Memorandum by Justices' Clerks' Society
ROLE OF THE JUSTICES' CLERK
The Justices' Clerk is the senior lawyer and
adviser to the magistracy. Currently the appointment is made under
the Justice of the Peace Act, 1997 and requires the post holder
to be a solicitor or barrister of five years' standing or be a
solicitor or barrister with five years' experience of working
in Magistrates' Courts.
The core responsibilities of the role are as
follows:
— Provision of consistent and accurate
advice to the lay bench both personally, and through the team
of legal advisers.
— Training the lay bench, subject to
the guidance of the Judicial Studies Board.
— Providing "pastoral support"
to lay Justices.
— Facilitating the lay bench in its
dealings with court users and partner agencies.
— Providing secretarial support to
the Advisory Committee and Sub-Committees.
— Leading and managing the legal staff
assigned to their areas including their training, development
and assessment.
— Exercising powers under the Justices'
Clerks Rules 1970 and delegating those powers to appropriate members
of staff.
— Advising and supporting Magistrates'
Committees and Panels.
— The listing of cases, magistrates'
rota and policies on fines enforcement.
— Line management of court room and
listing staff.
The proposed changes in the status of the Justices'
Clerk are contained in the Courts Act 2003. Whilst the protection
from interference when carrying out judicial functions is replicated
in the Courts Act, there was at first, a reluctance to have Justices'
Clerks' appointments and removals subject to consultation with
the local benches. This amendment was secured in the passing of
the Courts Act and acknowledged the special and unique relationship
that exists between the Justices' Clerks and the benches they
serve. However, whilst the Government feels that the protections
in the Courts Act are sufficient to guarantee the independence
of the Justices' Clerks, many people involved in the courts believe
that the transfer to the civil service will lead to a gradual
erosion of this independence. This belief is based on the fact
that, firstly the proposed abolition of the post of Lord Chancellor
drastically changes the constitutional position. Secondly there
is "guidance" frequently being issued by the Department
of Constitutional Affairs, which regularly crosses the line into
the judicial area.
The proposal has been made to abolish the Office
of the Lord Chancellor, to establish a Supreme Court, which will
replace the House of Lords as a Judicial Body, and to create a
Judicial Appointments Panel made up of independent members. The
logic behind this proposal is to remove an anomaly from the constitutional
arrangements in this country and to establish a true separation
of powers between the Executive, Legislature and Judiciary. The
Office of the Lord Chancellor had effectively straddled the three
arms of government for centuries.
There has been much opposition to what is perceived
to be an over hasty and ill-considered policy which attacks the
heart of the unwritten constitution of the country. If this claim
is to be denied and refuted, it is necessary to ensure that the
concept is applied throughout, and at every level of, the Judiciary
and the Judicial System. The Supreme Court, Court of Appeal, High
Court, Crown Court, County Court and the District Judges will
be caught by this new system. However, it must be remembered that
97 per cent of all criminal cases are concluded in the Magistrates'
Court. It is therefore essential that the Magistrates' Court is
included in the process.
The Lord Chancellor, acting on the advice of
local Advisory Committees, formally makes the appointment of Magistrates.
These Advisory Committees are made up of Magistrates and other
persons with skills that will assist the appointment process.
It is easy to envisage that this body can report directly to the
new Judicial Appointments Panel, effectively acting as Sub-Committees.
It may be prudent to review their constitution and membership
as part of the overall process, but it could fit well with the
arrangements proposed for the Higher Courts.
There remains one element that does not fit
with the new policy, and this concerns the position of the Justices'
Clerk and Justices' Clerks Assistants (Legal Advisers) who have
unique access to the retiring room while the bench is deliberating.
