kind in one magistrates court in one central location—however inconvenient that might be for the defendant, the witnesses and everyone else involved—because that would enable the swift prosecution and resolution of those cases. We already see this happening to a certain extent with traffic offences.

The provision in the Bill would allow for an escalation of batch-processing. That is undesirable in all sorts of ways. It is undesirable in terms of accessibility to justice, as I have already suggested, and in terms of the convenience of those involved in the case. It is also undesirable in terms of the interests of justice. When a batch-processing system deals with a great number of similar cases, it is unlikely that the same care and consideration will be given to each individual case, because the similarities of the cases will disguise the differences between them and the individual circumstances of each person before the bench. Lastly, it is undesirable from the point of view of members of the bench. It is unsatisfactory for a magistrate to deal with one kind of case, day in and day out, in that kind of process. Nor is it satisfactory for the remaining members of the bench, who would effectively have had a whole category of offences taken out of their jurisdiction by this process, to be left with the remnants.

The facility in the clause to allow batch-processing must be rigorously resisted. A combination of amendments Nos. 6 and 7 would answer the case that the Minister put in Committee, restore the basic premise that justice should be locally administered in the local justice area—as stated in the remainder of clause 30(5)—and ensure that the Bill was a better one.

My proposals contain two basic premises: the first deals with family and youth courts; the second deals with batch-processing. It is very important that we receive a satisfactory response from the Minister tonight.

Nick Hawkins (Conservative, Surrey Heath)

Once again, our perspective is similar to that of the hon. Member for Somerton and Frome (Mr. Heath). As he rightly said, we raised these matters in Committee. Batch-processing provoked an interesting discussion on 1 July this year, at columns 104 onwards. It was noteworthy that Back Benchers on both sides of the Committee were worried. My hon. Friend the Member for Henley (Mr. Johnson) raised the problem of making journalists aware of when cases were being heard. It is not satisfactory for press coverage if cases relating to one area are dealt with in courts miles away. The Labour Back Bencher, the hon. Member for Ellesmere Port and Neston (Mr. Miller), raised his concerns about batch-processing and gave the example of a constituent who was denied the chance of mitigation.

I am especially aware of the problem because some of the courts in which I practised, such as Northampton, have used batch-processing for fixed-penalty notices for the whole country. As the hon. Member for Somerton and Frome said, it can be an efficient system for the purposes of administrative convenience of the state, but that is not a good reason to allow it to happen.

I also share the hon. Gentleman's concern about family proceedings and youth courts. Although, as he rightly says, some of the issues raised by Lady Woolf have been taken on board so that some of the problems with family proceedings in the London area have been reconsidered, it is fair to say that because there was a threat to introduce the system that worried Lady Woolf and many others, including those who wrote to me, the fear exists that that mentality will continue to operate. Although we have beaten off that risk this time and forced further consultation, it does not mean that those who prefer administrative convenience to the interests of justice will not be tempted to return to the same batch-processing mentality. As the hon. Member for Somerton and Frome said, there is only one way in which the qualifying phrase in clause 30(5)(d) can be read. It is all about administrative convenience.

The House will realise that we have added our names to amendments Nos. 6 and 8 but not to amendment No. 7. That is not because we do not understand what the hon. Gentleman is trying to do, but because we are a bit worried that he is being too generous to the Government by giving them a way to reintroduce their red herring. I thought it better to stick simply to amendments Nos. 6 and 8. There is a judgment call to be made on whether we should give the Government any flexibility by introducing amendment No. 7.

I hope that even at this late stage the Government will be more flexible and recognise that we have a serious concern, which hon. Members on both sides of the Committee recognised. The concern is widely shared by senior magistrates, such as Lady Woolf and others. I hope that the Minister is prepared to accept that the amendments will not damage the Bill but will simply introduce extra safeguards.

Chris Leslie (Labour, Shipley)

Amendment No. 8 would make it clear that the Lord Chancellor's powers to give direction on the places where magistrates courts may sit should include family proceedings courts and youth courts. I assure Opposition Members that the term "magistrates court" already includes those courts unless an Act states otherwise. Section 67 of the Magistrates' Courts Act 1980 and section 45 of the Children and Young Persons Act 1933 describe that more fully. I am more than happy to provide hon. Members with copies of the relevant sections. In short, I assure hon. Members that the issue dealt with in amendment No. 8 is already covered, so it is redundant.

I do, however, appreciate what the hon. Member for Somerton and Frome (Mr. Heath) said about the London specialist family proceeding centres. Clearly, Lady Woolf's involvement has helped to raise that issue in the public arena. The Greater London Magistrates Courts Authority is reconsidering its position, in particular to take account of accessibility. At the moment, location issues are entirely a matter for the authority. The best I can do now is to note the hon. Gentleman's representations.

Amendments Nos. 6 and 7 would allow cases to be heard outside the local justice area only if specific facilities are not available and are needed in the interests of justice. Let me set clause 30 in context. It is necessary to make courts more accessible by removing restrictions on where magistrates courts may sit and by allowing the use of non-court buildings where appropriate. The new unified administration of the entire court estate will allow more opportunities for the co-location of county courts with magistrates courts, especially in rural areas that have no criminal court nearby.

It is true that clause 30(5)(d) allows a case to leave a local justice area if it raises similar issues that are being dealt with elsewhere. That is not simply for reasons of batch-processing the mass of standard cases, as the hon. Member for Somerton and Frome implied. The Government intend to strike the right balance between running an efficient and effective court system. Amendments Nos. 6 and 7 would fetter the flexibility necessary to run such a system by restricting the transfer of cases outside a locality to circumstances related solely to court facilities rather than to the nature of the case itself. Serious criminal cases that cross a wide area of the country, as organised crime and drugs cases often do, might require specific magistrate training or prosecuting or defending needs. In such similar but numerous cases, why should court administrators be inhibited from co-locating them in a place best suited to the circumstances? Why should facilities be the only determining factor, allowing cases to cross a local justice area boundary?

David Heath (Liberal Democrat, Somerton and Frome)

The Minister's rhetorical question goes to the heart of the amendments. There may be a case if facilities are the issue, but the mere similarity of cases, with no crossover of people, is not an argument for reducing the accessibility to the case for local people who are interested in seeing justice done in their area. A crossover of people is, of course, allowed for in other subsections of clause 30.

Chris Leslie (Labour, Shipley)

I am afraid that the hon. Gentleman's amendment is framed in such a way as to allow cases to go outside the local justice area only because of the facilities provided. They do not relate to the services for victims and witnesses that might need to be tailored to particular cases and are not classed as facilities. We need to retain flexibility to allow the courts better to serve the needs of court users. Let me give examples of cases other than terrorism that may need to cross boundaries: serial cases might sometimes need committing across local justice area boundaries to ensure that defendants are tried in a single location for a string of offences; it might not be possible for a local court to cater for vulnerable witnesses or victims with special needs if the problem is not simply one of physical facilities; and consistency of sentencing is sometimes needed when violent demonstrations take place in different locations and could be tried in a single court.

Some Opposition Members seem to dislike the notion of processing certain cases in specialist magistrates courts. Many magistrates courts deal with a lot of cases and are, to be frank, overburdened with important but relatively routine minor offences, such as television licence cases and minor traffic violations. In my view, it would be wrong to force all such cases to be dispersed across the whole country, potentially clogging up some courts and delaying more important cases or preventing them from being heard more swiftly locally, where it matters most. We need flexibility in the system to allocate cases sensibly, with the vast majority of offences heard locally, but keeping open options for specialist courts to hear cases that raise similar issues. I believe that the Bill as framed strikes the correct balance, and I trust that the hon. Member for Somerton and Frome will think again and withdraw his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

First, let me deal with the lead amendment. I am grateful to the Minister for stating explicitly that family proceedings courts and youth courts are included within the definition of magistrates courts for the purposes of this part of the Bill. That is a clear undertaking that the provisions of clause 30(2) about accessibility apply just as much to family proceedings courts and youth courts as to magistrates courts. We will hold him to that undertaking in future. The opportunity to have that put explicitly on the record was a useful end in itself, and I do not intend to take the matter further.

