Examination of Witnesses (Questions 40-59)
15 JULY 2003
SIR HAYDEN
PHILLIPS, IAN
MAGEE, SIMON
BALL, JONATHAN
SPENCER AND
JOHN LYON
Q40 Chairman: I have seen it.
Sir Hayden Phillips: I think you
will see that its potential for time-saving for police officers,
victims, witnesses is very powerful indeed and I think that is
going very well.
Q41 Mr Cunningham: Moving on to the
magistrates' courts, there have been about 98 closures since 1998.
What is the driving force behind this?
Mr Magee: Well, magistrates' courts
and their operation, as you know, are matters for the individual
magistrates' courts committees at the moment, 42 of them, and
that situation will change in less than two years' time probably
when the current Courts Bill is through and when the new unified
service is introduced. The driver for changes in the magistrates'
courts world, as I understand it, is the effective provision of
service. They have issues about accessibility that they have to
deal with and they have issues about provision of better facilities
and better services. Some of the premises do not lend themselves
very readily to the second of those two points and hitherto the
magistrates' courts committees have had to make a judgement—you
asked what was the driver for the closures—as to how they
can best discharge those services in the courts for which they
are responsible. There is, it may be worth adding, an appeal mechanism,
as you will know, to the Department and that appeal mechanism
is exercised effectively, I believe, in eight cases which have
come before the Department over recent months and four appeals
by elements of the local community against the closure of particular
courts have been upheld by the Department.
Q42 Mr Cunningham: What influence
can your Department have in relation to court closures? Do you
advise? Do you set targets? What advice do you actually give them?
Mr Magee: Not in that particular
respect. As I said, the magistrates' court committee is responsible
for running the service and running its budget and for providing
effective access to justice locally. However, with the movement
towards the unified service, we are already working very closely
with the magistrates' courts community, I think, to the advantage
of both services. For example, several county courts which might
otherwise have had to close for economic or other reasons in recent
months have been able to maintain a presence in the area by sharing
accommodation with the magistrates' court in that area. Just coming
back to an IT point that was made beforehand, that gives several
advantages in that there is at least now an infrastructure in
those magistrates' courts which is capable of common usage, so
I think we are moving forward by looking at the estate as a whole
rather than the separation into magistrates' courts and other
courts.
Q43 Mr Cunningham: One of the things,
you see, which certainly concerns us is that it looks as though
some of these closures, with five closures in Suffolk, but next
door there have only been two in Norfolk, then you have got eight
in Devon and one in Dorset, it seems very, very patchy to us.
Mr Magee: Well, I think there
have been many views expressed as the Bill has gone through Parliament
about the merits and demerits of the final administration. One
of the merits that we will get in terms of provision of access
to justice is that we will be looking at a national service and
any patchiness, and I cannot really comment on the particular
examples that you give, but any patchiness of service, which there
may be in any area of the country, is capable of being eradicated
because it will be tied to a business plan for the provision of
justice services across the country as a whole.
Q44 Mr Cunningham: What is going
to happen in the interim period pending consideration and the
enactment of the Courts Bill?
Mr Magee: What is happening already
is that we are working very closely with the magistrates' courts
community and there are two objectives in mind there. The first
is to ensure that business continues as usual. Right at the beginning
the Chairman spoke of the need to ensure that the criminal justice
system working was carried forward effectively while the changes
that have happened recently occurred. That applies too as far
as the introduction of the unified service is concerned. The people
who are responsible for accommodation currently in the court service
are working very closely with magistrates' courts' counterparts
to try to ensure that we prepare for a situation that is likely
to arise in 21 months' time.
Q45 Mr Cunningham: Have you considered
a moratorium until the new arrangements are actually in place?
Mr Magee: I do not think in any
world we can freeze the world absolutely as we move forward. What
we would certainly consider and what it would be very surprising
if magistrates' courts committees did in the interim was not to
take account of the overall provision of services in the area
for which they are responsible.
Q46 Mr Cunningham: Sometimes when
you bring about changes you sometimes may want to pause and think
about the changes you are going to implement. I am not talking
about the freezing the world over.
Mr Magee: I understand the point
that is being made. I think it is very important to proceed cautiously
in the interim period, I would not go as far as to say moratorium,
but to proceed cautiously.
Q47 Mrs Cryer: Mrs Rachel Lipscomb
who is the Chairman of the Magistrates' Association said in an
article in the Times in May that the number of magistrates
there should be at the moment is 30,000, apparently, but according
to your figures we only have 24,419 in post and 1,489 vacancies.
Is Rachel Lipscomb right or is she over-egging the pudding and
we really do not need 30,000 Magistrates?
