Joint Committee On Human Rights Fourth Report

7. Letter from the Rt Hon The Lord Irvine of Lairg, the Lord Chancellor,

to the Chairman


Thank you for your letter of 17 December about the Courts Bill.

Explanatory Notes

As you say in your letter the Explanatory Notes to the Courts Bill make it clear that in my view the Courts Bill is compatible with the Convention rights. I take your point, however, that the Notes could contain further commentary. I will, therefore, ensure that a revised set of Explanatory Notes, including a brief explanation of any Convention rights that are engaged, is published as soon as possible after Committee, and a copy of the revised text will be sent to you shortly. The Government's view is that certain provisions of the Bill do engage Convention rights, but that in all cases any interference is lawful, necessary and proportionate, so that the provisions are compatible with the Convention.

Dismissing Justices of the Peace (JPs)

You express concern about the power in Clause 11(6) to remove a JP.

The Convention case law establishes that the appointment and, potentially, the removal of judges by the executive need not be inherently incompatible with the independence required of them by Article 6, provided—crucially—that there exist appropriate objective safeguards against improper interference. That proposition has been endorsed in the Scottish and English courts in judgments delivered since Convention rights achieved full domestic effect, notably in the cases of Starrs and Chalmers (in the Scottish High Court of Justiciary) and R v Boyd and Others (in the House of Lords). The appointments of all other judicial office holders in the United Kingdom conform to that model.

At present, the grounds for the removal from office of justices are not defined in legislation. As the Committee note, the Bill now sets out what the grounds are. The circumstances in which the Lord Chancellor exercises, and will continue to exercise, his power of removal are described in the published Directions for Advisory Committees on Justices of the Peace. Those Directions also define the procedure by which a justice may be removed (on recommendation to the Lord Chancellor by a committee composed largely of justices). Shortly after the Human Rights Act 1998 came fully into force, it was argued, in two cases in magistrates' courts in the north east of England, that justices of the peace lacked a compatible independence. On both occasions, those arguments were rejected by the courts concerned, on the grounds that there existed adequate safeguards. No appeals were brought against those decisions. As far as we know, those arguments have never been pursued again.

It follows that there is no reason to suppose that the present arrangements are incompatible with Article 6 or, therefore, that the incorporation in legislation of the grounds for the removal of a justice would be incompatible, notwithstanding that removal would still be by the Lord Chancellor.

A further indication that what is proposed is inherently compatible is that, the decision of the Lord Chancellor to remove a justice (or any other judicial office holder) from office is susceptible to judicial review by the High Court itself. In that sense, therefore, the removal of a justice could not be effected without judicial acquiescence, and could never be effected improperly or arbitrarily.

Immunity of JPs

The potential liability of justices, and the liability of the Crown under section 9 of the Human Rights Act 1998, must be distinguished. The latter is not a species of indemnity. Should a magistrates' court, acting in good faith, commit a violation of Article 5, then the victim has complete potential redress in damages payable by the Crown even though the individual justices responsible (if acting in good faith) are immune from liability. Clauses 26 and 27 as they stand make no difference to that position. I do not believe, therefore, that your thoughtful amendment is necessary.

Disqualification of Justices who are members of local authorities

Clause 36(5) does not override the requirements of impartiality imposed by Article 6 or by English common law, nor does it purport to do so. The use of the word 'merely' is crucial. If a local authority justice were to adjudicate where Article 6 is engaged and in circumstances where that Article is violated by his doing so, then that would be unlawful by reason of section 6 of the Human Rights Act 1998. But where he acts in circumstances that do not engage the Article, or where his participation does not violate it—for example, at an interlocutory hearing—then the subsection provides that that action will not be invalidated merely because of the disqualification.

Effect of the Act of Settlement on existing JPs

For the sake of clarity paragraph (b) of the clause declares the position at common law, but does not change it. Under the doctrine of de facto authority, adjudications by foreign national justices were valid until it became apparent that their appointments were defective—whereupon they ceased to adjudicate. It is not the case, therefore, that the acts of these justices were unlawful by reason only of the defect in their appointments at the time of the acts in question.