I am also grateful to the Minister for his comments on the position in London. I hope that that will be resolved, but many of us will watch carefully to see what the end result will be and hope that it is acceptable to the very large number of people who reside in London but not in central London. Their needs must be catered for just as much as the needs of residents of the City, Soho or any other part of central London. Many hon. Members will carefully scrutinise any proposals that emerge.

On amendments Nos. 6 and 7, the Minister has entirely failed to persuade me of his case—in fact, he has made matters worse by his comments. Having suspected that what is proposed is batch-processing, we now know that what is proposed is batch-processing of those minor cases that are apparently such an administrative bore for local justices that they have to be put into a central receiving centre and dealt with there. Never mind the interests of defendants, witnesses, or anyone else involved—that is how such cases will be dealt with.

I listened carefully to the examples the Minister gave of what he has in mind. First, he mentioned serial offences. They already come within the provisions of subsection (5), because the offences will have been committed elsewhere, so it entirely proper that they be dealt with on that basis. Secondly, he spoke about cases involving terrorist offences, wherein the main requirement is facilities to house the proceedings properly. Clearly, such facilities are covered by amendment No. 7. Then, quite extraordinarily, the Minister posited that if there were demonstrations in several parts of the country, it would obviously be for everyone's convenience if a single court were to deal with them. That is so far from local justice administered locally that it is laughable.

It is surely not the Government's intention or the intention behind the Bill that, for administrative convenience, cases involving different offences—or allegations of offences—committed in different parts of the country should be heard by a single court that is not aware of local circumstances or the context in which the offences took place, which would cause great inconvenience to all concerned, whether defendants, witnesses, victims or representatives of those involved. Yet that is what the Minister says he is legislating for through the provisions of clause 30. That may be what the Minister wants, but it is not what I want, nor, I suspect, what many hon. Members want.

Chris Leslie (Labour, Shipley)

I realise that the Liberal Democrats do not always have to consider issues of efficiency and effectiveness, but can the hon. Gentleman envisage circumstances in which, for example, training for specialist magistrates or specific prosecution or defence needs might require cases to be heard outside local justice areas, the issue being not facilities, but particular services that might be needed? Is he really arguing that we should never, in any circumstances, consider such cases outside local justice areas?

David Heath (Liberal Democrat, Somerton and Frome)

In the first instance, the matter should be for magistrates for the local area to determine. We are not discussing proceedings in Crown court or the higher courts; we are talking about magistrates courts—the local bench hearing cases involving local offences and applying local justice to their considerations. If the Minister does not understand that, all our debates on the Bill have been a complete waste of time.

Now, stripped of rhetoric and pretence, we see the reality of the Government's proposals. I am not sure that it will profit the House to continue to debate this matter, but I am glad that we now have clarity about the Government's purpose, which gives us a clear objective to vote against. I have listened to the Minister's comments on amendment No. 8 and, in the circumstances, I am prepared to seek leave to withdraw it, but my views on amendment No. 6 have been strongly reinforced by his remarks and I am now determined to press it to a Division.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 6, in page 14, line 33, after 'place', insert

'in the local justice area'.—[Mr. Heath.]

Clause 93 — Award of Costs Against Third Parties

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 53, in page 45, line 6, leave out 'and'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss amendment No. 54, in page 45, line 8, at end insert

', and

(c) the proceedings have been instigated by or with the consent of the Attorney General.'.

Nick Hawkins (Conservative, Surrey Heath)

This matter was debated in detail in Committee at column 171 and the following columns on 8 July. Concern was expressed by a number of organisations, including the Fleet Street Lawyers Society and the Newspaper Society, about the provisions for the award of costs against third parties. I, together with my hon. Friends and the hon. Member for North Norfolk (Norman Lamb) for the Liberal Democrats, presented those views in the debate in Committee.

The Minister gave us some helpful indications, which enabled us to reassure those outside this place on the issues related to clause 93 and the award of costs. In particular, the Minister made it clear that regulations would deal with some of the points that we raised. Nevertheless, there is still the question whether such proceedings ought to take place without the Attorney-General's consent. In relation to matters of contempt of court, as the Minister and the Government well know, it has always been the practice for the Attorney-General to be involved in the decision making. Contempt of court cases on behalf of the Government are usually brought by the Attorney-General. I have not only a great respect for the historic role of the Attorney-General, but a personal respect for the present Attorney-General, because he was chairman of the Bar Council for one of the years that I served on the general management committee—the inner cabinet of the Bar Council—when I chaired the corporate Bar. It would be a helpful safeguard for the Attorney-General, who has always had a role in such matters, to be able to play a part in the decision to make an application for the award of costs against a third party.

It is fair to say that the Newspaper Society and the Fleet Street Lawyers Society suggested further amendments, but I did not entirely accept every part of the case that they made to me. I felt, however, that amendments introducing the requirement that the Attorney-General's consent must be obtained for the instigation of proceedings or the making of any order, such as an application for an award of costs against a third party, would provide an independent safeguard against any arbitrary court action.

We have always been very proud in this country of the freedom of the press. If the Government were to accept our amendments, the Bill's provisions would mirror the statutory consent requirements that already exist in relation to contempt of court proceedings and breaches of reporting restrictions in the court. Guidance that might be drafted by the Attorney-General or regulations are not as good as having something in the Bill. Prior consent of the Attorney-General would avoid injustice, the costs that would result from unmerited proceedings for orders for costs and the making of unmerited orders, even if those were followed by successful appeals.

I hope very much that, on this small point, which does not go as far as some of those representing the press would wish to go, the Government will understand that we have been moderate in our suggestion, which is simply that the Attorney-General's prior consent should be obtained, as in contempt proceedings and proceedings for breaches of reporting restrictions in relation to court proceedings. I hope also that the Minister is prepared to accept our amendments.

Chris Leslie (Labour, Shipley)

I understand why the hon. Member for Surrey Heath (Mr. Hawkins) has raised this point. May I briefly give a little of the background? Clause 93 will introduce provisions that are designed to fill a lacuna in the criminal costs provisions in section 19 of the Prosecution of Offences Act 1985. Section 19 already allows for the court to order one party to pay the costs incurred by the other as a result of the first party's unnecessary or improper act or omission.

Section 19A allows the court to make a wasted costs order against a party's legal representative where costs are wasted as a result of that representative's improper, unreasonable or negligent act or omission. Proposed new section 19B will simply extend liability for wasted costs to third parties. A power for courts to order third parties to pay costs is not novel. A broader power already exists in the civil courts. However, the power introduced by this measure will be limited to instances of serious misconduct by a third party.

I am afraid that I believe that the amendments cannot be accepted, and I shall explain why. We believe that the new provision that we propose contains sufficient safeguards to ensure the protection of third parties. In the first instance, the courts will have to establish that the impropriety constitutes serious misconduct.

As we have explained in earlier debates, we have not tried to set out in legislation what constitutes serious misconduct. Instead, our policy intention is to allow the courts to decide, given the circumstances surrounding each impropriety, whether the third party's actions constitute serious misconduct. The court will have to determine whether the serious misconduct caused a party or parties to proceedings to incur costs and, if so, whether it is appropriate for the third party to pay some or all of them. I say some or all, because the court should also consider the third party's ability to pay. As we have explained in earlier debates, the intention is not to put third parties such as small publishers out of business, but to ensure that if their serious misconduct causes parties to incur costs they should be liable for them, or for an appropriate portion of them.

Before bringing third party costs proceedings, the court will have to give notice to the third party. The third party will have the right of representation at the third party costs hearing, and there will also be an automatic right of appeal. We therefore do not see why it should be necessary or helpful to engage the Attorney-General in criminal third party costs issues when he is not engaged with other costs matters. We rightly trust the courts to deal with the existing costs regimes, both civil and criminal, without the Attorney-General's intervention; and, as I said earlier, the criminal courts can already order costs against legal representatives when their improper, unreasonable or negligent act or omission causes wasted costs. In those instances it is not deemed necessary to bring in the Bar Council or the Law Society, because costs orders are a matter for the court rather than the professions' governing bodies.

