Examination of Witnesses (Questions 80-99)
TUESDAY 11 MARCH 2003
PROFESSOR LEE
BRIDGES AND
MRS NICOLA
PADFIELD
80. Mrs Padfield, are you happy with that?
(Mrs Padfield) I think we have to keep separate the
judicial issues and the administrative issues. One of the recommendations
in Auld which I thought was particularly interesting, and has
slipped away at the moment on—page 272—is that all
members of the judiciary, whether lay or professional, should
be brought within the responsibility of the local resident judge,
and the judicial hierarchy of which he is a part. That strengthening
of the local judiciary to include the magistracy could be hugely
useful. I am with Professor Bridges that there needs to be much
greater continuity between magistrates' and crown courts. Centralisation
in itself, may be a good thing but I would repeat, as I said right
at the beginning, that I do not think we can judge whether the
proposals in the Bill will make court users happier people. There
is not enough on the face of the Bill to see what will happen
in practice and whether local courts will function better. Who
knows?
81. You said earlier that your field was not
particularly the civil field but I wonder if either of you feel
that an opportunity has been missed to unify the family courts?
(Mrs Padfield) I would not feel confident to speak
on that subject.
(Professor Bridges) I guess the question is do you
take the family jurisdictions of the magistrates' courts and put
them somewhere else? I personally have my doubts that that is
necessarily a good thing because I think it would become much
less local if you did so, but I am not a great expert in this
area either.
Keith Vaz
82. Can I take you back to the answer, Professor
Bridges, that you gave to Mr Soley, and the issue of listing not
being a judicial function? Is there an example anywhere in the
world, and you have vast experience in these matters, that we
should be looking at which best deals with this issue, because
the issue of listing and delay is, of course, a real problem for
people going before the courts. Is there another country where
they have got it right?
(Professor Bridges) I am not sure there is. In most
countries I know about judges hold on to listing as a judicial
function because they like to be able to control what sort of
cases are appearing before them and what they are doing. I do
not mind in one sense that it is regarded as a judicial function
but, in making the decisions about it, it has to be done in some
sort of co-ordinated way with other issues, both to do with the
court system and with things like legal aid. I once did a study
for the old Legal Aid Board about providing duty services in County
Courts for housing possession cases, and it was fairly economic
to do it as long as you could make sure the County Court heard
all the housing possession cases on one list one day a week but
many County Court judges would not have that. They wanted a mixed
list, and so you would have to provide these duty services every
day in the County Courts rather than one or two days a week, and
those sorts of issues have to be taken into account both by what
I would call the local board of management, which would marry
up the judicial decision-making with these other decisions, and
through the consultative councils which I would hope would have
much broader representations than is laid down in this Bill. They
have to be much broader. If I may make a plea here, both in terms
of the membership of the court administration councils and in
terms of membership of rules committees later on in the Bill,
the Lord Chancellor seems to have forgotten that he is also responsible
for the Legal Services Commission and legal aid. I do not know
why the Legal Services Commission is not represented on all of
those bodies.
83. On the courts administration councils, are
you a fan of the new CACs? The new arrangements for the new courts
administration councils?
(Professor Bridges) If they become a wider consultative
body. At the moment we have court users' committees for Magistrates'
Courts, County Courts, and similar for Crown Courts. The great
advantage of CACs is you need to look at those courts as a whole,
particularly Magistrates' and Crown Courts in terms of criminal
matters, and I think to the extent that they have that remit that
is a step forward. We should be talking about the Court Service
generally within a local area and where things fit within that
structure. If that is their remit and it is that wide then membership
has to be much wider than having two judges, two practitioners
and two representatives of the public.
84. So what is the ideal size?
(Professor Bridges) If they are going to be a consultative
body which is what I would make them, an advisory body, I would
certainly want to have a much wider group of judges on them, a
much wider group of practitioners on them, and have a lay membership
that at least made up a third of the membership. But I can see
these being 25 member bodies because they should be consultative
bodies; the board of management should have to consult with them
on a regular basis about the issues supporting a management scheme.