Mr Lyon: I will deal with that,
if I may. I certainly would not accuse Rachel Lipscomb of over-egging
the pudding. I do understand that the Magistrates' Association
have a real concern to ensure there is a proper number of magistrates
appointed in each of the areas. The position has improved considerably
over the last year, in 2001-02 there was a shortfall against what
they asked for of some 25% and I can well understand the magistrates'
concern about that. This year out of the 1,489 that were sought,
that is 2002-03, we recruited 1,410 magistrates, which leaves
a shortfall of just over 5%. It was very close to the target that
we had set for providing more magistrates. We have done better
over the last year but we recognise that we need to keep on the
case, which is why we are looking at a national recruitment strategy
to ensure that we can both continue that performance and frankly
do a lot better in the diversity of the bench as well.
Q48 Mrs Cryer: What sort of lines
will you follow? It is in the autumn you are going to start this
strategy of recruitment, what are your thoughts on it? What are
you going to do?
Mr Lyon: There are four broad
aspects to it, first of all we are engaging the advisory committees,
because we recognise this is not a central process, it is very
much ensuring that the local community is providing magistrates
from its local community, so the role of the advisory committees
is central to that. We need to engage them. We have had conferences
with them, not us telling them how to do it better but identifying
advisory committees who are doing it well and sharing best practice.
The second thing is, as well as encouraging them we are supporting
them specifically, and we are doing that particularly with advertising
which is regionally focused, targeted advertising, particularly
in the areas where there is a shortfall or where there is a particular
imbalance in the bench. That is the second aspect of it. The third
aspect of it is encouraging applicants to come forward. I suppose
the work that we have been doing there in particular with the
shadowing scheme with people of black and minority ethnic backgrounds
is a very important part of encouraging applicants. So far that
is showing dividends and people that go through that scheme are
applying to become magistrates. The fourth aspect of that is encouraging
employers, particularly local employers, to see this as a really
valuable public service, both in the interests of the community
but also in their own interests in developing their own staff.
We have a range of ideas there. We work with the Magistrates'
Association, who you referred to earlier, in producing a leaflet
which will explain the case and the proposition to employers.
We are looking at whether we can spend some money on when employers
do well, giving them and ensuring they get some favourable local
publicity for the work they have done. Another idea we are working
on is can we give some sort of recognition, something like a plaque,
to those employers who have done particularly well for their communities.
Those are the four aspects of the strategy.
Sir Hayden Phillips: On the numbers,
I have been reminded there may be a technical point, I do not
know whether Rachel Lipscomb was including the Duchy of Lancaster
in her figures or not, there are about 4,000 magistrates appointed
there, that would make a substantial difference to the figures.
I will check that and let you know. [1]
Q49 Mrs Cryer: Are the shortfalls
occurring persistently in certain areas or is it fairly widespread?
Is it just virtually every area which has a few short or are there
certain areas you could identify as being hot spots for under
representation of magistrates?
Mr Lyon: I think we gave you some
information on that. We have looked at something like 19 advisory
committee areas that have shortfalls. In Berkshire, for example,
we appointed 33 out of 34, so the vacancy is one, which is not
very great. In Middlesex there is a shortfall of 22, they wanted
80 and we appointed 58. That is a much larger proportion. In Walmley
there were ten vacancies and only five were appointed. I think
the presumption that we have is there are likely to be greater
problems in urban areas. When you look at those tables that I
have just been drawing from I do not think it is fair to say it
is only an issue in urban areas. Principally throughout the country
the numbers, as I have given from the earlier figures, this does
exclude the Duchy of Lancaster, are not that great at the moment.
Q50 Mrs Cryer: It has been suggested
that the introduction of a Criminal Justice Bill may mean that
we could do with 3,000 more magistrates, I am just wondering if
we are going to be able to achieve this? I will tell what you
has occurred to me, there is a certain pool of people, retired
people or people who can take time off work easily, who seem to
be being used by an ever-increasing group of organisations, quangos,
and that group may well be recruited to health trusts and to tribunals.
So far as tribunals are concerned I understand that the only tribunal
that does not pay an attendance allowance is the Social Security
one.
All of the other organisations who are fishing
from the same pool are all giving some sort of financial reward
to those who are being recruited. I am just wondering if we may
not reach a point where the magistrates—I know with lay
magistrates the tradition has been that they do not get any money
except reimbursement for loss of earnings or expenses—should
be paid a small amount per session, perhaps £10 or something.
Have you thought of that?
Mr Lyon: I have heard it suggested.
I am not looking at it at the moment. I have heard that being
discussed. I know there is a variety of views among magistrates
about whether that is a good idea or not. The voluntary principle
is enormously powerful among lay magistrates. I agree with you
that we will need to look at and not rule out a range of options
because I think the challenge that we have discussed for recruiting
magistrates is going to become, as you mentioned, much greater
in the years ahead.
Mrs Cryer: Thank you.
Q51 Keith Vaz: Sir Hayden, when you
came before the Committee on 22 April with the Lord Chancellor,
he said, and presumably you agreed because you were sitting next
to him and you did not say anything, the system for appointing
judges then was perfectly in order and by 13 June it had changed.
