Reply from the Lord Chancellor, the Lord
Irvine of Lairg |
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
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
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