85. Mrs Padfield, did you agree with the principle
of court administration councils?
(Mrs Padfield) I think it would be difficult to disagree
with having an advisory committee on court users or of court users.
I would want to distance myself a little bit from Professor Bridges
in relation to judicial control over listing. I heard him to be
asking a question which did not necessarily have an answer yet
and it is terribly important that some of these questions be explored
much further before decisions are taken. A truly independent judiciary
needs to be in some sense in control of its courts, and I think
this question of who runs the courts is a hugely important issue
which we have not adequately grappled with yet.
86. Who should run them?
(Mrs Padfield) Obviously the executive—civil
servants if you like—will run them and they should be under,
therefore, a government department accountable to Parliament and
to the judiciary. I think the question which to me is very difficult
is the extent to which the Court Service can be accountable to
the judiciary, but if you think in terms of constitutional theory
and separation of powers it is very important that the independent
judiciary is in some sense responsible. I am not going to go so
far as to say that they should run the Court Service because I
think that is unrealistic in terms of resources. There is a pay-off,
a trade-off, between issues of resources and issues of independence
which to me are very troubling. I am not an expert on comparative
constitutional law but in the little bit of reading that I have
done on the subject it is not clear to me that countries where
judges are more clearly in charge of their courts are better systems
because it very often boils down to questions of resources and
that is where, of course, these efficiency and effectiveness questions
are troubling because the cynic knows they are about saving money.
87. But as far as the magistrates' courts are
concerned and the proposals in this Bill, in principle you think
they are okay but there are features of the old system which we
need to retain and we need to look at membership and issues of
accountability? Apart from that, you are relaxed about them?
(Mrs Padfield) It is difficult to take issue with
them because there is not anything in the proposals to take issue
with.
(Professor Bridges) On the CACs, one thing I think
should be done is to require the Lord Chancellor to consult them
in particular about his decisions under Clause 25 which is to
do with court sittings and where courts can sit and issues of
court closures, because at the moment there is no specific remit
for CACs to consider these matters—
Chairman
88. At the moment, if Mr Vaz were to ask a Parliamentary
Question about the closure of a magistrates' court and the fact
it was not sitting in a particular place the Lord Chancellor would
answer that this is a matter for the Magistrates' Court Committee
which illustrates, of course, that theoretically it is autonomous.
The Magistrates' Court Committee will say, "The Lord Chancellor
is making us to do it and will not give us the resources to keep
the court going" so you have that typical British fudge,
whereas under the Bill's proposals it will presumably not be a
fudge; Mr Vaz can ask the Parliamentary Question and the Lord
Chancellor will have to say, "I have decided after consulting
the CAC to close this court".
(Professor Bridges) Or the Lord Chancellor's spokesman
in the House of Commons will have to answer the question, yes,
but I also think that there is an issue about local consultation
and it is not clear to me at the moment that the CACs would need
to be consulted about a court closure if you look at the way the
general duty is framed, etc, and I think there should be a very
specific reference in the Bill that the Lord Chancellor has to
consult the CACs under section 25.
Keith Vaz
89. But in practice they would be consulted,
of course, would they not?
(Professor Bridges) I do not know because what the
Bill does is allow enormous flexibility about where courts can
sit and when, etc, and I can well imagine not closing a court
but just not sitting in it so often or something like that, so
you are effectively closing a local court in some distant place,
or you could suddenly say, "Well, we are going to sit in
the local CAB", or something like that. That may be good
but there does need to be wide consultation on these issues. I
am concerned, for example, with advising the Legal Services Commission
in various guises about the provision of criminal defence services,
and I have to say that when we have been asked to look at the
provision of criminal defence services in a number of rural areas—and
I am not just talking about mid-Wales where you may have to travel
100 miles on local roads in Wales to get to your magistrates'
court; I am talking about Norfolk and Suffolk and places like
that as well—it is, within the rules that the Legal Services
Commission has laid down for duty solicitor services, very difficult
to run an economic service because of the distances involved.
