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Baroness Carnegy of Lour: I have not spoken on the Bill before, and perhaps noble Lords may think that I should not do so now. My experience of lay justices working with professional clerks was in Scotland when I was an honorary sheriff, but I think the experience is not dissimilar.
I hope that the noble Baroness appreciates how important lay justices and their relationships with their clerks are to bridge-building between local communities and the law. Local people are very interested in what happens in a magistrates' court and pay great attention to how local justice is administered. If they get the impression that the clerk who is so important to the operation of the magistrates' court has come from on high, possibly from far away, and is likely to be removed to another stratosphere at any moment, it will shake confidence in the magistrates' court as a local operator of the law. In the world in which I operated, the local roots of the clerk were every bit as important as the local roots of the lay magistrates. I hope that the noble Baroness will remember that.
Lord Jones: I accept the general thrust of the amendments. Is it the case that justices of the peace will no longer be consulted on the appointment or removal of justices' clerks? If so, are we to assume that the special relationship between a justices' clerk and the Bench is being downgraded at the very least? It is arguable that if justices' clerks become civil servants they will be subject to the direction of central government. That points towards the curtailment of the independence that courts will want to see maintained.
Viscount Tenby: I want to re-emphasise what has already been said far better and in far greater detail than I shall be able to do. The subtle relationship between the justices' clerks and the Bench is of immense importance. Each must have confidence in the other, so I urge the Minister to listen carefully to what is being said.
Lord Waddington: It may come as a surprise to some, but it is not all that many years ago when justices' clerks did not have to be qualified. Although they had no legal qualifications, some of them were extremely good and made up for their lack of qualifications and detailed legal knowledge by having a good relationship with their justices, which worked
Lord Mayhew of Twysden: I have no interest to declare and I am left feeling rather naked in such debates, but I should like the Minister to reflect on the kind and extremely well-deserved encomia that she has paid to the justices' clerks and then to ask herself whether it is not significant that the magistrates themselves and the Justices' Clerks Society support the thrust of the amendment? If the magistrates who perform what we all agree to be such an important function in our judicial system want a security of tenure, as referred to by my noble friend Lady Anelay, that should weigh very heavily with the Government.
There is a very good reason for that opinion. We all agree on the importance of the link with the locality of those who administer justice. It is important for local confidence that that link should be maintained for the magistracy. As my noble friend Lady Carnegy and the noble Lord, Lord Jones, said, it is just as important that the advice coming to the magistrates should be informed by local considerations.
The Minister will doubtless say that a guarantee of independence is written into the clause. One is always glad to read something like that, but in practice it is unenforceable in the circumstances relevant to our discussion. For example, if a magistrates' clerk takes a locally justifiable view about a particular topiclength of time on bail, or whateverthat may conflict with the policy of the Lord Chancellor's Department, he can be removed by the department and posted elsewhere, where he will be less of a nuisance, without any recourse whatsoever. It would be in vain for him to say, "My independence has been infringed".
Lord Graham of Edmonton: I am untutored, compared with other speakers, on the practice. I mentioned previously that my wife was a magistrate at Haringey and at Highgate. During those 30 years, I had the opportunity to meet many of the clerks and their staff. The situation is not dissimilar in many other walks of life. Earlier, I referred to the fact that my great experience outside this House was in the co-operative movement. A man may take a senior position and everyone knows that he will not stay there much longer because he has quality. Everyone knows that, whether or not they want to keep him, other people will be knocking at the door. I am not talking about poaching
Recognising that fact, my noble friend and her colleagues have the difficult and delicate job of trying to satisfy the need for continuity in an area. Many noble Lords, like me, were Members of Parliament. We knew well our patch and the value of the people with whom we workedand they knew that we knew that. That is a great thing, but when it comes to understanding the community served by the court, although there may be distress when someone who is eminently loved and respected moves on, one knows how quickly, given the right choice of appointment, someone else can immediately begin to make an impression.