Under the proposals, the Justices' Clerks and the Legal Advisers
will become civil servants, employed by an Executive Agency reporting
to the Director of Operations, in what was the Lord Chancellor's
Department and, through that person to the Lord Chancellor, or
the Secretary of State For Constitutional Affairs who will be
granted this role by future legislation. The effect of this will
be that the legal advice given to the Magistrates will, in the
vast majority of criminal cases, be given by civil servants reporting
directly to the Executive. This was expressed as a matter of concern
in the second reading of the Courts Bill in the House of Lords
and was identified as an issue for debate in the House of Commons
by the Select Committee considering the Bill. It is easy to dismiss
this by stating that Justices' Clerks and the Legal Advisers are
not "Judiciary" and therefore, not within the intended
reforms. However, this would be to ignore the Justices' Clerks'
Rules 1970, whereby Justices' Clerks, and advisers are under delegated
powers given the same substantial judicial powers as are given
to a single justice. They are able to make, not simply quasi-judicial
but full, Judicial decisions. On the 9 May 2003, the Lord Chancellor
announced his intention to create greater Case Management powers
and that these powers were to be given, primarily, to the Justices'
Clerks. This follows the pattern established in Family Cases by
the Children Act 1989, where Clerks have successfully been involved
in Case Management for 14 years. It is clear that the Justices'
Clerk has to follow a Judicial rather than Administrative line.
All levels of the Judiciary support the principal
that Justices' Clerks should be outside the civil service. This
has been clearly stated on many occasions. The Unified Administration
Judicial Committee expressed unanimous support for the statement
of Lord Justice Judge (Deputy Lord Chief Justice) who stated that
"the independence of the Justices' Clerk needed to go beyond
statute" and that "Judicial independence could only
be achieved if appointment, deployment and discipline were outside
the political processes. . . the same consideration applied to
Judges as for Magistrates, and the independence of Justices' Clerks
underpinned the independence of the Magistrates". These statements
of support summarise the views of all groups of the Judiciary
and the bodies that represent them, including the Magistrates'
Association.
There is also clear support for the proposal
that the training of Justices' Clerks and Legal Advisers, should
come under the umbrella of the Judicial Studies Board (JSB) as
they are part of the "Judicial Family". This proposal
has been accepted in principle by the JSB and only requires a
formal direction to the JSB from the Lord Chancellor to become
fact. There remain issues of resources and timing but these are
not without possible solutions. The principle was well illustrated
by Lord Justice Kay who said that the Criminal Procedure Rules
Committee was developing procedures for every tier of court. It
would be quite illogical if the legal advisers to the Magistrates
were trained differently and/or separately to everyone else in
the process. It could potentially undo all of the efforts of commonality
being established by the Criminal Procedure Rules Committee.
The public will require confidence and expect
transparency in any new system. The current situation, on abolition
of the post of Lord Chancellor, would result in Justices' Clerks
and Legal Advisers being appointed by a politician, in the form
of the Secretary of State for the Department of Constitutional
Affairs. (At present the appointment by the Lord Chancellor is
an appointment in his Judicial capacity). If the Justices' Clerk
is a civil servant he or she will be bound by the civil service
code and, although theoretically protected by statute, the day
to day pressures could easily result in the Government's view
of legislation, rather than an independent view, being presented.
The clear separation of roles inherent in the proposal to abolish
the role of the Lord Chancellor, will be specifically reversed
in relation to Justices' Clerks, who are the legal advisers to
the branch of the Judiciary that delivers 97 per cent of all criminal
cases and a large percentage of Family cases. It is difficult
to envisage how a member of the public could conclude that a civil
servant appointed by a Government Minister will be open and transparently
independent in the advice given in any situation.
There are already many examples of attempts
at inappropriate instruction or direction whilst the Justices'
Clerks are outside the civil service.
TRUANCY
As part of a Government initiative on Truancy,
a circular was issued which gave guidance on how to address the
problem and "offered" the assistance of a District Judge
(Magistrates' Courts) to any area that did not currently have
one, to ensure a greater consistency. The expectation appeared
to be that the District Judge would deliver decisions which were
"on message", whereas the lay magistracy could not be
relied upon to achieve the desired results.
