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Lord Kingsland: With great respect to the noble Lord, as I said at the outset, my attitude to the wording of Clause 59 will depend very much on what the noble Lord's reaction is to the amendments to Clauses 60 and 61. If the noble Lord does not intend to accept those amendments, I shall oppose the Question that the clause stand part of the Bill. So, with respect, in dealing with my submissions on Clause 59, the noble Lord has to deal with questions relating to Clauses 60 and 61.

Lord McIntosh of Haringey: Amendments are proposed to Clauses 60 and 61. I want to do the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby, the courtesy of hearing their arguments on those amendments, and then I propose to respond to them. It would be discourteous of me to do otherwise.

Clause 59 removes the requirement that a person may not be appointed as a justices' chief executive without specified legal requirements. I commend the clause to the Committee.

Clause 59 agreed to.

Clause 60 [Role]:

Lord Gisborough moved Amendment No. 319:

Page 36, leave out lines 7 to 10.

The noble Lord said: In speaking to Amendments Nos. 319 to 322 I hope that I shall not repeat too much of what the noble Lord, Lord Kingsland, has said.

Recently, the previous Lord Chancellor stated that MCCs are important protectors of judicial independence. They must maintain the boundary between administration and judicial decision-making.

During the passage of the Police and Magistrates' Courts Act 1994, the then Lord Chancellor laid great stress on the importance of the judicial independence of the courts. The Act defined clear responsibilities for magistrates' courts committees and provided for the appointment of justices' chief executives, whose duties were also outlined.

To reflect the concerns acknowledged by the then Lord Chancellor, Section 48 of the Act recognised the risk of magistrates' courts committees and justices' chief executives interfering with the independence of a justices' clerk and legal staff in relation to legal functions and therefore provides that such officers shall not be subject to the direction of the committee or the justices' chief executive when performing legal

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functions. Only the justices' clerk, and through him his staff, has the statutory responsibility of giving advice to magistrates.

The 1994 Act, now incorporated in the Justices of the Peace Act 1997, makes a clear and crucial distinction between the justices' clerk as a legal adviser and the justices' chief executive as the executive officer and resource manager of the magistrates' court committee and defines their separate responsibilities.

In the White Paper, Modernising Justice, the Government's stated intention is to improve the management of magistrates' courts and the legal support given to lay magistrates by making a clear distinction between the two functions. Those advising magistrates need to be able to concentrate upon that important function.

I support the Government's contention that dedicated and skilled administrators who are fully engaged on that task are required to manage a modern magistrates' courts service. Justices' chief executives support committees in planning and managing the efficient and effective administration of the courts in the area.

At present, justices' clerks continue to be responsible in primary legislation for many administrative matters, often delegated to administrators. It is these powers and duties which can be transferred to the justices' chief executive under Clause 61. However, duties of a legal and judicial nature which are not protected by the provisions of Section 48 and the Justices of the Peace Act 1997 must never be subject to the direction of a justices' chief executive.

The temptation for justices' chief executives to meet government targets in the guise of co-ordinated and planned strategies, based upon performance indicators and unit costs with the prosecuting authorities at the expense of dispensing justice impartially, fairly and effectively, will be called into question.

The basis of the proposed new Section 41(6) of the Justices of the Peace Act 1997 in Clause 60 is fundamentally and constitutionally flawed. If a person has a statutory duty to perform, he must do it in an unfettered way. If the Government do not wish a person to possess such powers, then remove him and place him in some other office. Do not compromise this situation by the directions of another, as it could compromise the very foundations of judicial independence and public confidence in it. If such a transfer is to take place, then surely Parliament must scrutinise those powers. It is not right that they should merely be defined by the Lord Chancellor in some statutory instrument.

Even the magistrates' courts committee cannot direct the justices' clerk under the clause. We should ensure that in judicial and legal matters the justices' chief executive should not do so.

I beg to move the amendment to protect the judicial independence of the justices' clerks and that of the magistrates.

Lord Phillips of Sudbury: At this time of night, I intend to make only one point in support of the underlying purpose of the two amendments which are grouped together. I am aware that the noble Lord, Lord

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Kingsland, and the noble Viscount, Lord Tenby, have already referred to the underlying principle, which I am sure no one in the Committee would seek to subvert. It is to retain to the justices their full judicial powers, untrammelled by the intervention of a clerk or a justices' chief executive.

I wish to ask the Lord Chancellor to consider the impact of Clause 60(1) in so far as it would introduce into the Justices of the Peace Act 1997 a new Section 41. I believe that it is not currently clear. If one reads new Clause 41(1) together with new Clause 41(5) and then tracks over to Clause 61(5) of the Bill, it is not clear--and obviously the matter needs to be examined--that the concerns raised by the two amendments are met.

As I read it, under new Clause 41(5), everything that a justices' chief executive may do shall be subject to directions given him by the magistrates' committee. If that is correct, if every function that the justices' chief executive has under the Bill is subject to the directions of the magistrates' court committee, I believe that the anxieties of those proposing the two amendments are met. But I am not sure that that is the case when I read the three clauses. It is not clear and it would be helpful to have a response.