90. Finally, on the question of involving those
judges and magistrates in court management, do you not think there
is a real possibility of conflict of interest arising over issues
of resources and closures, for example? People know the local
magistrates, do they not, so would that not put them in a very
difficult position?
(Professor Bridges) I do not see that it is going
to put people in a difficult position; no more than a local councillor
is in a difficult position in terms of making decisions.
91. Yes, but do not forget that a local councillor
is elected. They have to go back to the electorate.
(Professor Bridges) We do accept, and I accept, that
there are some areas of management to do with the management of
the judicial resource that for reasons of judicial independence
have to rest with unelected people, the people you have appointed
as judges or as magistrates, but I do not accept that that means,
when you are carrying out those management functions, they cannot
operate in as open and democratic way as they can. That is not
to say that there will be interference with their individual judicial
decisions and cases. I think we can make that separation and we
often do on all sorts of bodies, and if the board of management
is dealing with a matter which does affect an individual it can
go into private sitting to deal with that, as I do when I chair
the School of Law staff meeting. If we have to discuss an individual
member of staff it becomes a closed meeting, and that is perfectly
possible.
92. Do you agree, Mrs Padfield?
(Mrs Padfield) Yes, but what I would want to add is
that Clause 8 of the Bill says, "The Lord Chancellor is to
specify local justice areas and may make orders altering them".
We are talking as though we know what a local justice area is,
but it might be any size. If you look at the history of the Magistrates'
Courts Committees there have been huge changes over the last twelve
years, and the animal which is a Magistrates' Court Committee
is not the same as it was in 1949 when they were invented. So
does "local" mean small or quite big? I think we should
be very worried about these issues, and the lack of clarity.
(Professor Bridges) There is enormous lack of clarity
in the present arrangements, I might add. I have recently been
trying to find out the postal areas covered by petty sessional
division areas and I can tell you, nobody knows. The local police
do not know, the local courts do not know, the Lord Chancellor's
Department does not know—nobody knows.
Chairman
93. There still seems to be a confusion of views
which I cannot resolve. The merit of magistrates' committees as
they used to be, not so much as they have been in the last few
decades but as they used to be, administering courts and making
decisions about where they sit and whether they close or stay
open, is that it is local and is open to local communities. The
de-merit of that is that it ignores the existence of a whole resource
issue and the need to manage courts efficiently rather than as
a whole series of separate units each making their own decision
in that regard to anybody else further up the judiciary chain.
The Bill appears to go in the direction of central management
which is more democratically or locally accountable because at
the end of the day somebody has to answer Parliament politically
for a decision to close the court but some of the magistrates
would feel that they have lost or will be losing local control,
particularly if the distinction between an advisory and management
role is clearly maintained.
(Professor Bridges) I would agree. Where the Bill
is lacking, and I agree with Nicola Padfield on this entirely,
is how it is going to work locally. It is very vague. At the moment
if you look at the CACs it is unclear whether they will have a
management or advisory role, what their role is, how it is going
to be sorted out, what their membership should be, etc, and that
is where I would hope you and your colleagues will really be pressing
the Lord Chancellor to say, "How is this going to work locally?"
Dr Whitehead
94. Changing the subject somewhat, a number
of groups that have taken an interest in this Bill have welcomed
with some reservations the establishment of the new courts fines
officers. Do you share that welcome or do you have concerns?
(Mrs Padfield) I think the question is why you want
these fines officers; what is their function; who are they? Again,
it is not transparent on the face of the Bill. There are, of course,
and we all know it, huge problems with the enforcement of fines.
What do we have to do? What is the key to good fine enforcement?
The first question has to be appropriate fines in the first place.
Unit fines—scrapped ridiculously fast in the early 1990s
for reasons which we all remember. There needs to be structured
support for those paying fines. I have long been a fan of money
payment supervision orders and at the latest figures they are
going down all the time—in 1996 there were 6,400 and in
2000 there were 1,600 money payment supervision orders. Why so
few? Magistrates do not think about them and probation officers
do not want them because they themselves are hard pressed with
more serious community penalties and they do not want to be involved.