The Attorney-General is of course involved in bringing proceedings for contempt of court, but the outcome of a costs order is very different from the possible outcome of being found to be in contempt, when there is a real possibility of being sent to prison. Even in contempt proceedings, it is only necessary to involve the Attorney-General when bringing proceedings under the strict liability rule, when publications appear to have interfered with the course of justice. In other contempt proceedings, we are content to allow the courts to deal with matters themselves.

The courts, both civil and criminal, have been dealing with costs orders for a very long time without the intervention of the Attorney-General. Clause 93 does no more than extend the criminal courts' costs powers to include third parties. We should trust the courts to operate the new legislation as well as they use their existing powers.

I invite the hon. Gentleman to withdraw the amendment.

Nick Hawkins (Conservative, Surrey Heath)

I am not entirely satisfied by what the Minister has said. As I am sure he recognises, there is a legitimate fear among the press that the third party costs provisions could be used oppressively. That is why we thought it would be sensible, when a third party costs order was being sought—against a newspaper, for example—for the Attorney-General to be able to look into the matter before the application for the order was made. As the Minister was helpful in Committee when we raised other concerns on behalf of the Newspaper Society and the Fleet Street Lawyers Society, however, I shall not press the matter.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 97 — Collection of Fines and Discharge of Fines by Unpaid Work

Chris Leslie (Labour, Shipley)

I beg to move amendment No. 38, in page 47, line 27, leave out

'a local justice area, or particular local justice areas'

and insert

'the local justice area or areas specified in the order'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this we may take Government amendments Nos. 41 to 43 and Government amendments Nos. 11 to 36.

Chris Leslie (Labour, Shipley)

I shall try to be brief, as these are relatively minor technical and drafting changes, none of which affects the substance of policy in schedules 5 and 6. If Members indicate that they would be interested, I can speak at length and in fascinating and minute detail about all or at least some of the amendments; otherwise, I shall speak about them generally.

Broadly, the amendments allow nationwide piloting to be within the scope of the piloting undertaken in respect of the fines enforcement arrangements that we envisage. We want to broaden the term "fines officer" to "fines office", so that if a fines officer is off ill we are not caught out by semantics. We want to clarify slightly the definition of "fine", and to tighten provisions in respect of the unpaid work scheme to discharge fines.

Nick Hawkins (Conservative, Surrey Heath)

I am afraid that I must ask the Minister to speak at a little more length on certain points. I hope that he can answer my questions this evening or in writing to me and other interested Members.

The Minister says that some of the amendments are technical. Certainly, amendment No. 38 makes a technical change to insert a reference to

"the local justice area . . . specified in the order".

Will he provide more detail on the reason for that change?

Amendment No. 41 replaces the words "a pecuniary penalty" with the word "any", thus widening the scope of schedule 5. Will he clarify the thinking behind that?

Amendments Nos. 42 and 43 replace "fines officer" with "fines office". That is a sensible and helpful change that makes the provision clearer and more flexible, because the court will not get caught out if a named fines officer is unavailable through illness or absence.

As the Minister said, amendments Nos. 11 to 36 make technical changes to schedule 6 in relation to work orders and the like. However, I wonder whether amendments Nos. 26 to 32 might have a sting in the tail. I sense something sinister in the proposal to refer not to magistrates, but to any court. Is that part of the Government agenda, which we have seen in one or two other contexts, to downgrade the role of the lay magistracy by trying to use stipendiaries—or district judges, as they are now called—rather more? The Minister shakes his head, but I would be grateful for reassurance on the record.

Amendment No. 36 inserts a reference to the national minimum wage. When I first saw the Bill as originally drafted, it struck me that only in the peculiar culture that this Government have brought about since 1997 could anybody think that someone doing work in relation to a compensation order qualifies for the national minimum wage. I hope that the Minister will say that the Government inserted it for the avoidance of doubt, but Conservative Members would think it common sense that such a person could not possibly be so regarded.

I do not want to detain the House any longer, but I should be grateful for the Minister's further clarification on those points.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to spend a long time on the amendments: they are fairly self-explanatory and I have no argument with them. The hon. Member for Surrey Heath (Mr. Hawkins) mentioned amendment No. 36, which relates to the National Minimum Wage Act 1998, and which he took to mean that a person doing unpaid work in mitigation of a penalty would additionally be entitled to the national minimum wage.

Nick Hawkins (Conservative, Surrey Heath)

No, that is not right.

David Heath (Liberal Democrat, Somerton and Frome)

In that case, I misunderstood him; I shall not impute any further meaning to his remarks.

There is a slightly more complex issue that the Minister needs to explain. My understanding is that a notional wage would be attached to any work carried out by a convicted person in mitigation of their penalty, which would count against the total pecuniary penalty incurred as a result of their offence. Here, the 1998 Act probably ought to apply. Given that the notional wage indicates work being done instead of paying a penalty, such work ought surely to be valued, at minimum, at the level of the national minimum wage, to be consistent with the Government's policies. Otherwise, it is being devalued and the offender is, in effect, paying more than they would be subject to paying if they were fined instead. Perhaps I have grievously misunderstood the Minister's intentions—I probably have—but amendment No. 36 seems to introduce an internal inconsistency to the Government's policies. I would expect such work to attract a notional value at least equal to, not less than, the national minimum wage. However, it is hard to understand what other construction can be applied to the amendment.

I think that I take a different view from the hon. Member for Surrey Heath on this issue, although it is clear that I misunderstood what he had to say on it. That said, nor do I entirely understand what the Government had to say on it. They seem to be saying that some form of reduced value work will be offset against a pecuniary fine. If that is the intention, will the Minister publish a tariff, so that we know what value the courts are expected to place on such work in part-payment of a fine? What is the minimum at which they will set the value of that work, or is it open to magistrates courts simply to say that a person who has no means can work for ever and a day in discharging a fairly modest fine? That surely cannot be the intention—there must be some arbitration as to the value of work in such circumstances—but it is not clear what the level will be once the amendment is passed. Perhaps it is set down in guidance, but if so we have not seen it yet.

Chris Leslie (Labour, Shipley)

I knew that I should not have tried to be brief in speaking to these amendments—perhaps I was encouraged by others to ensure that I take a strategic approach to the Bill—but I am happy to provide detail on some of the specific issues raised.

The hon. Member for Surrey Heath (Mr. Hawkins) mentioned amendment No. 38, the purpose of which is to make a small change to clause 97 to allow national piloting of attachment of earnings orders and deductions from benefits applications. Currently, clause 97(5) allows only local pilots to take place before national implementation of the measures contained in schedule 5. National pilots were not envisaged when the clause was originally drafted. However, the courts already have access to attachments and deductions, and in conjunction with the Treasury I have decided that the wider use of attachment of earnings orders and deductions from benefits applications justifies national piloting, given the greater benefits that they will provide across the country. The measures will therefore be piloted nationwide, together with national roll-out of the new offences on provision of means information. I hope that that answers the hon. Gentleman's question.

The hon. Gentleman also asked about amendment No. 41, which seeks to clarify what we mean by a "fine". It is a technical amendment, the intention of which is to reduce the confusion generated by the term "pecuniary penalty" by removing it from the schedule altogether. A "pecuniary penalty" means any financial penalty, and includes, for example, fixed penalty notices before they are registered as fines. The use of the words "pecuniary penalty" in the definition of the word "fine" therefore widens the meaning of that word beyond what was intended—I hope I have taken the House with me so far.

Both the word "fine" and the word "penalty" can mean different things in different enactments. For example, it can be convenient for the term "fine" to cover money ordered to be paid on conviction to someone other than the state. Although it is reasonable to talk about a fine as a pecuniary penalty, not every pecuniary penalty is a fine. We are satisfied that deleting the reference to pecuniary penalties will bring into the scheme pecuniary penalties that are classed as fines.