Is your position still the same as it was on 22 April or do now
accept Government policy on this?
Sir Hayden Phillips: That is a
very good question, I have never had it put to me that way before.
I draw a distinction, as the Secretary of State
did yesterday, between the quality of the appointments that have
been and are being made, about which no one is raising criticism,
and the issue of principle as to whether the way in which it is
done should be changed. It is the second of those the Government
have announced a change on, it is not criticising the first.
Q52 Keith Vaz: In today's Times
there is a job advert, have you seen it? It not yours! It is the
appointment of a high court judge. If you look at eligibility
and criteria it sets out clearly what a person applying to be
a high court judge at the moment should have as far as eligibility
and criteria is concerned. When we have the new Judicial Appointments
Commission is that criteria going to change?
Sir Hayden Phillips: I think the
central criteria are likely to remain the same. I think I am right
in saying that the Secretary of State said yesterday that he thought
that the criteria that were set for the qualities required are
essentially matters for Government and Government policy and should
continue to run in that area.
Q53 Keith Vaz: The criteria is going
to remain the same. The eligibility is going to remain the same,
"a circuit judge of two years standing" as it says in
there. What is going to change is that different people are going
to select the judges and therefore we hope there is going to be
a different result, a better result, a more diverse judiciary.
Is that what we are after?
Sir Hayden Phillips: There are
two points here. The first is that the Government's view is that
you have to appoint where it is very important for public confidence,
that is the perception of confidence, that you introduce a very
powerful, independent element, not just leave it to ministers.
That is point one. The second point is, if you have an appointments
commission of that sort it is possible, particularly if you make
a very determined effort, to try to increase the catchment area
of candidates but, as we have also made it clear, we do not think
that in itself will be enough, therefore that is why we are going
to look at different career paths.
Q54 Keith Vaz: I will come on to
that in one moment. On the question of the appointments now, somebody
applying for that job will not feel as legitimate as somebody
who applies when the Judicial Appointments Commission gets going
because this is still going to be done by one man, Lord Falconer,
the Lord Chancellor. Is that right?
Sir Hayden Phillips: There is,
as you know, a process of consultation and analysis, it is not
just one person sitting alone in a tent, as it were.
Q55 Keith Vaz: I understand that.
Sir Hayden Phillips: I do not
believe that any of the people appointed between now and the coming
into force of the Commission will feel any less legitimate than
those who have been appointed up to now.
Keith Vaz: What I cannot understand is
if we accept that the present system has to be improved between
now and the establishment of the Judicial Appointments Commission
why has the Lord Chancellor not put in place interim arrangements,
transitional arrangements that will pass the decision-making process
to a wider group of people than the group that is not acceptable
at the moment, because it is only one person, despite the process
that you talked about.
Chairman: That is in essence what was
done in Scotland because the Justice Minister decided to take
advice from a group he set up on a long statutory basis in the
interim for bringing forward statute.
Q56 Keith Vaz: Clearly that would
be a much better system.
Sir Hayden Phillips: We are dealing
with quite large numbers here. We are looking at a position in
which we do not believe it should take that long, we hope, to
be able to have a judicial Appointments Commission up and running.
I would not for a moment rule out thinking of some interim support
mechanism, if you like. We have not thought that was necessary
up to now on the grounds—
Q57 Keith Vaz: When you say "we"
this is the Lord Chancellor, or is it advice from the Department?
Sir Hayden Phillips: When I say
"we" I am talking about the Lord Chancellor, the Secretary
of State and the advice we have given him. We have not thought
up to now that we needed that interim transitional phase, but
it is certainly something that in the course of the consultation
process will be put to us and he will obviously consider that.
Q58 Keith Vaz: Many people would
be with you on this idea of diversity. The Lord Chancellor's statement
on the last occasion was there is no women sitting in the final
court of the land. Lord Falconer can do something about it, can
he not, he can appoint while he is Lord Chancellor in the interim
period a women to the House of Lords, he can appoint a black or
Asian person on to the bench, this is something that he can do
in the next 18 month, is this not right?
Sir Hayden Phillips: He answered
that question yesterday and he said he could and he would do it
on merits, if a candidate came forward on merits he would be very
pleased able to be able to appoint people in those categories.
Q59 Keith Vaz: Therefore the person
appointed to those positions would feel perfectly legitimate.
Therefore there is no need to change the system. If the criteria
is going to remain the same and the same officials are going to
be involved in making the recommendations what is the point in
changing it?
Sir Hayden Phillips: No, they
are not. The people who would be involved under the Judicial Appointments
Commission will be a different group of people.
1 Note by witness: The Department's figure of
24,419 magistrates in post as at 1 April 2003 did not include
magistrates in the Duchy of Lancaster. There are currently 3,953
lay magistrates in the Duchy of Lancaster and therefore there
are 28,372 magistrates in post altogether Back
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