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Lord Jenkin of Roding: My Lords, I am immensely grateful to the noble Lord for the careful way in which he has responded to the amendment I moved. I think that the association will regard the matter as now having been properly aired.
The noble Lord laid some emphasis on the concepts of competition and monopoly. No doubt the association will take note of that. As I said in my opening remarks, I think that the amendments tabled which will be discussed in a moment may go some way to reassure the association that its concerns are recognised. The association points out, however, that in a number of
other services where one has specialists who need to be managed by non-specialists the experience has not always been a happy one. My experience of that in the health service is perhaps one example. One can think of the Crown Prosecution Service, the Police Service and so on. I hope that the noble Lord and the Government are right and that there will not be the difficulties which the association fears. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Lord McIntosh of Haringey moved Amendment No. 186:
The noble Lord said: My Lords, in moving Amendment No. 186, I speak also to Amendments Nos. 187 to 189. The principal amendment is Amendment No. 188.
I shall try to avoid repetition because it was necessary for me to introduce some of the argument in response to the noble Lord, Lord Jenkin, on the previous amendment. These amendments are brought forward as a result of our debate in Committee on the respective roles of the justices' chief executive and the justices' clerk and the transfer of administrative functions of justices' clerks. A number of amendments were proposed which I might summarise as having the intention of providing confirmation of the independence of justices' clerks in the exercise of their legal and judicial functions.
In response to the representations, I agreed to consider further the concerns of those who laid amendments to what are now Clauses 59 and 60. I also agreed to bring forward further government amendments, if that proved to be appropriate. We have given further consideration to the concerns expressed about the role and independence of the justices' clerk and we have had useful meetings and correspondence with those in the magistrates' courts service. We were concerned to find a proper balance between the need to maintain independence in the provision of legal advice and the clear need for justices' clerks to be properly under the direction of the justices' chief executives in matters of administration.
We have accepted that some advice-giving on matters of law stretch beyond that of an individual case. We have also identified some further judicial functions of justices' clerks which are not covered by the existing provisions in Section 48 of the Justices of the Peace Act, 1997; that is, some judicial functions conferred upon justices' clerks directly by statute rather than by rules made in accordance with Section 144 of the Magistrates' Court Act 1980.
For both of those reasons, we accept that the description in Section 48 of the Justices of the Peace Act is no longer sufficient to describe the range of functions in respect of which the justices' clerk should be independent of direction. Consequently, new Clause
The definitions in Section 45(4) and (5) are amended to make it clear that the functions and powers referred to concern advice on matters of law, which includes matters of legal procedure and practice. We believe that the clear link between this provision and Section 48 removes any doubt about the independence of clerks when giving legal advice, which goes beyond that given in individual cases.
Amendment No. 187 has the effect of removing subsection (3) from Clause 59. This is no longer required in the light of the amendment to Section 48 of the Justices of the Peace Act 1997. Amendment No. 186 amends Clause 59 by making an alteration to the wording of new Section 41(4) of the Justices of the Peace Act 1997. The amendment makes it clear that one of the purposes of the meetings, arranged by justices' chief executives for justices' clerks to discuss matters of law, is to promote the consistency of legal advice given by justices' clerks throughout a magistrates' court committee area.
Our debate on amendments considered at the Committee stage included amendments laid on Clause 59(6). In the light of the government amendment to Section 48, there is no need to make any change to this provision.
Finally, Amendment No. 189 makes a consequential amendment to Clause 60(5). It might be helpful if I were briefly to remind your Lordships that the purpose of the clause was to bring about the transfer of responsibility for administrative functions to the justices' chief executive. Subsection (5) of the clause attempted to provide reassurance that there was no intention to transfer responsibility for legal matters to the chief executive. The amended subsection (5) confirms, in light of the new Section 48, that for the purposes of this section, the administrative functions of justices' clerks are all those apart from those which are legal functions within the meaning of the new Section 48(2).
I apologise for the length of this speech, but the issue is important and complex. I believe it is important for your Lordships to consider this package of amendments as a whole. I hope that you are reassured that the concerns expressed by some noble Lords during Committee stage have now been comprehensively, and satisfactorily, addressed. The independence of legal advice generally, free from direction by the justices' chief executive or magistrates' courts committee, is secured. There is more clarity as to which functions are legal and a proper line is drawn between the responsibilities of chief executives and justices' clerks. I beg to move.
Lord Gisborough: My Lords, I thank the noble Lord for the great trouble he has taken to allay the concerns
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 187:
On Question, amendment agreed to.
Lord McIntosh of Haringey moved Amendment No. 188:
Page 36, line 30, leave out from ("to") to end of line 31 and insert ("matters of law (including procedure and practice) among the justices' clerks appointed by the committee, in particular with a view to securing consistency in the advice given by them to justices about such matters.").
Page 37, line 3, leave out subsection (3).
After Clause 59, insert the following new clause--
(".--(1) For section 48 of the Justices of the Peace Act 1997 substitute--
"Independence of justices' clerks and staff exercising legal functions.
48.--(1) When exercising any legal function--
(a) a justices' clerk shall not be subject to the direction of the justices' chief executive or any other person or body; and
(b) a member of the staff of a magistrates' courts committee shall not be subject to the direction of any person or body other than a justices' clerk.
(2) In subsection (1) "legal function" means--
(a) any function exercisable by one or more justices of the peace; or
(b) a function specified in section 45(4) or (5) above."
(2) In section 45 of that Act (functions of justices' clerks)--
(a) in subsection (4) (advice on law, practice or procedure to justices at their request), for "law, practice or procedure" substitute "matters of law (including procedure and practice)", and
(b) in subsection (5) (power to bring point of law, practice or procedure to attention of justices), for "law, practice or procedure" substitute "law (including procedure and practice)".").
On Question, amendment agreed to.
Clause 60 [Transfer of administrative functions of justices' clerks]:
Lord McIntosh of Haringey moved Amendment No. 189:
On Question, amendment agreed to.
Schedule 10 [Transitional provisions and savings]:
Lord Falconer of Thoroton moved Amendments Nos. 190 to 191:
On Question, amendments agreed to.
Schedule 11 [Repeals and revocations]:
Page 37, leave out lines 26 to 31 and insert ("those which are legal functions within the meaning given by section 48(2) of the Justices of the Peace Act 1997.").
Page 99, line 44, leave out ("directs") and insert ("specifies").
Page 100, line 12, leave out ("14(2)(a)") and insert ("14(1)").
Page 100, line 14, leave out ("direct") and insert ("specify").
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