The hon. Member for Surrey Heath asked about amendment No. 21, and suggested that because we are changing the term "magistrates' court" to the term "relevant court" we intend, in a sinister way, to move discreetly towards a greater use of stipendiary magistrates or district judges in their place. That is not the case. This is simply about providing flexibility and making sure that all the courts, should they be involved with these provisions, have the same powers.

The hon. Member for Surrey Heath says that amendment No. 36 is something to do with the peculiar culture that has existed since 1997. Well, I am glad that our "peculiar culture" includes a national minimum wage, but for the avoidance of doubt, when we are talking about punishing offenders we need to make it clear that when those who cannot afford to pay fines carry out unpaid work to discharge those fines, we shall not actually pay them the national minimum wage for doing so. They do not qualify for it.

As the hon. Member for Somerton and Frome suggested, we may want to introduce an equivalent work rate, and the Bill gives us a regulation-making power to do so, but I must make it clear that we do not intend to pay offenders for the work that they do.

David Heath (Liberal Democrat, Somerton and Frome)

I certainly did not expect the Minister to say that the offender would be paid for the work; the phrase "unpaid work" makes that clear. However, it would be helpful if he said whether he intends to say in regulation that the tariff for unpaid work in place of a fine will be set at the level of the national minimum wage. I think that it should be, and I am asking for the Minister's confirmation that it will be.

Chris Leslie (Labour, Shipley)

I cannot give the hon. Gentleman that confirmation, because I have not decided yet—but the most important thing is to make it clear that the offender will not get a payment, whether the national minimum wage or anything else: the work to discharge a fine will be unpaid. Offenders need to pay the price for their offences, and unpaid work is one mechanism by which they can do so. We need to ensure that the exclusion from the National Minimum Wage Act is in place.

Amendment agreed to.

Clause 100 — Periodical Payments

Andrew Dismore (Labour, Hendon)

I beg to move amendment No. 9, in page 49, line 17, after 'may', insert

', if the claimant consents,'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this we may take amendment No. 10, in page 50, leave out lines 27 to 34.

Andrew Dismore (Labour, Hendon)

I should declare an interest, Mr. Deputy Speaker, because I remain a partner in a firm of solicitors that specialises in personal injury cases, although I have not dealt with any since I entered the House. I also remain a member of the Association of Personal Injury Lawyers; I was formerly a member of its executive committee and I chaired its damages specialist interest group. In that capacity I was closely involved in the original development of what were then known as structured settlements and are now called periodic payments. That was in the late 1980s.

I am a great believer in that system of compensation for the right cases in the right circumstances. There is a risk of overdoing things, but I am pleased that progress in the development of the law in that area, for that important remedy, has been so successful. Nevertheless, problems remain, and the Bill addresses some of them—but unfortunately, new ones are created, especially in relation to consent. I also think that an opportunity was missed when we considered how inflation should be dealt with.

My amendment No. 9 deals with consent. It is important to point out that periodical payments have both advantages and disadvantages. Claimants would not have to fear running out of compensation, as they would if damages were ordered as a lump sum, but periodical payments create a lifetime relationship between the claimant and the defendant which the claimant may find extremely difficult. For that reason, the merits of imposing periodical payments must be assessed on an individual case-by-case basis, and I am concerned that, under clause 100, awards for future pecuniary loss—the lion's share of any award—can be made irrespective of whether the claimant consents. That is particularly important if periodical payments are being linked to the retail prices index in respect of inflation because it would prevent the claimant from looking for a better rate of return. Under clause 100, it is possible for a court to order a periodical payment without the consent of either party, let alone just that of the claimant. That puts the claimant completely at the mercy of the court's discretion and the defendant's arguments. I believe that that is unfair because only the claimant is able to say how an award can best be used to place him in the position that he was in before the injury.

In 1991 I wrote a paper for the Law Commission on that very issue. I summarised my views then and they have not changed at all on this particular issue. I wrote:

"It is the Plaintiff who has been injured by the Defendant, and it should be for the Plaintiff to decide whether he or she wishes to have the damages by lump sum or structured periodic payments. The Court should not have power to compel a Plaintiff to accept a structured settlement if the Plaintiff prefers a lump sum award . . . The only exception . . . should be where the Plaintiff is under a legal disability, when the Court has a role in approving any terms of settlement, and in those circumstances, it may be appropriate for the Court to have the power".

In response to my submission and others, the Law Commission produced a report in 1994. Paragraph 3.38 on page 38 summarises the position:

"The corollary of this liberal principle"—

the question of how the plaintiff should be able to spend the damages—

"is that plaintiffs should be able to insist on receiving their reward in the form of an immediate lump sum payment. Imposition of a different form of award has been seen as interference with freedom of contract. It is also argued by some that it is wrong to introduce paternalism into personal injury awards when awards of damages in other areas of the law continue to leave plaintiffs in receipt of lump sums which they are free to spend as they wish."

Baroness Scotland said in another place:

"We agree with the noble Lord, Lord Goodhart, that the views of the claimant in relation to periodical payments is the important issue."

She continued later:

"The weight to be given to the claimant's wishes, for example, might depend on the reasons for them and the quality of advice on which they are based."—[Official Report, House of Lords, 27 March 2003; Vol. 646, c. 937.]

That is to adopt a nanny state approach to this important issue. Elsewhere it has been suggested that if the claimant wanted to set up a business, the court should start to examine the claimant's business case to see whether it was sensible, but that is putting the cart before the horse.

My experience of claimants over more than 20 years in active practice before I became a Member of Parliament is that they are sensible and cautious people, concerned to ensure that their money will not run out. Whether through a lump sum or a structured settlement, they are concerned to ensure that their money is invested and spent wisely. It is the claimant's right to say how he or she should receive their compensation. In taking that right away from claimants, the Bill creates more problems than it will resolve. It is wrong for the courts to impose an award against the wishes of the claimant, let alone those of the defendant.

However, my main concerns about clause 100 are expressed primarily in amendment No. 10, which deals with the question of how to operate a periodic payment in respect of inflation. The clause provides that such operation should, except at the court's discretion, be by reference to the retail prices index. The current position in common law was restated in the Court of Appeal in three cases only last week. The lead case was Sheppard v. Stibbe. The appeal was brought on behalf of a young boy aged nine, Ben Sheppard, who suffered serious spinal injuries—his five-year-old sister was killed—in a car accident in June 2001. Ben is now in a wheelchair; the driver of the other vehicle was convicted of dangerous driving.

Another case was that of Mr. Page, who suffered brain injuries when a motorcycle struck him when he was 13; and another was a 12-year-old from Bristol, Sonni Cooke, who suffered permanently disabling injuries during birth. The cases were appealed against the refusal by judges in the lower courts to admit accountancy evidence to the effect that the future cost of care in each case would be grossly underestimated if the conventional method—the discount rate or, for our argument, the retail prices index, which is the mirror image of the same argument—were applied, thus grossly underestimating the damages. The Court of Appeal ruled that the substance of the appeals constituted an assault on the rate set by the Lord Chancellor—the discount rate of 2.5 per cent., which was applied to compensation for future losses, such as we are discussing in clause 100.

Lord Justice Laws ruled that if a

"single discount rate is taken across the board, as has been done by the Lord Chancellor's order, the full compensation principle will only be achieved in a rough and ready way. Counsel for the appellants would, of course, roundly insist that that is scant comfort to their clients, who it is said stand to suffer very substantial shortfalls. Be it so on the facts of these cases: still, it cannot in my judgment amount to a proper basis for allowing these appeals to prosper. The court is obliged by ordinary constitutional principles to act in its decisions case by case conformably with the discount rate set by the Lord Chancellor . . . He may be persuaded at the political level to set a different rate. He may (I encourage nothing) be amenable to judicial review. But so long as the rate he has set is extant, the courts cannot in the adjudication of personal injury claims subvert or undermine it."

