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Baroness Anelay of St Johns moved Amendment No. 53:

The noble Baroness said: With the leave of the Committee, I shall also speak to Amendments Nos. 53A, 53B and 54.

I tabled these amendments to ask the Government to put on the record what role they see for the justices' clerk in the future, with regard not to his role in advising magistrates but to his day-to-day functions. Do the Government anticipate the further transfer of the functions of the lay magistracy to the justices' clerk?

On Second Reading, the Minister said:

    "The powers of the justices' clerk in the Bill are a re-enactment of existing powers".—[Official Report, 9/12/02; col. 83.]

She is saying that I should not be unduly worried.

The Government may have no intention to transfer further activity from the magistrates to the justices' clerk. However, the drafting of subsection (1) is so open that it would allow rules to be made in the future for the further transfer of functions from magistrates to justices' clerks. Why do the Government want the drafting to be left so open, unless they want to keep their options open to transfer functions away from magistrates' courts?

I listened with care to the remarks of the noble and learned Lord, Lord Ackner, when he stated on Second Reading that Clause 23 was "objectionable in one respect". It is that one respect that I have picked up in this amendment. He said:

    "Why cannot the Lord Chancellor define on the face of the Bill what functions currently done by JPs he wants to be done by clerks in the future? The provision, as it now stands, would allow for civil-servant-driven justice and is undesirable".—[Official Report, 9/12/02; col.63.]

I agree entirely with him.

Will the Minister respond to the point put so clearly by the noble and learned Lord, Lord Ackner? Will she also give an explanation of how much or how little of the current functions of the magistrate may be transferred overall?

Amendment No. 54 was tabled simply to probe what the Government have in mind for the work to be done in the new centralised system. In their quest for flexibility, do they intend to develop any new categories of assistant to do court work, who will not

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be subject to the same qualifications as justices' clerks and their assistants? We have just had a brief debate with regard to whether justices' clerks must be qualified. I listened with interest to the remarks made by other Members of the Committee. I am aware of the changes over the years with regard to the legal qualifications that justices' clerks must possess. I hope that in responding to the amendment, the Minister can clarify what qualifications justices' clerks are expected to have. I beg to move.

Lord Clinton-Davis: With the greatest respect, I see no point in Amendment No. 54. If the noble Baroness, Lady Anelay, wanted to discuss the purpose of Clause 23 in any shape or form, she could have done so by putting down a notice that she wanted to discuss this issue. I see no point in the amendment that she tabled and she did not seek to argue any point.

Baroness Anelay of St Johns: It may be convenient for the Committee if I respond now, although I did attempt to argue the point. With Amendment No. 54, I am trying to find out what other persons the Government may want to do such highly qualified work. I am trying carefully not to table amendments to this clause that would lead either the magistrates or justices' clerks to assume that I was launching an assault on the role of the justices' clerk. As the noble Lord knows, the functions so far transferred to the justices from the justices' clerk, not without some controversy on occasion, are being properly carried out. Amendment No. 54 was tabled simply to get the Government to say what other people they were talking about.

Lord Clinton-Davis: I wish that I could agree with the noble Baroness, but I cannot. If she wanted to discuss any of the provisions of the clause, she could have done so, but to put down a meaningless amendment—a point which has been underlined by what she said—is purposeless.

The other amendments are also utterly worthless. The word "currently" should not be applied in statute in any form. Does the noble Baroness really mean to apply it? I cannot believe it. As for the other amendments, I do not know about the omission of the word "to" in lines 33 and 34. She may have a point, but I doubt it.

Lord Graham of Edmonton: I arise in puzzlement. Surely a range of consultations take place before changes are made, not only in respect of functions and duties. I am struck by the point that my noble friend Lord Clinton-Davis raised about the introduction of the term "currently". I assume that "currently" means "at the moment" or "presently". If the functions and duties are constantly being considered and marginally changed, they are constantly and currently being updated.

I cannot for the life of me see the necessity for the amendment that would prove more of an impediment to flexibility and easy working than that which currently applies. I am all for caution and not

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proceeding too quickly, especially as regards the law. Thousands and thousands of people are far better qualified than I am in this matter. I do not refer to professionals but to lay people. They watch these matters like hawks. I cannot believe that the noble and learned Lord the Lord Chancellor and his officers and Ministers will undertake to do too much too quickly or too drastically. I invite the Minister to tackle the sense or, as I see it, the nonsense, of allowing the term "currently" to be spatchcocked into the Bill by the amendment we are discussing.

