APPENDIX 6
Supplementary memorandum submitted by
the Justices' Clerks' Society
In considering the elements that are not covered
in the Courts Bill I have to start by saying that this is a broad
question and I could include all aspirations and suggestions made
by the Justices' Clerks' Society over the years and fill a small
library. It is, therefore, taken as read that what follows are
the areas felt most pertinent at this time to the narrow field
covered by the Bill.
INDEPENDENCE
1. The failure to enact Section 42 of the
Justice of the Peace Act, 1997, which required consultation with
the Bench on the appointment and removal of the Justices' Clerk,
is a major omission. Section 48, which is re-enacted in the Bill
at Clause 24, is merely words and intent when not joined with
Section 42. It introduces checks and balances on the power of
the Lord Chancellor and/or the new agency. It does not, ultimately,
prevent movement but requires it to be for an identifiable and
good reason, rather than a whim.
Whilst it is stated constantly that consultation
will take place and nobody will be moved on a whim, I feel that
this should be contained in the Statute. If it does not clash
with the wishes of the Department, as stated, then I cannot see
how it will restrict their flexibility because it will be in accord
with their intention.
Failure to address the issue allows the
possibility of undue pressure being placed on a Justices' Clerk
to give advice that accords with Government policy rather than
as an honest interpretation of the law. The statement that it
will enable Justices' Clerks to be able to work at Headquarters
sounds as much like a sanction as an opportunity.
2. Independence could also be enhanced by
recognising the judicial activities of the Justices' Clerk, by
requiring that an oath be taken. This could either be the Judicial
Oath or a new creature in the form of a Judicial Officers' Oath.
This would be a public declaration and a recognition by the Department
that these are untouchable areas and so strengthen Clause 24.
This would also address the concern that advice given by a Justices'
Clerk, who is a civil servant, may not be perceived, by the public,
as being truly independent.
FINES OFFICERS
Lines of reporting and accountability are not
included in the Statute and the ability to change the decision
of the court without a change in circumstances increases the concern.
Most of the powers and functions are welcomed
but the Act, as in most areas, is very sparse on detail.
COURTS ADMINISTRATIVE
COUNCILS (CAC'S)
The focus of these groups needs to be defined
and the Society would argue that it should be a purely consultative
body with local people to ensure accountability. As such an official
should be present but not judiciary. There should be a formal
forum in the Crown Court and Magistrates' Court for consultation
within the judiciary. In the latter case this should be a meeting
of the Bench Chairmen and Chairs of Bench Training and Development
Committees, facilitated by the Justices' Clerk.
The dangers of the CAC's are included in documentation
lodged earlier with the Committee.
JUSTICES' CLERKS
AND ASSISTANT
CLERKS
The legislation is broad, but does acknowledge
that these "creatures" are different to the other employees
in the Court Service. However, the line management and how this
group fits into the agency is not identified within the Bill.
Before being sure that the new arrangements are workable, this
matter needs to be clarified. Clearly nothing like the Justices'
Clerk exists in the Crown and County Court.
POWER OF
THE JUSTICES'
CLERK
The Bill does not extend the power of the Justices'
Clerk. Clearly the Society would see efficiencies that could be
achieved by additional powers, such as granting conditional bail
in a contested hearing, which is only analogous to the power currently
given to a Custody Sergeant. However, the Society is not pressing
hard for additional powers within the Bill, but would not want
it to be forgotten in the future.
CONSISTENCY
To assist with greater consistency in the future
the Society has offered to have the National Legal Forum become
the guidance body for Justices' Clerks and legal advisers in England
and Wales.
CONCLUSION
The Bill is extremely general and the devil
will be in the detail. Parliament will need more "flesh on
the bone" to fully understand what it is being asked to approve.
March 2003
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