Prosecution Appeals from the Court of Appeal (Criminal Division)

Your letter expresses concern about clause 83 of the Bill which would amend section 34 of the Criminal Appeal Act 1968 to extend the time allowed for the prosecution (but not the defence) to apply for leave to appeal to 28 days whilst the defendant would continue to be allowed only 14 days. The Committee considers there to be an inequality here, through allowing the prosecution twice as much time as the defence.

Currently, under section 34 of the Criminal Appeal Act 1968, both the defence and the prosecution have 14 days from the decision of the Court of Appeal to apply to it for leave and, if refused by the Court, a further 14 days from the date of refusal. However, section 34(2) allows the defence to make an application to the House of Lords or the Court of Appeal, at any time, to extend the time in which to make an application beyond the 14 days. But, neither the House of Lords nor the Court of Appeal have the power to extend the time for the prosecution if it wishes leave to apply for leave but fails to do so within the 14 days.

Sir Robin Auld, in his Review of the Criminal Courts (Chapter 12, paragraph 117), recognised this disparity and recommended that section 34(2) of the Criminal Appeal Act be amended to empower the House of Lords and the Court of Appeal to extend the time within which the prosecution may apply for leave to appeal as it does in the case of a defendant.

After discussion with the Registrar of Criminal Appeals and the Senior Judiciary, it was felt that an open­ended provision for the prosecution to extend the time to seek leave was undesirable because it would leave the defendant with the prospect of having his conviction restored at any time in the future.

Therefore, rather than to create an open­ended provision for extension of time, the policy is now merely to extend the time limit within which the prosecution may apply for leave to appeal to the House of Lords from 14 to 28 days. But the defence still retain the right to make an application to the House of Lords or the Court of Appeal, at any time, to extend the time in which to make an application beyond the 14 day limit. The provisions allowing continued detention of the defendant on appeal by the Crown are not being amended.

Because the defence is able to make an application at any time to extend the time in which to appeal beyond the 14 day limit, we do not consider there to be any breach of Article 6.1.

Setting the level of fees

The purpose of clause 87 is to replace, with a single common power, my current varied, general, powers to set fees to be taken in each of the three tiers of court, under section 130 of the Supreme Court Act 1981, section 128 of the County Court Act 1984, section 41 of the Matrimonial and Family Proceedings Act 1984 and section 127 of the Magistrate's Court Act 1980, respectively. I believe that those who can afford to pay court fees should do so. The Bill makes provisions that I must take such steps as are practicable to determine whether or not a person is able to pay the fees. However, my Fee Policy Principles, announced to Parliament in 1998, enshrine my assurance that fees should not prevent access to justice and that litigants of modest means should be protected.

At present Fees Orders issued under these current powers are laid before both Houses of Parliament but are not subject to affirmative or negative resolution. Although the Government already consults widely on proposed Fees Orders, clause 87 introduces a specific statutory requirement for wide consultation with the Heads of Division and, for the first time, the Head and Deputy Head of Civil Justice and, for civil proceedings, the Civil Justice Council. This, therefore, provides for much wider consultation than is currently required and I am satisfied that this will provide an effective oversight of court fees. Having carefully considered the views of the Select Committee on Delegated Powers and Regulatory Reform (2nd Report 2002­03, HL Paper 20) I consider that it would be preferable that orders made under the power in this clause be subject to negative resolution. This would provide for Parliamentary scrutiny of such Fees Orders and would bring the new power in line with other of the Lord Chancellor's powers to set fees, for example, fees charged by the Court of Protection under section 106(5) of the Mental Health Act 1 983.


You also asked for further information as to what other convention rights might be engaged by the Courts Bill. I consider that the security provisions engage rights under Article 8 and Article 1 of the 1st protocol, but am satisfied the interference is proportionate and the provisions compatible. New provisions as to binding rulings and transferring justices' clerks into the civil service, raise Article 6 issues; but I am satisfied that the provisions are compatible. Concern has been expressed as to whether the provisions in the Courts Bill to help improve fine enforcement are compatible with Article 6, however as I made clear during the Second Reading Debate on the Courts Bill this is a misapprehension. Any discretionary decisions that are taken by fines officers, will be subject to a full right of appeal to the court and I am satisfied that this complies with our obligations under the European Convention on Human Rights.

10 January 2003

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