But I think we need more structured support for those paying fines
and the other issue is some very fundamental thoughts about the
role of financial penalties in the sentencing framework. Again,
there are interesting links to be made between the Courts Bill
and the Criminal Justice Bill which could be explored further.
There are a number of very important areas where huge fines are
unenforceable where you could argue that fines should not have
been given in the first place. I was very impressed by a Home
Office On-line Report 09/03, Clearing the debts: the enforcement
of financial penalties in Magistrates' Courts and Alan Mackie's
research, which, I commend to the Committee's attention, where
they explore all sorts of issues in relation to non payment of
insurance or non payment of TV licences, for example: "A
number of magistrates also suggested that the best way forward
in this context would be to make it a mandatory requirement to
display certificates of insurance in car windscreens so that such
offences could be more quickly detected and to create a stronger
deterrent effect". On TV licences: "The better way,
many suggested, from the point of view of minimising risk of evasion
and the costs of enforcement, would be to tax usage (for example
through `pay to view' TV or through duty on petroleum spirit...",
in relation to cars. There are other issues in relation to fine
enforcement and my feeling about what is in the Bill is that it
is a red herring to the real issues.
95. So are you essentially saying as far as
fines officers are concerned that you would view them as individuals
who, as it were, would "mop up" after rather inappropriate
or not entirely effective levying of fines in the first place,
rather than an innovation which will take the matter forward?
(Mrs Padfield) The implication of your question is
there are not people "mopping up" at the moment, and
there are, of course people mopping up at the moment. Will the
same people be mopping up in the future or will they be different?
Again, on the face of the Bill, the message is quite clear. The
Lord Chancellor needs more powers in relation to fine officers
but it is not really very clear what powers he is going to give
them and why, and there are some bigger issues than just who is
a fine officer and what does he or she look like.
96. Do you think there is an issue between the
levying of a fine and the collection of a fine in the power of
the fines officer to increase or vary the fine, and do you think
that is perhaps an area of concern in terms of what might appear
to be a second bite of the cherry in the fine process?
(Mrs Padfield) Of course it is one of the issues.
It is another of the issues close to the issue we were discussing
earlier in relation to what is a judicial role and what is an
administrative role so of course there are issues there to be
thought about, but I do not see there is any problem with giving
the fine enforcement officer some powers subject to the supervision
of the court.
(Professor Bridges) There is a right of appeal. There
is no right of appeal, for example, against pre trial hearing
decisions.
97. Do you think the increased fine idea is
likely to prove anything of a deterrent?
(Mrs Padfield) It depends who has been fined. To talk
in generalisations in these terms is very dangerous. I am about
to do what I criticised the Bill for doing—generalising—but
I think you do have to look a lot more deeply into the issue of
who is being fined and who is not paying their fine and why they
are not paying it. There are no easy answers and nobody should
romantically believe that creating a fine officer will remove
the problems of fine enforcement.
Mr Soley
98. I am puzzled. You are saying there is not
enough clarity. The whole of section 2 relates to the powers of
fines officers. You refer to the money payment supervision orders
and really all anybody could do there was go back to the court
and say, "Look, I think you have hit this person excessively
hard and they cannot really pay", or they have lost their
job or whatever. Here you have much more flexibility for the fines
officer. I suppose my only concern is that the question may be
how well qualified and trained they are, but the fact is the powers
are more varied, more flexible and better spelt out than ever
under the old MPSO. Is that not right?
(Mrs Padfield) No, because with a money payment supervision
order the only option available to a probation officer is most
certainly not to go back to the court and say, "My client
cannot pay" but to sit down and help the client work out
how they are going to pay. There are great issues whether the
CAB and all sorts of other people can be involved in that way.
Again, I think the interesting issue is who the fine officer will
be, and what sort of person.
99. But the fines officer can sit down and work
it out with the person too but they have the power at least to
vary it themselves instead of saying, "Well, I will go back
to the court and ask for it to be varied". That is better,
is it not?
(Mrs Padfield) I have no problem with that, no.
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