The effect of the current position—including clause 100— can be seen by using the Ben Shepherd case as an example. Future care costs would be assessed on the conventional basis of the RPI, so he would receive about £900,000 under that head. Between 1963 and 2000, the costs of care increased 2.5 per cent annually above the rate of inflation. If that higher rate were taken into account, the damages would be increased by 149 per cent. to more than £2.2 million. Similarly, compensation for future loss of earnings would go up from about £500,000 to almost £900,000, and damages for medical treatment would be increased from under £700,000 to more than £1 million.

If, as expected, Ben lives into his late 70s, the money will run out and there will be nothing left to pay for his care for the last 30 years of his life. He will be thrown back into dependency on the state. In the past, the practice has been that general damages for pain, suffering and loss of amenity have been used to cross-subsidise the cost of care, but that is effectively subsidising the insurance company and is not the answer.

The Government's position was stated in the other place by Baroness Scotland, who said:

"It is important that the real value of periodical payments can be preserved over the whole period for which they are payable. The indexation of payments is already a matter for the court's discretion and the Bill does not affect that."

However, as I have just illustrated, the courts are not using that discretion in practice. She continued:

"At present, it is common practice to link payments to the retail prices index. However, it would not be appropriate to prescribe this as a blanket index to which all payments must be linked. In some cases it may be appropriate to link different heads of damage to different indices. The court currently has that flexibility."

However—as I have suggested—it is not used in practice. She continued further:

"We believe that it is important to retain the current flexibility and for indexation to be left to the discretion of the court."—[Official Report, House of Lords, 27 March 2003; Vol. 646, c. 934.]

In practice, that discretion is fettered by, for example, the rate set by the Lord Chancellor under the Damages Act 1996 at 2.5 per cent. Now the Government have put the RPI in the Bill, theoretically to reflect the current position, but in practice it would have the effect of further fettering the discretion of the court when awarding damages for future loss by way of periodic payment.

The draft rule amendments to part 40 of the civil procedure rules, which are supposed to bring into effect clause 100, should it be passed by the House, set out the criteria that should be considered when deciding whether to uprate. It says that

"the amount of the payments shall vary annually by reference to the retail prices index, unless the court orders otherwise under section 2(9) of the 1996 Act."

In other words, we are back to where we started. It is a circular argument. The draft practice direction amendments contain nothing to specify how the discretion to depart from RPI should be exercised. I should have thought that if the intention was for that discretion to be used properly, there would at least be something in the draft practice direction to set out guidance to judges on the use of that discretion. In fact, the explanatory notes to the Bill make the position even worse. They emphasise RPI as the appropriate approach. Explanatory note 275 states:

"To ensure that the real value of periodical payments is preserved over the whole period for which they are payable, new section 2 provides that periodical payments orders will be treated as linking the payments to the . . . RPI"—

subject to discretion. Again, that emphasises the RPI as the norm.

Why is that important? Usually, periodic payments are only of use in high-value cases involving serious injury, usually with substantial care costs. The current position, reproduced in clause 100, is inadequate. The greatest proportion of such awards relates to the cost of future care for the claimant and to the claimant's loss of earnings. The costs of both over a long period will increase by considerably more than the RPI, which means that the compensation that is intended to provide for those needs will be insufficient; in particular, the money paid periodically to cover the cost of care will quickly become inadequate to pay for a care regime that the court has said is necessary.

As the explanatory notes show, it is expected that periodical payments will be linked to the RPI in the great majority of cases, so it can be anticipated that the RPI will indeed be applied in that way by the courts, which will be disastrous for the claimants who are in most need of help. Surely, the whole point of periodical payments is to improve on the old lump-sum position. In the original consultation paper on the issue, "Damages for Future Loss: Giving the Courts the Power to Order Periodical Payments for Future Loss and Care Costs in Personal Injury Cases", the then Lord Chancellor's Department noted:

"We consider that periodical payments can provide a fairer and more certain way of ensuring that claimants awarded damages for future losses and care costs, often for the remainder of their lives, receive the compensation to which they are entitled."

The paper stated that periodical payments

"place the risks associated with life expectancy and investment on defendants rather than claimants. This ensures that claimants who live longer than expected enjoy the quality of life they are entitled to, and do not have to fall back on social security when the money runs out."

However, that is exactly what will happen if clause 100 is accepted. If the current position is to be improved, periodical payments should be linked to more relevant indices, such as the average earnings index and the Department of Health's care cost index.

There is wide recognition in the higher courts that there may be a need to index awards by reference to indices other than the RPI. The Department of Health recognises that hospital and community health service inflation is likely to outstrip the RPI for the foreseeable future and concern has been expressed in the Judicial Committee of another place about the ability of awards to keep pace with expense. There is real concern that the cost of future care for the claimant and the claimant's loss of earnings will, over a long period, increase by considerably more than the RPI, which will mean that the compensation that was intended to provide for those needs will be insufficient. In particular, the money paid periodically to cover the cost of care will quickly become inadequate to pay for a care regime that the court has awarded.

The key argument is that while the RPI may be a sound basis for calculating damages for non-pecuniary loss, other more appropriate indices should be used to calculate pecuniary losses accurately, to ensure that the claimant is neither undercompensated nor overcompensated. I understand that the Civil Justice Council's serious injury and clinical negligence committee has also expressed extreme concern about the proposed RPI link.

In Standing Committee, my hon. Friend the Minister said of a not dissimilar amendment that it made no provision for indexation, in which case the claimant would be worse off. Moreover, the suggestion that there should be links to another index raises the worry that insurers would be unable to provide a product, as financial regulations limit the index-linked products that they can supply.

If there were no provision, claimants would be no worse off at common law than they are at present. My main concern is that the common law position needs to be improved and the Bill would not achieve that. My hon. Friend the Minister prays in aid the insurance difficulties, but the insurer stands in the place of the tortfeasor and the purpose of compensation, as was recognised by Baroness Scotland, is to put the victim in the position in which he or she would have been had the accident not occurred. The effect of the clause would be unjustly to enrich the guilty tortfeasor or his insurers at the expense of the innocent claimant victim, contrary to all principles of common law.

Surely, it is the responsibility of the insurance industry to develop new products if periodical payments are to achieve the objectives laid out in the original consultation. While the Bill requires only the majority of cases to be linked to RPI, the insurance industry has no incentive to bring in alternative products.

The Financial Services Authority says that periodical payments have to be linked to the RPI under the close-matching regulations, but back in the late 1980s, we had all sorts of problems with the Treasury, the taxation system, the various controls over the financial industry and how to structure settlements. In practice, all those problems were overcome by various amendments and concessions made by the Treasury. There is no reason why similar amendments could not be made now to provide just and fair compensation to victims. Victims should not lose out. In any event, the argument about insurance products does not apply to claims against the state for clinical negligence, as it is unlikely that the state would purchase annuity products anyway but would proceed on the basis of self-insurance.

What can be done at this late stage? I am realistic; I recognise that the prospect of my being able to put the amendment to the vote and carry it are somewhat slim, but I put it to my hon. Friend the Minister that, even at this late stage, he could issue a clear indication in responding to the debate that discretion should be used to ensure that victims do not lose out, especially on care costs, and to depart from the RPI where it can be shown that claimants would substantially lose out if the RPI applied in respect of care costs. If my hon. Friend were to do that, those who bring such cases could use the Pepper v. Hart principle to ensure that his remarks were brought before the court and claimants would then have a reasonable chance of getting fair and adequate compensation.

The second thing that my hon. Friend could do is to say that he would try to bring before the rules committee his view that the draft practice direction amendments should themselves be amended to set out the circumstances in which discretion is appropriate, for example, in relation to substantial care costs or future earnings. If we were able to do that, it would at least bring to the attention of the courts the circumstances in which claimants would otherwise be undercompensated if the RPI were to seen simply as the norm.

I urge my hon. Friend to say that he will at least consider those two very simple and straightforward things that would ensure that victims do not lose out, that they get fair compensation and that insurers do not get a windfall at the expense of the taxpayer, who will have to pick up the tab through the social security system when the money runs out.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Member for Hendon (Mr. Dismore), from his expertise as an active member of the Association of Personal Injury Lawyers, has obviously considered the detail of what we debated in Committee, when Liberal Democrat Members moved an amendment not dissimilar to that which the hon. Gentleman moved tonight. He is also aware that I have some familiarity with medical negligence cases, although perhaps not his depth of detailed experience. I dealt with such cases at the Bar and in my subsequent work as a corporate lawyer, working in insurance.