I have no advice for my noble friend or her colleagues, who must deal with the matter, except to say that the trick is to satisfy everyone that the way that the law has been rolled out is, as far as possible, equitable and to the community's satisfaction. I take kindly what was said from the Opposition Front Bench about the power of the advocacy that they have received from outside. I hope that my noble friend will be able to respond to it. Consultations take place with various bodies and I cannot believe that my noble friend and her colleagues would, in the face of strong advice all round, persist in doing something that would patently be resented by those on whose behalf it was promulgated.
Lord Clinton-Davis: I was an advocate in the local courts for a long time. During that period, the role of the justices' clerk was all-important. There was a rapport between the advocates and the justices' clerks, both formally and informally when the court was not sitting. It is important that that should continue. I grew a little alarmed at what the noble Lord, Lord Waddington, had to say. Frankly, I do not think that he is right.
As far as I can see, there is no requirement envisaged for a justices' clerk to be qualified. He or she can be qualified, but it is not imperative. Clause 22(2) sets out the qualifications that must be applied. Although being recognised as a lawyera barrister or a solicitoris important, it is not the sole criterion. Having said that, I support the purpose of the amendment.
Baroness Scotland of Asthal: Perhaps I may first reassure the noble Baroness, Lady Carnegy, the noble Viscount, Lord Tenby, the noble and learned Lord, Lord Mayhew, and others who spoke about the importance of the relationship between the magistrates and the magistrates' court clerks. I absolutely accept and endorse that it is crucial that that relationship be built on trust and confidence. Magistrates' court clerks may be in place not just for months but, as many Members of the Committee who have practised in the courts will know, many years. Sometimes because of other moves in their personal lives or career development, their tenure is shorter. We absolutely understand the nature of that relationship and its importance.
Let me assure the Committee that we fully expect that justices' clerks will continue to be assigned to local areas. However, as my noble friend Lord Bassam said in our debate on Clause 8, in future that will happen outside the statute, which will allow for more flexibility in their deployment. It will also allow justices' clerks the opportunity to work in the headquarters of the new agency or the Lord Chancellor's Department more generally, if appropriate.
I stress again that there is no intention that the Lord Chancellor should move justices' clerks from one area to another at will. With his usual acuity, my noble friend Lord Graham put his finger on a problem that sometimes occurs: there are talented justices' clerks who for their own career development want to move on. I am therefore grateful for what the noble Baroness said about Amendment No. 55, which would be unrealistically restrictive. As she knows, there is no such time limit at present to the appointment of justices' clerks to petty sessions. Sometimes there are perfectly good reasons for them not to continue.
However, there are difficult issues to consider. Although there will be no statutory link between justices' clerks and local justice areas, we fully envisage that clerks will continue to serve those local areas. I can reassure the noble Lord, Lord Jones, that we will continue to consult magistrates before a justices' clerk is appointed or removed. Magistrates, via their Bench chairmen, will continue to be consulted about the assignment or replacement of a justices' clerk to their area, although, as I said, that will happen outside the statute.
As regards deployment, we have made no decisions yet, but we will discuss how it will work with the Justices' Clerks Society. I can certainly assure Members of the Committee that justices' clerks will not be moved without their being consulted. As a matter of routine deployment, justices' clerks, in normal circumstances, will be deployed locally, but transfer under the usual Civil Service terms to another area for agreed personal and/or personal needs cannot be ruled out. We intend to deal with this issue sensitively and flexibly, taking into account local needs.
One of the benefits we hope to gain from a unified system is a greater opportunity to deploy the right people at the right moment. Members of the Committee will know that sometimes there are difficulties which can be met by deploying people elsewhere, with the agreement of various persons, to meet those needs. We believe that that will be a very helpful addition to flexibility and in making sure that the system works more easily than it does at the moment. I invite the noble Baroness to withdraw her amendment.
As regards other matters, we are keeping these issues under review because we have to see how the jigsaw fits together. I certainly understand the concerns that have been expressed. Members of the Committee will know that the Justices of the Peace Act 1949 and the compensation regulations of 1978, the "Crombie"
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