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"Stoats and weasels


The hunting of stoats and weasels is exempt if it takes place on land—
(a) which belongs to the hunter, or
(b) which he has been given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs."

On Question, amendments agreed to.

[Amendments Nos. 27 and 28 not moved.]

Schedule 2 [The Hunting Tribunal]:

[Amendments Nos. 29 and 30 not moved.]

Constitutional Reform Bill [HL]

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.

Moved, That the House do now resolve itself into Committee (on Recommitment).—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

House in Committee (on Recommitment) accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]

Schedule 14 [The Judicial Appointments Commission: Relevant Offices and Enactments]:

Lord Maclennan of Rogart moved Amendment No. 88CPZA:


"Justices' clerkSections 2(1) and 27(1) of the Courts Act 2003 (c. 39)"

The noble Lord said: The purpose of the amendment standing in my name and that of my noble friend Lord Goodhart is to take account of the concerns which have been expressed by justices' clerks about the impact on their independence which flows from the reorganisation of the court system and which they contend has failed adequately to appreciate that their principal duties now are in the field of giving advice to the magistrates and, in a number of specified circumstances, taking a judicial role.

They have pointed out most eloquently and most cogently that the balance of the hybridity in their role to which the Lord Chancellor has referred has moved
 
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from administration to matters more clearly cognate to that of a judge. The concerns of the 70 justices' clerks are not theirs alone; they are shared very widely by the magistrates, who have written in substantial numbers not only to the Lord Chancellor, but also to my noble friend Lord Goodhart to express their concern and their support for the amendment.

The matter might appear on the face of it to be hypothetical or abstract, but, in practice, it is much more than that. The justices' clerks' concern is that whereas they have hitherto been ultimately appointed by the highest judge—that is, the Lord Chancellor—the change that is proposed in the Bill will result in their appointment being in the hands of a political Minister who will be the head of the department. The consequences they fear will arise from that are not be viewed as purely hypothetical or abstract.

One might have taken that view, perhaps legitimately, had not the most cogent and persuasive evidence been given to the Select Committee by Mr Neil Clarke on behalf of the justices' clerks' committee. He spoke about, and was cross-examined on, evidence of administrative tampering with the role of justices' clerks, which is already in train. As the matter seems to be so important, I draw the attention of the Minister to that evidence, which was given in answer to a question from the noble and learned Lord, Lord Howe of Aberavon, to Mr Clarke. It was Question 1153 at page 313 of the minutes of evidence which were published in the House of Lords Paper 1252. I hope that the House will forgive me if I read the relevant passage. It is a very strong passage and it has not been answered. Mr Clarke said:

Mr Clarke went on to give three examples of interference. He concluded:

Those concerns have been reiterated by a number of people—magistrates and justices' clerks alike—and seem to point to a need to go beyond the general prescriptions provided in Clause 1 as regards the independence of the judiciary, to providing particular reassurance that such actions would be inconceivable. I know that it is entirely within the Government's intention to strengthen the public perception of the independence of the judiciary through this Bill. That is what lies behind the Bill—that is its philosophical thrust. In a sense, this is an exception, but I cannot suggest that it is one that has been arrived at by inadvertence or oversight, for it has indeed been the subject of substantial correspondence. It is quite clear from the correspondence between the Justices' Clerks' Society and the Lord Chancellor that the Lord
 
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Chancellor has given considerable thought to the issue. I understand that he has it in mind to introduce two further amendments, as revealed in his letter of 2 October to the chief executive of the Justices' Clerks' Society.

My own judgment is that these proposed amendments do not go far enough to meet the concerns that have been expressed. They fail to recognise that, although it is true that the role of the justices' clerks is to some extent a hybrid one, with the new role of chief executive, the burden of administration has passed from the justices' clerks, and their pre-eminent role is a judicial one. That role would be vitiated if there were any thought at all that governments were seeking to ensure through favouring particular individuals that their own interpretations of the law were those which were grappled to the bosoms of the magistracy. That would have a distinctly corrupting effect. If that was perceived to be widespread, that could be thought to be undermining the judicial system at its very roots, since 97 per cent of criminal cases considered are handled by those magistrates' courts. While securing the top of the tree, allowing the roots to be undermined in that manner seems injudicious, and I ask the Government to reconsider.

I scarcely need to spell out in this House the role of the justices' clerks. They have an educational role, and an advice and training role. All those matters seem not to be susceptible to pressure from the Civil Service. While one understands the need for coherence in the unified administration, the independence which is characteristic of the justices' clerks in delivering their advice is something that the Government must give particular attention to over the other considerations, which seem to have carried the day.

It is not sufficient to ensure provision for a consultative process before an appointment is made, which is the intention, although it is not expressed in the Bill. That enables the Lord Chief Justice to intervene. Candidly, that is taking a hammer to crack a nut; it is an improvement, but the wrong improvement. I also believe that the issue of reassignment should not be handled in that way either. These matters are best handled in the manner which the Government have in mind for the rest of the judiciary through the Judicial Appointments Commission.

I find it strange to be in this position, because on the whole I strongly support the Government's intentions and particular aspects of the Bill. However, on this occasion, I beseech the Minister to take the matter away and reconsider it. I beg to move.

Lord Kingsland: I support the speech made by the noble Lord, Lord Maclennan, from the Liberal Benches. As he rightly said, 97 per cent of all criminal cases in this country are heard in the magistrates' court. Apart from those times when they are heard by the person who used to be described, although no longer, as the stipendiary magistrate, they are heard by lay Benches, which depend for their understanding of the law entirely on the wisdom of the magistrates' clerk. In effect, therefore, the magistrates' clerk sits as a judge when he gives that legal advice.
 
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Like the noble Lord, I am totally bewildered by the Government's stance on this matter. They say that the principle lying behind this Bill is the principle of the separation of powers. They are eager to remove, as quickly as possible, noble and learned Lords from the House. And yet they totally fail to apply the logic of the principle of separation of powers to the relationship between Parliament and the executive.

The effect of their unwillingness to act on this matter will be to ensure that justices' clerks, who ought to sit as judges, independent of both the legislature and the executive, in effect, sit as members of the executive. In other words, the Government are turning the logic of the principle that they say underlines the Bill on its head.

If the present situation is allowed to stand, there will be no separation of powers between the executive and judiciary in relation to the legal advice that justices' clerks give to the magistrates' Bench; and the Government will have driven a coach and horses through the principles that underlie their own legislation. I hope that they will listen to the noble Lord, Lord Maclennan.


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