As I said in Committee, I am indebted to, among others, my noble Friend Lord Hunt of Wirral and Dr. Gerard Panting and Shelley McNicol from the Medial Protection Society for some of the detailed briefing that I have received in relation to the indexation and RPI issues that the hon. Gentleman has raised.

We in the House are always concerned when any change is proposed that could lead to what has become known in America as defensive medicine—any situation in which surgeons or other medical consultants or doctors would perhaps feel unable to take steps in surgery or other medical procedures that might be vital to the patient's needs but contain an element of risk. If medical specialists were unwilling to use their skills fully because they were looking over their shoulder, worrying about possible negligence claims and the possible insurance position, there would be great concern in the House, and not only among Conservative Members.

Although the Medical Protection Society, which has more than 114,000 members in the United Kingdom alone and more than 200,000 members throughout the world, generally welcomes a move away from lump-sum settlements to providing periodical payments in clinical negligence cases, it has serious concerns about the way in which indexation would operate.

The hon. Member for Hendon has already referred to the debate in another place on 19 May this year, at columns 536 to 538 of House of Lords Hansard. An exchange took place between the noble Lord Goodhart, of the Liberal Democrats and the Minister, Baroness Scotland. In response to clarification by Baroness Scotland of the reference to RPI in this context, my noble Friend Lord Hunt was able to withdraw his amendment, which had sought to limit the operation of an opt-out clause to exceptional circumstances. The hon. Member for Hendon is having another go at getting rid of all reference to the RPI. In Committee, the Liberal Democrats were working on the basis of advice from Mr. David Kemp, QC, who is probably acknowledged as the greatest expert in the field of damages for personal injury and medical negligence.

What we said about the Liberal Democrat amendment in Committee, which is similar to the proposal of the hon. Member for Hendon, is that any taking out of the RPI would virtually stop structured settlements in their tracks. It is difficult enough already to find any kind of insurance-based product that would enable provision to be made for periodical payments, even one that is increasing in accordance with the RPI. In the week before we debated the matter in Committee on 8 July, one insurance company had closed its doors to any new business of that kind, and another company was talking about limiting the range of products that it offers. Continuing attempts are being made in the courts to persuade judges to allow future care costs at a much higher level. To date, those attempts have not succeeded, but great concern was expressed not only by the chief medical officer, Sir Liam Donaldson, that courts may not take into account treatment being available under the NHS, but by the NHS Litigation Authority, which raised the matter with my noble Friend Lord Hunt of Wirral.

What the hon. Member for Hendon has provided is a re-run of the amendment tabled in Committee by the Liberal Democrats. The Government's position then—and now, I suspect—was that the RPI index was the right approach in the great majority of cases. That has been the view not only of the Government but of the insurance industry. What the Opposition do not want is any change to these proposals that would make it more difficult for a responsible body such as the Medical Protection Society to represent its members, that would lead to defensive medicine, and that would make it more difficult for the insurance industry to provide any sort of cover for medical professionals. I suspect that when the Minister comes to respond, he will make similar comments.

On the hon. Member for Hendon's other amendment, what the Opposition say is that the court has to consider the claimant's needs. We expect that rules of court will concentrate on such matters as are in the claimant's best interests. It seems to us that rules of court are the right place for these matters to be dealt with, and that experienced judges can be trusted to use their powers in accordance with rules of court to ensure that the claimant's needs are met. It would not be sensible to make further changes—even though I recognise that the Association of Personal Injury Lawyers holds strong views on the matter—which we believe would lead to the kind of problems of defensive medicine that have been so prevalent in recent years in the United States.

Chris Leslie (Labour, Shipley)

First, I commend my hon. Friend the Member for Hendon (Mr. Dismore) on raising this issue. He discussed the question in Committee, and we talked about it then.

Amendment No. 9 would allow the court to make a periodical payments order for civil court damages only with the claimant's consent. I am afraid to tell my hon. Friend that the Government cannot accept the amendment because it would go against the whole purpose of the provisions on periodical payments. In previous debates on this issue, Members of both Houses recognised the significant benefits of periodical payments. They help to ensure that people receive the compensation to which they are entitled for as long as it is needed; they transfer investment responsibility from claimants to defendants, who are better able to bear it; and they can even benefit defendants, including the NHS, by allowing awards to be managed more cost effectively. The Government believe that a power for the court to order periodical payments is needed to realise those benefits.

The court must be allowed to take into account all the individual circumstances of the case and weigh all the relevant factors against one another in making the order that it considers best meets the needs of the claimant. The Bill provides for rules of court to specify matters that the court must take into account when considering whether it needs to order periodical payments. We fully accept that the claimant's wishes are an important factor in this decision and they will certainly therefore be one of the factors that the court must consider. However, allowing the claimant effectively to veto an order for periodical payments will undermine the whole purpose of this clause, and we cannot allow that.

We do not consider that claimants have an automatic entitlement to receive a lump sum. A central legal principle in awarding damages is to restore claimants, as far as is possible, to the financial position that they would have been in but for the accident. Before the accident, they would have received their future earnings and pension not in a single lifetime lump-sum payment, but in the form of a stream of income against which they could spend, save or borrow as they chose. Periodical payments reflect that position much more accurately than lump sums.

Amendment No. 10 would remove any provision for the indexation of periodical payments from the Bill. Although I recognise concerns about indexation, I do not believe that amending the Bill in this way is appropriate.

Clause 100 deals with how payments of personal injury compensation are made. It does not attempt to go into detail about how such claims are to be valued. The provisions in the Bill merely seek to reflect the current position in which the great majority of orders—whether for structural settlement purposes or for lump sums— are linked to the retail prices index. Moving away from the current indexation position would raise much wider issues of how care and medical costs are calculated, an issue on which the chief medical officer has recently made recommendations relating to clinical negligence. As the hon. Member for Surrey Heath (Mr. Hawkins) suggested, the amendment would raise regulatory issues for the insurance industry, which is restricted in the index-linked products that it can provide. Any change would result in substantial increased costs for the NHS and insurers. It would therefore not be appropriate to consider any change without full and wide-ranging consultation. All the issues and potential impacts of change would need to be taken into account, along with the chief medical officer's recommendations.

The Bill therefore suggests that the retail prices index should be, as it is now, the norm. However, under clause 100 and proposed new section 2(9) of the Damages Act 1996, the court will remain able to take a different approach to indexation when it considers that the particular circumstances of the case make it appropriate. That is a very important provision in the Bill.

I hear what my hon. Friend says about the extent to which procedure rules give guidance on circumstances when the court may depart from the retail prices index, and I shall certainly undertake to consider the matter in more detail. Nevertheless, I remain of the view that the Bill is drafted flexibly and gives latitude and discretion to the court. I therefore invite him to withdraw his amendment.

Andrew Dismore (Labour, Hendon)

I have listened to my hon. Friend and I am rather disappointed by what he said. Nevertheless, I take a crumb of comfort from the fact that he will consider the draft rules and guidance through the code. I urge him to reflect on the fact that the effect of his comments will be to ensure that accident victims will, yet again and as usual, lose out and that the insurance industry will, yet again and as usual, end up through its powerful lobby being quids in.

I will not press the amendment to a vote even though I regard the Government's position as disappointing. I beg to ask leave to withdraw the amendment.

Amendment, by leave withdrawn.

Clause 103 — Official Solicitor of Northern Ireland

Clause 109 — Minor and Consequential Amendments, Repeals, Etc.

New Schedule 1 — 'Transitional Provisions and Savings

Chris Leslie (Labour, Shipley)

I beg to move, That the Bill be now read the Third time.

I would like to take this opportunity to thank all hon. Members for their participation in the debate, particularly the members of Standing Committee D, some of whom are still in the Chamber. I would like to put on record how grateful I am for their help in the passage of the Bill through the Committee. The Select Committee on Constitutional Affairs also gave the Bill close consideration in its first report, for which I am grateful.

