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Baroness Anelay of St Johns moved Amendment No. 52:

"( ) Before the Lord Chancellor takes steps to remove a justices' clerk from office he shall—
(a) consult the justices for the relevant local justice area;
(b) consult the Court Administration Council for the area which includes the relevant local justice area; and
(c) consider any recommendations made to him by the justices, the Court Administration Council or by the justices' clerk who is under notice of removal."

The noble Baroness said: In its response to the draft Bill, the Justices' Clerks' Society states that it is important to ensure that safeguards are in place for the process of the removal from office of a justices' clerk. We have discussed the process by which justices' clerks

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should be appointed. We now turn now to the other end of the process and discuss how they should be removed.

My amendment probes the good practice that should be followed if the Lord Chancellor determines to remove a justices' clerk. Whom will he consult? Should it be the justices, or the court administration council? In consulting, what notice would he take of the views expressed? What does he consider to be his duty in accepting or rejecting those views, and would he make that consideration public? What hearing would be given to the justices' clerk who was under threat of removal?

The noble Baroness, Lady Scotland, stated at Second Reading that the decision-making on removal would effectively be taken by,

    "the local chief officer, who makes decisions within the court administrative council".—[Official Report, 9/12/02; col. 83.]

So what will happen if the local justices and members of the CAC disagree with the local chief officer? Who has the final say?

My amendment, which noble Lords opposite may be relieved to hear is a probing amendment, after their recent exercise—

Baroness Scotland of Asthal: Shame!

Baroness Anelay of St Johns: The Minister says it is a shame. Perhaps she tempts me to make the amendment more probing. We shall see. The amendment provides good practice on the face of the Bill. It would add the provision that the Lord Chancellor should consult,

    "the justices for the relevant local justice area . . . consult the Court Administration Council . . . and . . . consider any recommendations made to him by the justices, the Court Administration Council or by the justices' clerk who is under notice of removal".

I beg to move.

Lord Borrie: Clauses 23 and 24 deal with the functions of the justices' clerk, and in certain respects his independence. About half an hour ago, my noble friend the Minister mentioned that justices of the peace can be dismissed only on certain grounds, including "incapacity or misbehaviour"—a phrase with which we are familiar in relation to professional judges and which appears in any case elsewhere in the Bill in relation to those professional judges described as district judges.

Under clauses that we are about to discuss, the justices' clerk will in many cases have to substitute for justices and in others will have judicial or judicial-type functions. Why, I wonder, should the justices' clerk be more easily removable than under the provision which is fresh for lay justices and more familiar from the point of view of certain professional judges; namely, circuit judges, and, as has been the case for many years, district judges?

In other words, I am more concerned about the independence of the justices' clerk being truly underlined. I am sure that I can appeal to the noble and

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learned Lord, Lord Mayhew, in the light of his earlier remarks. I am sure that many Members of the Committee must be concerned that the justices' clerk should be able to give legal advice according to the functions set out in the next clause, freely, without worrying whether it is in accordance with some current statement by the Lord Chancellor's Department; and that that independence should be subscribed to by having a formal procedure that he can be dismissed only on certain grounds.

I am more interested in getting answers to why the removal provisions are not in the Bill, and in how they could be included to help the points that I have just mentioned, than I am in the possibilities set out rather ponderously in the amendment of a complicated set of rules for consultation before a justices' clerk can be removed.

Lord Carlisle of Bucklow: Having sat patiently through the earlier debates but not taking part, I was struck by the fact that the Minister herself stressed the importance of the independence of the justices' clerk and the high regard in which she holds the magistracy. Surely, as the noble Lord, Lord Borrie, has said, if that independence is to be clear, there must be some clear set of principles on which the clerk can be removed. I hope that the Minister will accept at least the spirit behind the amendment.

Lord Mayhew of Twysden: My Lords, the noble Lord, Lord Borrie, does not look to me in vain. I support what he says, for the reasons that he gave. The Government's difficulty arises from the fact that they are turning the justices' clerks into civil servants and members of the Lord Chancellor's Department. But that does not render impossible the achievement of the change advised by the noble Lord, Lord Borrie.

Baroness Scotland of Asthal: I thank all Members of the Committee who have raised this issue. Of course I understand the reasons why these concerns have been expressed.

As I said in relation to other amendments, we expect that consultation with the local magistracy via the Bench chairman will continue over the assignment or replacement of justices' clerks. I suggest, however, that it would be inappropriate to consult court administration councils on such matters. While court administration councils may have a strategic role in staffing matters, they will not be the employer body; nor will they represent the interests of local magistrates. There would, of course, be nothing to prevent the local court administration council, magistrates or the justices' clerks themselves from making representations to the new court agency in the rare event that a clerk is to be removed from the post.

In answer to my noble friend Lord Borrie on the removal of justices, all that is new in the Bill is listing the grounds for removal. Under the Justices of the Peace Act, the power to remove is unfettered, save by the usual public law principle.

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In relation to justices' clerks, they, as any other employee, or indeed civil servant, have a right to be protected from unfair dismissal, so all of those rules will continue.

I should say en passant that Members of the Committee have made a clear distinction between the way in which justices and other judges are removed and the fact that that is now coming together. One remembers that justices' clerks, important as they are, are not judicial officers—although they have huge importance and independence.

The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Hunt, both expressed concerns about justices' clerks becoming civil servants and about the possible reduction in their independent status. Justices' clerks are currently employed by specific magistrates' courts committees. Clause 24(1) of the Bill states that justices' clerks, while exercising advisory or judicial functions, will not be subject to the direction of the Lord Chancellor or anyone else—I stress "or anyone else". That reflects the current provision, which similarly guarantees independence from the justices' chief executives. So justices' clerks will have exactly the same statutory guarantee of independence in relation to their advisory and judicial functions as they currently do. We do not intend to change that position.

I understand that this is a probing amendment. I hope that I have been able to give the noble Baroness satisfactory answers and she will feel able to withdraw the amendment at this stage and, it is to be hoped, not bring it back.

Baroness Anelay of St Johns: I thank the Minister for her helpful response, although I cannot satisfy her entirely on not bringing back an amendment at a later stage. I am grateful to the Members of the Committee who took part in the debate.

I need to reflect carefully on the wording of the amendment. I am grateful for the Minister's comments with regard to the expectation that consultation would continue with justices. I need to see how that would be expressed in the Bill, if at all.

I take the Minister's point that the CAC may not be the proper body to be included in the amendment, if the Bill goes forward in its current form and there are no further changes in the way in which local management takes place. I accept that, as it is currently constituted, the CAC may not be the right body to be included in the amendment. I included it to get some idea from the Government about the relationship between the CAC and the justices' clerks. I am grateful to the Minister for saying clearly that the CAC is not the employer and does not represent the interests of magistrates.

I agree with the noble Lord, Lord Borrie, that more important matters underlie the amendment. A person should not be removed from his position as justices' clerk unless for a good career reason or because he is not performing to the best of his ability. The reason should be justifiable and not a matter of personal prejudice—not that one would ever accuse the current

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Lord Chancellor of doing that. We are talking not about a personality but about what powers might be written into the Bill.

After the comments made by the noble Lord, Lord Borrie, I shall consider the amendment carefully. I do not think that it should be brought back exactly as it is in its current form or simply by chopping out the CAC reference. I need to consider more closely the mechanism for removal. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Functions]:

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