"OPERATION PAYBACK"
"Operation Payback" was a specific
initiative as part of the Government's drive to increase the percentage
recovery of fines imposed by the courts. Part of the guidance
contained a suggestion that, prior to the special court hearings
taking place, there would be a meeting of all parties involved
including the Justices and the Clerk. This was clearly inappropriate
and would have compromised the court but the Department's lack
of knowledge in this area led to these "instructions"
being issued.
TRANSFER OF
FINE ORDERS
The decision to transfer a fine is a Judicial
decision. The Department proposed to issue instructions that were
"directory and mandatory". The effect would be that
the Department would tell the Magistrates and the Justices' Clerks
how and when to use their Judicial powers. This was challenged
and corrected but, in the absence of challenge, the circular would
have been issued. There is no guarantee that consultation will
be considered under the Unified Administration.
UNDER 14'S
ATTENDANCE AT
COURT
No child under the age of 14 can be present
at criminal proceedings unless a specific criteria is met. The
final decision whether to permit the child to view the court rests
with the court sitting on the day. The Department wished courts
to adopt a procedure whereby school parties, not just individual
children, could be given an advance indication that all would
be well if they attended the court.
There can be no guarantee in advance of the
court and the purpose behind the original legislation was to prevent
under 14 year olds attending court. It is not for the Department
to "find ways around" the legislation. If Parliament
wishes to allow under 14 year olds to attend court then it can
legislate, it is not for civil servants to re-write the law or
try to regulate its effect.
These attempts to enter into the judicial arena
have so far been challenged and resisted but this will become
increasingly difficult when the challenge relates not to an outside
body but directly to ones' employer. Whilst protection is available
by statute and the professional bodies, the practicalities of
careers, promotion and location will actually be, or appear to
be, an undermining factor which will bring into question the true
independence of the post holder. Current holders of the post of
Justices' Clerk may be willing to resist now, but three or four
generations on, what will be the culture in an environment where
"true" independence has never been experienced?
The Department for Constitutional Affairs has
expressed a concern that if the Justices' Clerks were outside
the civil service, there would be a lack of accountability. The
Justices' Clerk is not trying to evade accountability, but the
possibility of inappropriate influence. The Justices' Clerk in
his judicial role is accountable, as with any Judicial decision,
through the Higher Courts in individual cases. This process also
guarantees consistency of advice. The resource management role
can still be accountable to the Unified Administration and, on
performance, to the Courts Board.
Justices' Clerks would, in relation to the provision
of training, be accountable to the Judicial Studies Board (JSB),
with, ultimately, their involvement in training being terminated
if they fail to meet the standards set by the JSB. The Justices'
Clerks can still be a member of the Area Senior Management Team
as, from a position of independence, there should be no compromise
to their Judicial independence. The Legal Advisers would become
civil servants but their independence would be guaranteed through
the Justices' Clerk. The only person who can direct the Legal
Advisers on law is the Justices' Clerk. Delegated powers to Legal
Advisers and other staff stem from the Justices' Clerk and can
be removed if their operation is being abused.
Being outside the civil service would not prevent
the Justices' Clerk from being the line manager of the legal team;
this could either operate by virtue of the statute or by an additional
contract term for legal staff. The Justices' Clerk could still
give legal assistance to the administration staff and the Area
Director.
The clear belief of the Justices' Clerks' Society
is that the Justices' Clerk should not be a civil servant but
should be:
— A Judicial Officer appointed by the
Judicial Appointments Committee.
— Bound by an appropriate Judicial
Officer's Oath for the office held.
— Assigned to a specific area.
— Accountable for their overall performance
with appraisal possibly through a 360º model.
This would ensure independence and establish
an important constitutional principle whilst still being engaged
with the Unified Administration, responsible for the line management
of the legal team, responsible for the training of Magistrates
and legal staff and fully accountable. It would also ensure a
more open and transparent system which would improve public confidence.
Entry into the civil service would inevitably lead to control,
compromise and lack of confidence.
April 2004
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