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Baroness Ashton of Upholland: I am grateful to both noble Lords who have spoken, and recognise, as the noble Lord, Lord Maclennan, said, that he approaches the Bill from a similar philosophical standpoint to that of the Government. I also agree with him when he says that the position that the Government hold is not an oversight. We are not making these provisions having not thought them through—rather the opposite. As he said, there has been a great deal of correspondence and interest in this area, but we have come to a clear view.

To help the Committee, I shall spend a moment spelling the Government's precise position, not least because it is an opportunity for all of us as a Committee to reflect further on the matter. I also want to indicate what the Government propose to do further in terms of safeguards—although the noble Lord, Lord Maclennan, has done so to some extent—while not shifting from the position that we hold on where justices' clerks should sit.

I shall begin by setting out the steps that we want to take to achieve the right kind of protection to deal with some of the issues that both the noble Lords, Lord Kingsland and Lord Maclennan, raised in terms of appointment and reassignment of justices' clerks. I disagree with the noble Lord, Lord Maclennan, that we have approached this matter in an inappropriate way.

As both noble Lords will recognise, justices' clerks perform both an administrative and an independent function. I believe that is well understood. Their role in the magistrates' court is of critical importance. In that I agree completely with the noble Lord, Lord Kingsland. They hold a management responsibility. They provide, in terms of their non-judicial functions, pastoral support to lay justices, facilitating the lay Bench and its dealings with court users, secretarial support to the advisory committee and sub-committees, leading and managing their legal staff in their areas—that is a very important
 
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function—including training, development and assessment. They have a line management function in terms of courtroom and listing staff.

Therefore, they play, and will continue to play, a real part in the management of local areas. They currently do so and we wish them to continue to do so. We want to ensure too that the essential independent advisory role is respected. Noble Lords who participated in the Courts Bill will, of course, remember the extensive discussions and debates that took place on these issues during the passage of that Bill. I believe from my own reflections and, more importantly, from what I have been told, that a consensus was reached on the way forward. The Constitutional Reform Bill now provides for the transfer of existing judicial functions in primary legislation of the office of Lord Chancellor. These provisions follow the agreement set out in the concordat to which we have referred many times in the course of these Committee discussions.

It is right and proper that safeguards are in place to ensure the independence of justices' clerks in their judicial role when Her Majesty's Courts Service is established. To that extent I agree completely with the noble Lord, Lord Kingsland. In that respect Section 29 of the Courts Act is an unambiguous statement of the need to protect the independence of the advice of justices' clerks to magistrates. It provides that, when exercising these independent functions, a justices' clerk is not subject to any direction of the Lord Chancellor or, indeed, of any other person. Clause 1 of this Bill further enhances that by placing a duty on the Lord Chancellor, along with all Ministers, to uphold judicial independence and places on him a particular duty to have regard to the need to defend judicial independence.

I turn briefly to the amendments before us. As we have indicated, justices' clerks carry out an important role but they are not judges. As noble Lords will be more aware than I, they do not have formal judicial status. They do not conduct trials or sentence offenders and they do not take the judicial oath. The Judicial Appointments Commission will be set up to select judicial office holders and will have the skills and expertise to do so. I do not believe that it would be adequately equipped to select people for their administrative and managerial skills as well as their skills in giving legal advice.

Moreover, it would also not provide any opportunity for the justices' clerks' employer—that is, Her Majesty's Courts Service—to be involved in the selection process. The role of the employer in that process will be an important one—to ensure that candidates are found who can effectively balance both elements of this hybrid role, and that they are selected on that basis. It would also not be in anyone's best interest to exclude the body that employs and sets the terms and conditions for the office in the way this amendment proposes.

We believe it is appropriate for the power to appoint justices' clerks to rest with the Minister given his overall accountability to Parliament under Section 1 of the Courts Act 2003 for the administration of the
 
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courts. That power will, however, be delegated to Her Majesty's Courts Service under the Carltona principle in line with the appointment of all employees of that organisation. Appointments will be made in accordance with the code of the Civil Service Commissioners, which is based on the principle that appointments must be made on the basis of merit in fair and open competition. That, of course, underpins the maintenance of a politically impartial Civil Service, and very important it is too. There will, therefore, be no actual ministerial involvement in the appointment process.

The Lord Chancellor has discussed the matter of appointment of justices' clerks with the Lord Chief Justice, who I recognise takes this issue very seriously, and they have agreed that the Government should bring forward an amendment to the Bill on Report. As the noble Lord, Lord Maclennan, indicated, this will provide that the Minister should consult the Lord Chief Justice before designating and assigning a justices' clerk. In practice this will be achieved by including a judge or a magistrate on the local selection panel arranged by Her Majesty's Courts Service for any justices' clerks appointments. That will ensure direct judicial involvement in the selection process, which is important given the dual role of justices' clerks. We believe that this process is the most appropriate way forward and best reflects the role that justices' clerks play.

I refer to the evidence of Mr Clarke raised by the noble Lord, Lord Maclennan. Indeed, the Government have responded to the examples that were raised by the Justices' Clerks Society in its written evidence to the Select Committee, which forms part of the committee report. It is entirely right that where the judiciary considers that the initiatives that government take have implications which it feels would undermine its judicial independence or interfere with its work, it should, of course, point that out. That should then be considered and resolved. The judiciary should not be afraid to raise those issues relating to the independent aspects of its role. I understand that the Deputy Lord Chief Justice pointed that out when he spoke at the justices' clerks' last conference, as well as emphasising that, if necessary, any issues about their independence would be fought as determinedly as they would be if they related to the senior judiciary. I hope that that did a great deal to reassure justices' clerks.

We think it is right that we should look at whether further safeguards should be put in place to preserve the independence of justices' clerks in the advice they give to magistrates. In that context the Judicial Committee, chaired by the Deputy Chief Justice to whom I have just referred, proposed that an area judicial forum and justices' issues group should be established in each of the 42 management areas. These are now being set up in advance of the establishment of Her Majesty's Courts Service. They will provide the opportunity for justices' clerks to raise any matters relating to their work, including issues surrounding their independence, if they arise. We think that this will be a very effective mechanism for dealing with issues
 
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or concerns. As I have said, the Deputy Chief Justice has indicated his strong support to fight determinedly on behalf of justices' clerks if they felt their independence was being affected in any way.

The Lord Chancellor has also agreed with the Lord Chief Justice that he will bring forward an amendment to Section 27(4) of the Courts Act on Report to provide that any reassignment of justices' clerks should be with the concurrence of the Lord Chief Justice. This is in addition to the current provision of Section 27(4) which provides for consultation with the Bench chairmen, which was discussed during the passage of the Courts Act.

I believe that the Government have reflected very carefully on the best way forward for justices' clerks recognising the very important and valuable role that they play and the independence which they need to have. But having reflected we are quite clear that the proposals we have in place, with the safeguards I have indicated, and the proposals for Report stage, are the way forward.

I hope that, having spoken at length, I have reassured the noble Lords, Lord Maclennan and Lord Kingsland, and that the noble Lord, Lord Maclennan, will feel able to withdraw his amendment.

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