Baroness Anelay of St Johns: The noble Lord, Lord Clinton-Davis, took me to task in relation to my explanation of Amendment No. 54. However, I had not explained the amendments which refer to the word "to". I am simply puzzled with regard to what one does to a magistrate. That is simply a drafting point and no more. What does one do to a magistrate that one does not do before him?

5.15 p.m.

Baroness Scotland of Asthal: I hope that I can assist the noble Baroness. Clause 23 remodels Section 45 of the Justices of the Peace Act 1997. For completeness, it may help if I read out what Section 45 currently states:

    "Rules made in accordance with section 144 of the Magistrates' Courts Act 1980 may (except to the extent that any enactment passed after this Act otherwise directs) make provision enabling things authorised to be done by, to or before a single justice of the peace to be done instead by, to or before a justices' clerk".

Clause 23(1), in slightly more simple language, basically redraws Section 45 but says the same thing. It sets out the functions of a justices' clerk and empowers the Lord Chancellor to make rules allowing a justices' clerk, or an assistant to a justices' clerk, to perform the functions of a single justice of the peace. The Lord Chancellor currently makes rules on the advice of, or after consultation with the Magistrates' Courts Rules Committee, but he will also now consult the Criminal Procedure Rule Committee and the Family Procedure Rule Committee before making such rules. That is the only change of substance to the provisions of Section 45 of the Justices of the Peace Act. I am in sympathy with the puzzlement of my noble friend Lord Clinton-Davis and that of my noble friend Lord Graham. The noble Baroness said that the amendment was a probing amendment. I respond in that vein.

Amendment No. 53, which seeks to amend subsection (1) of Clause 23, would limit those functions of a single justice of the peace which a justices' clerk is presently authorised to do to those that currently exist. I hope that the Committee will not object if I too wonder what period is covered by the term "currently". As has been said, that period would be forever changing. More to the point, I should stress that subsection (1) is not a new provision. I have outlined the precise nature of Section 45 of the Justices of the Peace Act 1997. As I said, Clause 23(1) effectively re-enacts that provision. I also refer to Section 49 of the Crime and Disorder Act 1998 which sets out certain powers which are exercisable by a

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single justice and provides that rules may permit them to be exercised by a justices' clerk. We do not think that it would be desirable if even the smallest change in the future had to be made by primary legislation, as would be the effect of this amendment, instead of by rules. I am sure that that is not what the noble Baroness intends. I should add that rules made under Clause 23 may be made only after consultation with the rule committees.

Amendments Nos. 53A and 53B would remove the word "to" in two places in Clause 23(1), so that instead of referring to things done "by, to or before" a justice or a justices' clerk, it would refer to things done "by or before" them. As I mentioned, Clause 23(1) effectively re-enacts the provision in Section 45 of the Justices of the Peace Act 1997. This provision was first made in the Justices of the Peace Act 1968, and the phrase "by, to or before" has been included ever since then and is well understood by all those who have sought to implement it.

It has been accepted for over 30 years that it is necessary for efficiency that justices' clerks should be able to undertake some of the functions of justices of the peace. We see no reason to draw back from that policy by deleting the word "to", which would have the effect, for example, that an application made under statute "to" a justice could not be made "to" a justices' clerk, even though it was the sort of matter that did not require the involvement of a justice. Clause 23(1) therefore does nothing new. I hear the phrase whispered, "But it is unnecessary". I hope that the Committee will appreciate that, because of the way in which other statutes are framed, that "to", which looks somewhat oddly placed here, does in fact become necessary. The Committee will be aware that our most skilled and wonderful lawyers are capable of finding a hair to split on the least possible occasion. The statutes in which the word "to" is included would be encompassed within the rubric we are discussing. I hope that the noble Baroness will be satisfied with that response.

Amendment No. 54 appears to seek confirmation that those functions authorised to be done by a justices' clerk or an assistant to a justices' clerk must not be done by any other person. I respectfully say that I do not see that this amendment really adds anything. The wording in subsection (2) of Clause 23 already specifically states that these functions are authorised to be done by a justices' clerk or an assistant to a justices' clerk. There is no mention of any other person undertaking these functions. Again, I should make it clear that the subsection is very similar to the present statutory provision in Section 45(2) of the Justices of the Peace Act 1997. In view of that, I hope that the noble Baroness will feel able to withdraw the amendment.

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