Select Committee on Constitution Third Report


Reply from the Lord Chancellor, the Lord Irvine of Lairg

Courts Bill

Thank you for your letter of 24 December 2002 expressing the concerns of the Select Committee on the Constitution over the Courts Bill.

I agree that the administration of the courts is a matter of constitutional significance. As Lord Chancellor, one of my responsibilities is to ensure the overall efficiency of the justice system and to be answerable for this, through Parliament, to the public. The Courts Bill places the Lord Chancellor under a statutory duty to secure the efficient and effective administration of all courts in England and Wales, except for the House of Lords, and will enable me to set up a unified administration. I propose to do this through an executive agency, providing decentralised management and local accountability within a national framework. The Government made a commitment in the White Paper "Justice for All" to involve stakeholders fully in the detailed design of the new organisation. Before guidance and a framework document are published we are fulfilling this commitment through stakeholder consultation locally and nationally on the role of the Court Administration Councils and the new agency.

Your letter requested further clarification, in the absence of a framework document, of two specific aspects of the Courts Bill. Firstly, the number of Court Administration Councils that are envisaged. We are working with our stakeholders on proposals for the geographical structure of the new agency. It must be able to support all of the courts' business- civil, family and criminal. It must also ensure that services are delivered locally and that chief officers are able to contribute fully to inter-agency working in the criminal justice system. The 42 criminal justice areas will be the building blocks for the new structure, though a specific link to them in statute would be restrictive- if other criminal justice agencies were to change their area structure, the courts would not be able to adapt quickly. When these proposals have been examined further, an order specifying the areas will be laid before Parliament.

Secondly, you asked what the procedural requirements for "guidance" given by the Lord Chancellor to Court Administration Councils will be? Court Administration Councils will ensure that local people have a real say in the running of courts in their area. They will make a non-executive contribution to the development of local strategy for delivering high performance and will work in partnership with local chief officers to do this. Any guidance given to Court Administration Councils will be to ensure that this partnership is effective in the administration of local justice and that consistent high standards apply throughout England and Wales. Councils will want and expect guidance on matters such as their quorum, their constitution and procedures. The guidance will also set out the key issues on which their views will be sought, and can contain specific suggestions for activities (such as particular types of meeting, or consultation with particular groups). I agree that the Bill does not specify whether the Lord Chancellor's guidance is "binding" on the councils. I am not sure that this concept is particularly helpful - clearly there is no obligation in tort or contract. The intention is simply to guide and empower the councils to fulfil their new statutory duties. The guidance will certainly be published and publicly available. An agency framework allows the necessary flexibility for innovation to respond to changing local situations and needs, and guidance to the Councils should have the same degree of responsiveness to change.

Your letter also requested clarification of the power under clause 11 to remove lay justices. At present, the grounds for the removal from office of justices are not defined in legislation, and the Bill alters that position. The circumstances in which the Lord Chancellor exercises, and will continue to exercise, his power of removal are described in the published Directions for Advisory Committees on Justices of the Peace. Those Directions also define the procedure by which a justice may be removed (on recommendation to the Lord Chancellor by a committee composed largely of justices). In addition, the decision of the Lord Chancellor to remove a justice (or any other judicial office holder) from office is susceptible to judicial review by the High Court itself. In that sense, therefore, the removal of a justice could not be effected without judicial acquiescence, and could never be effected improperly or arbitrarily.

"Declining or neglecting to take a proper part in the exercise of his functions" makes similar provision to section 7(4) of the current Act, where such failure gives the Lord Chancellor grounds to place a magistrate on the Supplemental List. This provision dates from the Justices of the Peace Act 1949. In the current Act, although the Lord Chancellor's power under Section 5 to remove magistrates by Instrument is not limited to specific grounds, Section 7 does specify grounds on which magistrates may be placed on the Supplemental List, which is, in addition to its more usual function, a means of depriving the magistrate of judicial functions. The Courts Bill is differently drafted in that it sets out the grounds for which magistrates may be removed from office, and does not make use of the Supplemental List as an alternative to dismissing magistrates from office.

Your letter also queried the justification for the Lord Chancellor's power to alter rules made by the three rules committees. The power to alter rules is necessary to ensure that the work of the committees can be progressed with a minimum of delay. As the explanatory notes point out, the power to alter rules is not novel, but existed in relation to county court rules for well over 100 years and was most recently expressed in s75(9) of the County Courts Act 1984. It is important that there should be consistency across all three jurisdictions; hence the proposals to adopt a similar approach for the making of criminal and family rules.

The Bill provides that I (in the case of the Criminal Procedure Rule Committee, with the agreement of the Home Secretary) may not alter rules made by the Rule Committees, without consulting the relevant Committee. Should there prove to be a difficulty with a rule, I would liaise with that Committee to agree the solution. The power to alter rules would prevent the work of the Committee being disrupted, as any amendment could be expeditiously completed. Where there was no power to alter, the entire set of rules would need to be re-made, introducing an entirely unnecessary delay to the process and adding a layer of bureaucracy, which would be unhelpful.

The power to alter would be particularly beneficial in relation to urgent matters, for example as was the case for the Rules relating to the Anti-terrorism, Crime and Security Act, 2001. This would also provide for any instance where the rules as made by one of the committees failed to meet the intention of Parliament when an Act was passed. I anticipate that this will be a rare occurrence, perhaps arising in relation to individual rules, rather than a set of them on a particular matter.

Finally, you express concern about the supposed "centralising tendency" of the Courts Bill. The new agency will not be centralised. It will be responsive to local needs through a network of empowered local managers and accountable through the community-focused Court Administration Councils. These bodies will bring together representatives of the local community and the judiciary, lay and professional, with real influence on the administration of the courts. Where decisions are best made locally they will be. Currently, engagement with the local community is voluntary for both Magistrates' Courts Committees and the Court Service. They are not obliged to involve the wider community in their decisions. With the setting up of the Councils, this will no longer be the case for the new agency. Unification will help break down often confusing and divisive organisational barriers, nationally and locally: barriers that hamper local responsiveness to local needs.

9 January 2003


 
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