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Lord Gisborough: I am grateful to the noble Lord for his long explanation which will be read with very great interest by the justices' clerks who are very concerned about this matter. The noble Lord has also answered a good number of the points arising on Amendments Nos. 323 to 326. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 320 to 322 not moved.]
12.15 a.m.
Viscount Tenby moved Amendment No. 322A:
The noble Viscount said: In moving Amendment No. 322A I should like to speak at the same time to Amendment No. 322B. Since the shades of night are falling fast and it has been a long day perhaps the Committee will allow me to encompass Amendment No. 326ZA since all of these amendments are based on the same concern; namely, the independence of the justices' clerk in giving legal advice to his justices, which can be described only as the nitty-gritty of this clause. We have skirted round this for quite a time with various amendments that have come and gone. I am sorry to retrace my steps a little but I shall be as quick as possible.
I believe that the provisions concerned with the future relationship between the justices' chief executive and the Bench's justices' clerk entirely justify the concern which is evident within the magistracy and has been expressed in the Committee tonight. What it comes down to is that in future the justices' clerk will be unfettered in giving advice to his justices only on legal matters in individual cases and at all other times he may be subject to the directions of the justices' chief executive who may not be qualified in legal matters.
One of the provisions of the Bill is that a legal qualification need not be a requirement for appointment as a justices' chief executive. I have no quarrel with that proposal. To ensure that the best business and managerial talent is available to MCCs must make sense. I have been long associated with an MCC which I believe is the only one in England and Wales so favoured. I use the word "favoured" quite deliberately. But the corollary of this is that legal matters must be left in the domain of the justices' clerk.
I quote one example. Since criminal justice Bills have been annual events for the past 10 years, training takes on even greater importance in all magistrates' courts. The only people who are qualified to give such instruction are justices' clerks. I would be grateful to receive the assurance of the Minister that the role of the justices' clerk in that area of training is absolutely guaranteed. Were the task to be undertaken by anyone else there would not be the necessary guarantee of impartiality. For example, who is to say that a spin in favour of a government's desired option may not be imparted to some new legal provision?
There are other duties that should be undertaken by justices' clerks. Can anyone honestly contend that listing is not one of them? So that I should not be thought to be one of the unhelpful diehards, in principle, I do not see why the collection of fines, other than judicial decisions relating to enforcement, cannot come within the compass of a justices' chief executive. I believe that that is an administrative function.
I return however to the overriding concern created in these clauses which is the threat to the independence of legal advisers. Unless one clearly delineates--the Minister has been kind and wise enough to refer to the difficulty over nomenclature that arose when we discussed the Police and Magistrates' Courts Act--one has a grey area. If I understand it correctly, the magistracy says that there should not be any grey areas but only black and white areas so that everyone knows where they stand. Let the justices' chief executives and justices' clerks know what they can and cannot do. The purpose of my amendment is to refer to the correct description of the duties of the justices' clerk in the Justices of the Peace Act 1997. I beg to move.
Lord McIntosh of Haringey: I am grateful to the noble Viscount for proposing his four amendments together. It is more sensible. Amendments Nos. 322A and 322B propose changes to Clause 60, which addresses the role of the justices' chief executive. The effect of the amendments--although they are technically defective--is to extend the protection from direction provided in Section 48 of the Justices of the Peace Act
The new Section 41 of the Justices of the Peace Act that Clause 60 introduces makes it plain that justices' chief executives may not give directions to justices' clerks in matters set out in Section 48.
I now turn to the two amendments to Clause 61. Clause 61 enables the magistrates' courts committee to separate the legal and administrative functions undertaken in the committee's area. Subsection (1) brings into effect Schedule 9 which makes amendments to existing legislation, transferring certain administrative functions of justices' clerks to justices' chief executives. Transferring the responsibility for those tasks will enable the chief executive to delegate to any appropriate member of staff which may, of course, include the justices' clerk. That is a decision that can be made locally.
I turn to Amendment No. 326YA, the effect of which would be to further qualify the description of administrative functions. As I said, I do not intend to transfer the responsibility from the justices' clerk to the justices' chief executive for the provision of legal advice generally; nor do we wish to interfere in the relationship between the justices' clerk and the Bench of magistrates.
The noble Lord, Lord Phillips of Sudbury, referred to the wording of subsection (5). The purpose of that subsection is to give reassurance. However, we are willing to look again at the drafting of subsection (5) in the light of what has been said. In turn, that could have an effect on the wording of Clause 60 that we have debated already. To that extent, there is an opening.
Finally, I turn to Amendment No. 326ZA, the effect of which would insert two new subsections in Clause 61. I said earlier that it is not the role of the chief executive to interfere in individual cases. The chief executive cannot and must not interfere in the judicial process which is fully protected within the existing provisions of Clause 48 of the Justices of the Peace Act 1997. The further definition that subsection (7) would introduce specifies a description of judicial function for justices' clerks which is simply not acceptable. It would bring about exactly the position I mentioned earlier where the chief executive was prevented from giving directions to justices' clerks on matters of information such as good practice. I recognise that that is a sensitive area. It is appropriate to discuss the matter now and the department is in consultation and correspondence with a number of interested parties on these matters. It is vital to preserve the integrity of proceedings in the magistrates' courts and we believe that the provisions in Clauses 60 and 61, subject to what I said about subsection (5), will serve to achieve the delivery of better quality legal advice to lay justices while simultaneously ensuring that the responsibility for the efficient administration is appropriately placed with the chief executive.
As I said, I shall consider any further representations, and if necessary bring forward further amendments. I hope the noble Viscount is reassured and that he will therefore withdraw his amendment.
Viscount Tenby: I am grateful to the noble Lord the Minister for his courtesy in dealing so fully with this important matter - and it is important. I may be suffering from late night languor, but I hope I have detected a chink of light and sweet reasonableness in what he said. I shall wait until the cold light of morning to study it more closely. In the meantime, I beg leave to withdraw the amendments.
Amendment, by leave, withdrawn.
[Amendment No. 322B not moved.]
Clause 61 [Transfer of administrative functions of justices' clerks]:
Lord Gisborough moved Amendment No. 323:
The noble Lord said: Most of the points I would have made have been covered. However, I wish to raise two matters.
First, the noble and learned Lord the Lord Chancellor should not by statutory instrument be allowed to amend what is and what is not administrative. It must be a matter which Parliament alone should determine because of the consequences of judicial independence.
Secondly, I am not entirely sure that the noble and learned Lord has considered all the ramifications which transferring control functions to the justices' chief executive will cause in relation to the European Convention on Human Rights. Will the justices' chief executive appear in person when prosecuting fine or maintenance defaulters as the justices' clerk will no longer be able to act in the same capacity of collecting officer because of the danger of partiality? I beg to move.
Lord McIntosh of Haringey: I am grateful to the noble Lord for not repeating the arguments which we have adequately rehearsed, so I shall respond only to his specific points.
The noble Lord complains that subsection (2) provides for the Lord Chancellor to make an order by statutory instrument to transfer administrative functions and says that this should be a matter of primary legislation. I cannot accept that, and neither did the Delegated Powers and Deregulation Committee. These are matters which may change from time to time and it would be clumsy for it to wait for a suitable opportunity to come back to Parliament.
The noble Lord's second point is more technical. If I may, I shall write to him on that. On that basis, I hope that he will withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 324 to 326YA not moved.]
Page 37, line 4, at end insert--
("( ) after "functions" insert "and powers";").
Page 37, line 16, leave out subsections (2) to (4).
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