The Courts Bill is a key part of the Government's overall aim to improve and modernise the criminal justice system. This Bill in particular contains a wide range of significant improvements to the entire justice system, to the work of the civil and family courts, and to the operation of the criminal courts. Courts are an institution central to the operation of our constitution, and are also integral to a fair and decent society. They need to be focused on good, just decision making, serving the interests of the public, of victims and of witnesses. We rely on the courts to deliver fair outcomes. We therefore have a duty to keep the courts efficient and effective in what they do. The new framework for the administration of the courts provided for in this Bill is a major reform that will create a more modern, more flexible institution, able to respond to local needs and changing circumstances, creating a unified courts administration that brings together in a new executive agency the magistrates courts, county courts and Crown courts. This will mean improved management and better use of resources.

The creation of courts boards will mean more reflective arrangements to replicate those within the community concerned with the input of the courts management, who will be able to look across the bigger picture. These arrangements will be better conceived than those for the magistrates courts committees. There will be new powers to improve safety and security in courthouses, with new court security officer posts being created. Proper arrangements for court inspection are also included in the Bill, as is a more appropriate structure for making court procedure rules and practice directions, along with new powers for the courts to impose costs on third parties for serious misconduct, and new powers for the civil courts to award damages as periodical payments, rather than simply in a lump sum.

Importantly, the Bill also contains new fine enforcement powers. Fine enforcement is a critical issue right now; we need to ensure that the courts have the power to enforce against those who are defaulting on their fines. The Bill also contains new collection order powers for the courts, powers to deduct from earnings and benefits, an ability to allow fines to be discharged by unpaid work, and new powers to pilot innovative collection measures.

All in all, the Bill signals important changes for the administration of justice, and I commend it to the House.

Nick Hawkins (Conservative, Surrey Heath)

I echo the Minister's thanks to the many people who have participated in the debates on the Bill—not only the members of the Standing Committee in this House but those who were involved in another place. I shall turn to what happened to the Bill in another place in a moment. I should also like to pay particular tribute to the Clerks who helped us on the Bill in Committee. Members of the Opposition parties are always particularly indebted to the Clerks for all their help with the tabling of amendments and discussions, and this Bill is no exception. I am sure that the hon. Member for Somerton and Frome (Mr. Heath) would agree that we have been particularly well served by the Clerk who helped this Bill's Committee.

The Bill had a long early stage in another place. Many of my noble friends played a big part in discussions there, including Baroness Anelay of St. Johns and Lord Hunt of Wirral to name but two. The battle was long. More than five months were spent on the Bill. The good news from the Conservative Benches was that during that time we persuaded the Government to accept a wide range of amendments and to make concessions. The combined Opposition forces inflicted defeats on the Government, who accepted some of those defeats with good grace—I see the Minister smiling at that—and accepted that we were right. Further welcome concessions have been made this evening on the Heath and Hawkins amendments, as we have called them. I shall certainly think back to tonight with pleasure when the first member of the Northern Ireland Bar becomes the Official Solicitor for Northern Ireland.

The Opposition led the campaign and won concessions from the Government on things that directly affect magistrates. We succeeded in establishing that the supplemental list should not be abolished, as the Government originally intended, and that justices' clerks should be assigned to local justice areas. We established the fact that there should be a statutory duty on the Lord Chancellor to consult lay magistrates on matters affecting them. We managed to ensure, at least in clause 30, that courts should be locally accessible.We wanted to hold the Lord Chancellor to account for the closure of more than 100 magistrates courts since the Government came to power. When we began the debate in Committee on 26 June 2003, I observed at column 26 that it was unfortunate that the Government had not put the hon. Member for North-West Leicestershire (David Taylor), an acknowledged expert and distinguished lay magistrate, on the Committee. I am delighted that he is in the Chamber. Perhaps he will favour us with some of the things he might have said in Committee had he been given the opportunity to do so.

We also established in another place that an assessment of the Lord Chancellor's performance should be included in the new annual report of the unified courts administration. We further established that if the Lord Chancellor wants to change the guidelines on how the courts boards operate, he must obtain parliamentary approval first. However, we remain concerned that some of the new provisions for courts boards were not initially in a form that won the confidence of the magistracy. It is fair to say that some of the concerns that we and the Liberal Democrats share about courts boards have been ventilated again tonight. The Government were defeated several times in another place on clauses 4 and 5. We wanted to ensure that courts boards have at least two magistrates as members and that if the Lord Chancellor rejected the advice of courts boards, he should give them his reasons for doing so. Those were but two of the defeats that the Government suffered in another place.

The Opposition are enormously indebted to the Magistrates Association and the Central Council of Magistrates Courts Committees for their advice throughout the Bill's proceedings. I have also been grateful for advice from bodies such as the Institute of Legal Executives, the Medical Protection Society, the Fleet Street Lawyers Society, the Newspaper Society and many others. Without the help that we get from such organisations, we would not achieve as much success as we do in another place and persuade the Government to accept the logic of our arguments.

I am still disappointed that the Bill does not protect the position of the lay magistracy enough, that there are insufficient safeguards to prevent yet further court closures, and that we have not achieved enough to stop the Government's agenda of moving to more and more batch processing of cases. We debated and divided on some of those issues this evening.

None the less, I believe that in many of its provisions—certainly those that were not contentious—the Bill will probably become a useful Act. I hope that, even though we have not been able to defeat the Government on all the issues relating to magistrates courts, we will find other means of defending the lay magistracy and preventing further court closures. We hope that, as the Bill has progressed toward the statute book, the Opposition have played some part in improving it substantially from the form in which it originally emerged in another place.

David Heath (Liberal Democrat, Somerton and Frome)

The Bill's genesis lies in another era—an era when the soi-disant Cardinal Wolsey of our time sat secure on the Woolsack in his full-bottomed wig, when magistrates and large parts of the judiciary were desperately concerned about the contents of the Bill, when magistrates clerks felt that they were being given the short end of the stick, and when many people felt that the Government simply had no idea of how to deliver justice effectively and locally other than through a modernising, centralising, integrating process. The Bill has ended in the era of decaff, the era of new "justice lite".

In the process, the Bill has been improved by the attentions of my noble Friends and the noble Friends of the hon. Member for Surrey Heath (Mr. Hawkins). It has been helped by the Government's interest in getting their legislation though and by their listening to some of the arguments—I give credit to the Under-Secretary of State for Constitutional Affairs for having listened to some of our arguments and responded positively. The Bill has been improved because of the weight of opinion outside this place that has been brought to bear on its provisions. The Bill that leaves this House this evening is a much better Bill than the one that was introduced in another place many months ago.

I still have doubts about some of the provisions. We have won serious improvements, but I continue to doubt whether the Bill will deliver the level of accessibility that we want. I would have liked to have seen an explicit recognition of the need for the independence of the judiciary, as well as a better structure for the courts boards, especially those in London. However, I accept that the attentions of hon. Members on both sides of the House, both in Committee and during later stages, have improved the Bill.

None of us has ever quarrelled with the stated intention to provide for a unified court system that will serve the interests of justice and of our constituents better than the present system does. I think that we will achieve that—marginally. I wish that we could have gone further, but I am content that, as it leaves this House, the Bill is sufficiently workable to achieve some of its objectives.

I, too, thank all those who have been involved with the Bill. It has been a delight to work on it as a non-lawyer—a distinction I share with the Under-Secretary of State for Constitutional Affairs. We sometimes felt outnumbered by the lawyers in Committee and elsewhere—

Nick Hawkins (Conservative, Surrey Heath)

rose—

David Heath (Liberal Democrat, Somerton and Frome)

I am being intervened on by a lawyer, to whom I shall give way briefly.

