Government response to the Justices' Clerks'
Written Evidence to the Constitutional Reform Select Committee
INTRODUCTION
1. The role of justices' clerks is a hybrid one
in that they perform both an independent function in the advice
they provide to magistrates and an administrative one in their
management role within the magistrates' courts.
2. The provisions of the Courts Act 2003 mean
that justices' clerks will become civil servants within the unified
courts agency along with the other staff of the magistrates' courts
committees when that is established in April 2005. In that way,
they can continue to play a real part in the management of local
areas as they currently do but also ensure that their essential
independent advisory role to the lay justices is respected. A
number of justices' clerks or former justices' clerks have already
been appointed to senior management roles in the new agency where
their experience can be brought to play within rather than outside
the organisation.
THE CONSTITUTIONAL
REFORM BILL
3. The Constitutional Reform Bill provides the
transfer of existing functions in primary legislation of the office
of Lord Chancellor upon abolition of that office. These provisions
follow the agreement set out in the "Concordat" agreed
between the Secretary of State for Consitutional Affairs and the
Lord Chief Justice. The Government believes that transferring
justices' clerks into the new agency is consistent with the policy
agreed in the Concordat and given effect to in the Bill. In particular,
we would note that Parliament enacted legislation placing justices'
clerks in the Civil Service only last year (in the Courts Act
2003). We would note that justices' clerks have no formal judicial
status; they do not conduct trials or sentence offenders and they
do not take the judicial oath. They currently report to a Justices'
Chief Executive who is an administator.
4. Moreover, staff employed by the Court Service
(and who are therefore civil servants) already perform a number
of judicial functions. In particular, they list cases on behalf
of the judiciary in a similar role to that performed by the justices'
clerks in the magistrates' courts and they take judicial decisions
are officers of the court; for example, judgment orders and conducting
oral examinations.
5. The Court Service has built up a particularly
strong partnership with the judiciary where the boundaries of
judicial independence are fully understood and respected. This
relationship underpins the concordat reached with the judiciary
and the Government wants this relationship to be further improved
when the unified courts agency is established.
THE COURTS
ACT 2003
6. The independence of the advice of justices'
clerks to magistrates or when exercising a function exercisable
by a magistrate is specifically provided for by section 29 of
the Courts Act. This provides that:
"A justices' clerk exercising:
(a) a function exercisable by one or more justices of
the peace;
(b) a function specified in section 28(4) or (5) (advice
on matters of law, including procedure and practice); or
(c) a function as a member of the Criminal Procedure
Rule Committee or the Family Procedure Rule Committee;
is not subject to the direction of the Lord Chancellor
or any other person. An assistant clerk who is exercising any
such function is not subject to the direction of any person other
than a justices' clerk."
This is a clear and unambiguous statement of the
need to protect the independence of the advice of justices' clerks
to magistrates. Clause 1 of the Constitutional Reform Bill further
enhances this by placing a duty on the Secretary of State, 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.
7. Additionally, section 27(3) of the Courts
Act 2003 provides that the Lord Chancellor must assign each justices'
clerk to one or more local justice areas. Section 27(4) provides
that before changing the assignment of a justices' clerk, the
Lord Chancellor must consult the chairman of the lay justices'
assigned to those areas. Section 27(4) was introduced by way of
government amendment at Report stage in the House of Lords. The
Government did not dispute at any stage the principle that bench
chairmen should be consulted prior to any reassignment but only
questioned whether this was suitable for inclusion in primary
legislation. (10 February 2003 Hansard—column 482). It brought
forward its own amendment at Report stage in the House of Lords
to provide for this. (8 May 2003 Hansard—columns 1245-7)
FURTHER SAFEGUARDS
OF INDEPENDENCE
8. The senior judiciary has been concerned that
the independence of the advice from justices' clerks to magistrates
should be protected but the Government does not believe that this
extends to support of the proposition that justices' clerks should
not be civil servants. The Government has been working with the
senior judiciary to put in place further safeguards to protect
this independence if they are needed.