Lord McIntosh of Haringey: The effect of Amendment No. 319 would be to remove the subsection which provides that it is the duty of the justices' chief executive to make arrangements for the effective and efficient administration of the magistrates' courts within the area of the magistrates' courts committee which employs him as chief executive.

The post of justices' chief executive, as it is now properly called, we agree, was created in 1994 to carry on the day-to-day administration of the courts. Every magistrates' courts committee has long since appointed a justices' chief executive to manage the administration. The time is now ripe to look again, in the light of this experience, at how the relationship between the committee and the chief officer works.

Many reports by the Magistrates' Courts Service Inspectorate highlight the need for committees, while keeping a close watch on performance, to step back from operational management. The committee is there to decide strategy and set standards and to monitor and be accountable for implementation and achievement.

Clause 60 removes the committee's responsibility for allocating tasks among staff and determining administrative procedures. The day-to-day running of the courts' committees' area is the responsibility of the justices' chief executive.

This clause achieves that arrangement. It clarifies the responsibilities of justices' chief executives as line managers for all staff of the committee. It places the responsibility for allocating tasks and determining procedures with the chief executive. Clause 60 clarifies the relationships between and the functions of the committee and its officers. That clarity is important to achieve better management and improved accountability in the administration of magistrates' courts. It is appropriate for the modern management of today and in the future.

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New Section 41, subsection (5), confirms that a justices' chief executive shall perform his duties in accordance with any directions given to him by the committee. The justices' chief executive is ultimately accountable to the committee for the efficient and effective administration of the magistrates' courts in the area. If Amendment No. 319 were accepted it would remove the basis on which the day-to-day duties of running magistrates' courts are allocated. No one would have responsibility; the noble Lord's amendment would leave a lacuna.

The effect of Amendments Nos. 320 to 322 would be to extend the provisions which protect the independence of justices' clerks in the exercise of their duties, as set out in Section 48 of the Justices of the Peace Act 1997, the consolidation Act. The new Section 41 introduced in Clause 60 makes it clear that the justices' chief executive is responsible for making arrangements for the efficient and effective administration of the magistrates' courts in his area. The justices' chief executive may give directions to any of the staff of the committee, including justices' clerks, in respect of those administrative responsibilities and any other functions conferred on them by or under any enactment. It is clearly appropriate for him to do so.

There is one important exception to these powers of direction in Clause 60, and that is to protect the independence of the judicial process contained in Section 48 of the Justices of the Peace Act. Noble Lords may recall that the separation of judicial and administrative functions was debated in 1994. I do not conceal that those were difficult debates; I took part in them from the Benches opposite. As the then Lord Chancellor observed during the course of Third Reading, the essential function of the justices' clerk is to advise his Bench in an individual case. Parliament accepted that it is possible to differentiate between judicial and administrative functions.

The integrity of the judicial process in deciding individual cases must be entirely free from direction. When justices' clerks or their deputies are advising magistrates in individual cases, or when they are exercising their own judicial powers, Section 48 of the Justices of the Peace Act provides that independence. The new Section 41, which is inserted by Clause 60 of the Bill, makes it quite plain that justices' chief executives may not give directions to justices' clerks in relation to matters set out in Section 48. Moreover, it is quite clear from the new Section 41 that the responsibilities of the chief executive relate to the efficient and effective administration of the magistrates' courts for the area and not to the decision-making process in individual cases.

We have heard of instances where justices' chief executives have purported to issue directions that would have the effect of interfering in individual cases; for example, in the area of fine enforcement a direction that fines must be set at a particular level, or remitted, or not imposed in some circumstances. If that has happened, it is entirely wrong. In those examples, Section 48 is not being applied as it should.

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There is no reason why there should not be general policies, which have a part to play in promoting consistency of treatment. There may be several justices' clerks within the area of a magistrates' courts committee; the obvious person to promulgate information across the whole area, often through the justices' clerk, is the chief executive. For example, I would expect justices' clerks to be informed about the minimum amount that may be collected by credit card payment before the administrative charge exceeded the amount of the payment. Directions may go as far as saying that this information must be passed to magistrates, but it must always be made clear that such information is, in every individual case, subject to the absolute discretion of the person holding the judicial discretion.

There are other examples: the committee's general policy on fine enforcement, including such matters as which types of enforcement officers are generally to be used, with which bailiff companies the committee holds a contract, and the types of payment method available; good practice or procedure the Government wish to promote as helping to reduce delays; and standard operating procedures on such matters as the offices at which certain documents are to be lodged, and which courthouses have suitable facilities for disabled people.

I have not heard any convincing arguments as to why a justices' clerk should not be subject to direction by his line manager, the justices' chief executive, for all functions other than those protected by Section 48 of the Justices of the Peace Act. On that basis I invite the noble Lord to withdraw the amendment.

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