Nick Hawkins (Conservative, Surrey Heath)

Despite the fact that he is not a lawyer and I am, does the hon. Gentleman agree that he and I have in common a slight concern that, just as we approached Report stage and Third Reading, we both received letters from the Lord Chancellor saying that the Bill might be used in another place as a vehicle for yet further changes on criminal procedure rules, which—even though that dog did not bark tonight—did not suggest that the Government had necessarily finished tinkering?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is too modest. Far from finishing their tinkering, the Government had in mind wholesale disruption. However, they were dissuaded from that course of action by one simple fact—they could never get it through another place. The Bill would have returned to the Commons as sure as eggs is eggs, and it would have ping-ponged backwards and forwards—[Interruption.] The hon. Member for Ellesmere Port and Neston (Mr. Miller) says that eggs do not ping-pong, but this one would have done so and destructive tendencies would have been displayed in the process.

Before I extend that metaphor any further, I will accept that it is time to call it a day. However, as I have said, we have established some base camps. Over the next few months, we will see the developing future of the judiciary and the Department, the development of a supreme court, the abolition of the Lord Chancellor and changes in judicial appointments. This is the biggest constitutional change in the judiciary for more than a century. It is essential that we get it right, so I make no bones about the fact that we will scrutinise the Department's next piece of legislation every bit as closely as we have the Bill, and we will make every attempt in, I hope, a constructive way, to make it better. However, if it does not do the job we will reject it either here or in another place.

David Taylor (Labour/Co-operative, North West Leicestershire)

The hon. Member for Somerton and Frome (Mr. Heath) expressed regret that he is not a member of the large minority of professional lawyers in the House. Neither am I—I am a member of the even more reviled minority of accountants.

David Heath (Liberal Democrat, Somerton and Frome)

As a matter of record, I expressed no regrets whatsoever—it is a badge of honour.

David Taylor (Labour/Co-operative, North West Leicestershire)

I accept that clarification and correction, but I draw to the attention of the House the fact that I am a member of the Magistrates Association, and was a lay magistrate on the Ashby petty sessional division in the '80s and early '90s sitting at Coalville courthouse, and am now a member of the supplemental list of that bench.

Unifying the administrations of all the courts in England and Wales is a defining point in the history of the lay magistracy, and a watershed in the development of the judicial system. In future, magistrates will be welcomed as full partners in the judiciary—some may say that that is long overdue—and will share the same rules, guidance, guidelines, practice and procedures. The Bill introduces sweeping organisational changes to the court system in England and Wales, and many of its clauses relate to the lay magistracy. When it was first published, our concerns focused on the role and function of what were then called courts administration councils—now courts boards. The key matters about which the lay magistracy expressed concern included consultation with magistrates, as the hon. Member for Surrey Heath (Mr. Hawkins) mentioned; the size and number of local justice areas; the recruitment strategy for magistrates—I am not yet convinced that one exists that is worthy of that name; and supplemental lists, the future of which I am glad has been secured. The House will have heard me say that I am a member of such a list. The lay magistracy also had reservations about the grounds for removal of magistrates from the bench; the training of magistrates; and the roles and powers of justices' clerks and fines officers.

Amendments to the Bill in the House of Lords have fully met some concerns and improved the situation regarding others. However, there is great anxiety that none of those gains should be lost. The Government must keep certain matters under close review, and I shall give a small number of instances. In relation to the roles and functions of courts boards, for example, the unified administration of magistrates, crown and county courts naturally entailed the replacement of both magistrates courts committees and the Court Service. In their place, local management bodies with executive powers were needed. The original proposals for the court administration councils were quite unsatisfactory, as they were a hybrid of management and consultation. They appeared to be toothless talking shops with no local ownership and no ability to prioritise local requirements or reflect local needs. Magistrate membership of the CACs was minimal.

Although the Government remain firm about the courts boards' role being non-executive, amendments to the Bill have improved the situation and resulted in courts boards being given an effective role and the ability to make genuine decisions. We welcome that. The Bill now provides that at least two magistrates will be members of each courts board. I congratulate the Government on these changes, and all those in the House and in another place who brought about the changes through pressure.

Full executive power remains the preference of many magistrates, and any further strengthening of that role would be welcome. Any loss of the powers that have been gained would be disastrous.

The number of courts boards has yet to be decided, but account must be taken of the desirability of ensuring that their areas are coterminous with current police authorities. It is important that the number should not be lower than 42, the number of police authorities, in order to retain that vital local accountability and identity. I urge the Government to accept that figure and acknowledge the importance of that principle.

On consultation, as the hon. Member for Surrey Heath said, after much pressure in this place and elsewhere, not least from Back Benchers, the Government have imposed a duty on the Lord Chancellor to consult lay justices on matters affecting them in the performance of their duties. It was disappointing that that was not in the original Bill, but its inclusion in it now is to be welcomed. This is a separate matter from the administration of the court, but it is vital for confidence in the system. It is a welcome restatement of the centrality of local people to local justice.

Frequently, at Question Time, Ministers restate their view of the importance of local people administering local justice to local people in local courthouses. Current bench areas are to be renamed local justice areas, and we have been assured that the boundaries of these will be the same as existing benches to begin with. Any changes thereafter will involve consultation, but I regret that there are no guarantees or safeguards against future rationalisation or centralisation.

The local justice areas must remain local. The greater distances already travelled following court closures and amalgamations are putting a strain on the court system and undermining local justice. Court closures have an enormous effect on a number of agencies and on the general public. The police have to spend more time coming to court for criminal matters. Youth offending teams, which are essential to the youth court, and the Children and Family Court Advisory and Support Service, which is essential for family proceedings, lose links with their local courts. Those who have to attend as victims or witnesses suffer cost and inconvenience, and there is a greater risk that they will simply fail to appear.

Newspapers cover courts less frequently if they are more distant, and that weakens the deterrent effect of judicial hearings and penalties. Should there be yet more court closures, there would be a related negative impact on the recruitment and retention of magistrates. Clause 30, as we heard, specifies that

"the Lord Chancellor shall have regard to the need to ensure that court-houses are accessible to persons resident in each local justice area."

The wording was rightly designed to cover both geographic and physical accessibility and is a crucial component of the Bill.

On justices' clerks, the relationship between justices' clerks and benches is of the highest importance. I am pleased to see that clause 27 retains a specific link by assigning a justices' clerk to specific local justice areas. It is a welcome addition to the original Bill, and it must be a central feature of the new system.

Finally, on fines officers, magistrates are broadly content with the new fines officers and the fines collection scheme. We are satisfied that the benches will retain judicial control, and that fines officers will be operating a scheme that has been agreed and imposed by a bench. Benches will also be able to retain a case, rather than make a collection order, if they think that is the proper course of action. The piloting of the collection scheme in order to test the efficacy of various options within it has met with wide support.

The unified administration recommended by Lord Justice Auld has great benefits for court users and for the magistracy. For court users, there will be a clear understanding of the court system, a commonality of procedures and processes, and a logical use of court buildings. There is potential for a further streamlining of transfer of cases between magistrates courts and Crown court, and between family proceedings courts and county courts.

For me, two key questions remain and I would like the Minister to address both. First, how will the unified administration of the courts affect the relationship between the magistracy and the higher judiciary? There is great potential for much more contact with the higher judiciary and vice versa, which can only improve a consistency of approach to judicial decision making. For magistrates courts, there is an existing special relationship with justices' clerks, who must be part of any judicial consultative group.

Secondly, is there an adequate number of justices? If not, what can we do to address that and how many will be required? Any new system of court administration will depend heavily on those foot soldiers of the whole process, the lay magistracy, so we must have the appropriate number in appropriate places who are appropriately trained and appropriately committed. However, the number of justices has decreased dramatically over the past few years. Now, the magistracy is approximately 3,000, or some 10 per cent., under strength.

We know that the Lord Chancellor's Department has a national recruitment strategy, but it has to be backed up with resources, particularly those aimed at encouraging employers to allow their magistrate employees time off work. Inability to have time off for bench duties is a huge disincentive to applying for the magistracy and the most common cause of resignations.

The Bill is a major step towards modernisation, transparency and justice for all. I support its core conclusions and its core clauses, and I believe that the improvements made to it enable it to be a measure that I can support. I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.