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Lord Goodhart: We are entirely happy to support Amendment No. 50C. As the noble Baroness, Lady Anelay, said, Amendment No. 50A is rather strong. The question of the kind of agreement required and possible difficulties in securing agreement would make it difficult to justify insisting on agreement by local justices. Nevertheless, it is obviously correct that they be consulted. I expect the Minister to respond that in practice they will be consulted. If so, it is, in principle, desirable that that be an obligation in the Bill.
Lord Borrie: I have a mild objection to Amendment No. 51. As the noble Lord, Lord Dixon-Smith, is not here, I shall be very mild indeed, because the amendment was spoken to on his behalf. It is unreasonable that a justices' clerk should have a veto
Baroness Scotland of Asthal: I understand the import of why the noble Baroness, Lady Anelay, moved the amendment. However, she put her finger on the inherent difficulty that would arise in consulting every magistrate. Mergers of the petty sessions areas are being conducted now by the Central Council of Magistrates' Courts Committees. That could mean that when the Bill is law, local areas become significantly larger. The noble Baroness highlighted some real difficulties; for example, what happens if one magistrate, on a frolic of his or her own, decides not to agree? I am pleased that the noble Baroness sees the flaw in her argument.
The phrasing of the amendments will require that the Lord Chancellor obtains agreement. Amendment No. 50C requires the Lord Chancellor to consult magistrates assigned to a local justice area before assigning a clerk to that area. As a number of noble Lords have previously said, that would present some difficulty.
Clause 10(2) allows magistrates to be assigned to more than one local justice area. Amendments Nos. 50A and 50C propose gaining the agreement of or consulting a significant number of magistrates before a clerk could be appointed or assigned to an area. During the debate on Clause 8 my noble friend Lord Bassam gave noble Lords an assurance that in practice magistrates will continue to be consulted about the assignment or replacement of a justices' clerk for their area.
The Government made that clear in their statement on unified administration placed in the Library on 16th January. It mirrors the position in the current court service in which there is close consultation with the judiciary on certain staffing issues. I expect such consultation to take place with the Bench chairmen as representatives of the magistrates for a local justice area, rather than with each individual magistrate for that area.
During the debate on Clause 8, the noble Lord, Lord Waddington, pointed out that our statement that consultation with local magistrates on the assignment of justices' clerks would continue, appeared to be at odds with paragraph (75) of the Explanatory Notes.
My noble friend Lord Bassam said that he would be happy to withdraw that point, given the confusion. My response is that we have listened to the persuasive arguments put forward both by noble Lords, the Justices' Clerks Society and the Magistrates' Association, in support of retaining the close link between Benches of justices and their clerks. While we remain opposed to placing consultation with the local magistracy on a statutory footing, we are happy to give assurances that such consultation will take place administratively. We shall take steps to clarify that point in the Explanatory Notes.
I turn to a point made by the noble Lord, Lord Thomas of Gresford. He asked whether justices' clerks would be judicial officers who will, at all times, maintain quasi-judicial independence. My noble friend Lord Bassam reassured the noble Lord that clerks will retain their statutory independence. Clerks are not currently judicial officersnothing in the Bill alters that. I appreciate concerns about the possibility of frequent changes of justices' clerks around the country. However, I am sure that there will be no great loss of continuity.
Amendment No. 51, tabled in the name of the noble Lord, Lord Dixon-Smith, and spoken to today by the noble Baroness, Lady Anelay, would require the Lord Chancellor to obtain the agreement of a justices' clerk before designating a member of staff of the new courts agency as an assistant to that clerk. Imposing a statutory requirement on the Lord Chancellor to obtain the consent of a justices' clerk before designating a member of staff to be an assistant to that clerk would be unnecessary. No such requirement exists in relation to magistrates' courts committees, who currently appoint assistants. However, justices' clerks, as local heads of legal services, are currently involved in the appointments process. We envisage that this will continue to be the practice.
I understand the anxiety that many noble Lords have expressed to have absolutely every minute detail placed on the face of the statute. I hope that noble Lords consider that over-prescriptive and cumbersome. Much in the system works well through good sense and justices' committees with justices' clerks and others working administratively on their behalf; namely, working together in partnership in order that the courts work well. Our amendments are predicated on good sense and good working relations continuing. Therefore, I hope that the noble Baroness, Lady Anelay, will withdraw these amendments.
However, I am a little disappointed at the approach taken, particularly in respect of justices' clerks, by virtue of the last amendmentnot least because I have made clear that the Government are listening, will consult and will continue to look at this matter. Notwithstanding the decision of the Committee in respect of the last issue, I repeat that my openness will continue.
Baroness Anelay of St Johns: I am grateful for the Minister's response. We do not question her openness at all. The difficulty is that we have just one opportunity to obtain clarity on the face of the Bill, which, at the moment, there is not. It is no reflection on any comments made by the Minister that we press these amendments. As Members of the Opposition, it is right for us to respond to views put from outside the Committee and to take the opportunity that discussing the Bill gives to press such matters.
I am grateful to the noble Lord, Lord Goodhart, for his support of Amendment No. 50C. I note the objection raised by the noble Lord, Lord Borrie, to Amendment No. 51. I accept his point and that of the
The Minister said that in practice magistrates will continue to be consulted. If that were placed on the face of the Bill, it would reflect what is currently in statute. Therefore, it is not a case of adding minute detail.
I refer briefly to an e-mail that I received from Mr Sid Brighton of the Justices' Clerks Society on 31st January. He points out that if the current statute is to be reflected, the views of all justices assigned to the local justice area should be sought. Their objection to the consultation to which the Minister refersthe consultation that the Government intend with the Bench chairmen or deputy chairmenwould be too restrictive because there would be a question as to where the mandate was obtained.
I accept that the Minister is listening. However, I take the opportunity provided to register my discontent with the lack of clarity on the face of the Bill. I therefore want to test the opinion of the House. I beg to move.
Baroness Anelay of St Johns: I apologise. I was so keen to press the right amendment that I managed to move the wrong amendment. I should make it clear to the Committeebut first to myselfthat I accept that Amendment No. 50A is not a good amendment and should not be pressed. I apologise to the Deputy Chairman of Committees. I give notice that I shall press Amendment No. 50C. Before I bring the House down around me, I beg leave to withdraw Amendment No. 50A.
"(1B) The Lord Chancellor shall consult the magistrates of the local justice area or areas to which he intends to assign a justices' clerk before he makes an assignment under the provisions of subsection (1A)."M
Resolved in the negative, and amendment disagreed to accordingly.