9. In particular, the senior judiciary has proposed
that an Area Judicial Forum and Justices Issues Group should be
established in each of the 42 management areas of the new agency.
These fora will provide the opportunity for justices' clerks to
raise any matters relating to their work supporting lay justices,
including issues surrounding their independence, if they arise.
The Government supports this and believes they will act as a mechanism
for dealing with issues or concerns should it be needed as they
could be taken up to the Presiding Judges, on to the Senior Presiding
Judge, and, ultimately, to the Lord Chief Justice himself.
10. The Lord Chancellor currently appoints justices'
clerks in line with his statutory functions for the magistrates'
courts. He assumed these functions in 1992 from the Home Secretary.
The Government believes that it is appropriate for the Secretary
of State to be accountable to Parliament for the administration
of the courts, and for the justices' clerks to be civil servants.
However, to reflect the Clerk's hybrid roles the Government is
proposing to bring forward an amendment to section 27(1) in the
Constitutional Reform Bill to provide that this should be in consultation
with the Lord Chief Justice. In practice this will be achieved
by including a judge or magistrate on the local selection panel
for any justices' clerk appointments. This is in line with other
appointments for the new agency where judges and magistrates have
been members of the selection panels. The Government is also prepared
to bring forward an amendment to the Bill to strengthen section
27(4) of the Courts Act 2003 by providing that a reassignment
of a justices' clerk should only take place after consultation
with the Lord Chief Justice (in practice a Presiding Judge of
the region concerned) as well as with the relevant Bench Chairmen.
EXAMPLES OF
"INAPPROPRIATE" GUIDANCE
CITED BY
THE JUSTICES'
CLERKS SOCIETY
11. The Government's comments on the examples
cited by the Justices' Clerks Society in its written evidence
are at Annex B. Governments are entitled to decide on new initiatives,
approaches, or improvements to the system. Similarly, it is entirely
right that where the judiciary considers that these initiatives
have implications, which may undermine judicial independence,
or interfere with areas of work for which responsibility is vested
in the judiciary, they should point that out. The matter can then
be considered and resolved. That is the spirit in which the DCA
(and previously the Lord Chancellor's Department) has acted in
partnership with the judiciary and, indeed, the Justices' Clerks
Society.
THE JUSTICES'
CLERKS SOCIETY
PROPOSAL
12. Section 1 of the Courts Act 2003 places accountability
to Parliament for the administration of the courts with the Lord
Chancellor. The Concordat provides (at paragraph 4(a)) that this
duty is to transfer to the Secretary of State for Constitutional
Affairs (and this is achieved in the Bill by virtue of paragraph
363 of Schedule 1, which amends section 1 of the Courts Act).
This is a clear provision and will significantly improve the current
position where accountability for administration of the magistrates'
courts rests with the 42 independent Magistrates' Courts Committees.
13. The proposal of the Justices' Clerks Society
would blur this accountability and confuse reporting arrangements.
For example, the legal advisers (who would be civil servants)
would report to justices' clerks who would not be. Moreover, the
justices' clerks could not report to Courts Boards on "performance"
as the Courts Boards will be non executive bodies and will therefore
not be acountable for the performance of the administration of
the courts.
14. Justices' clerks do not fulfil the functions
of judges so it would not be appropriate for them to appointed
by the Judicial Appointments Commission nor to take the judicial
oath.
CONCLUSION
15. The Courts Act 2003 provides that justices'
clerks will become employees of the unified courts agency along
with other employees of the magistrates' courts. The Government
believes that the provisions contained within the Courts Act 2003
protect the independent role of the justices' clerks. It is, however,
proposing to bring foward amendments to the Constitutional Reform
Bill to provide that selection of justices' clerks should be in
consultation with the Lord Chief Justice and that reassignments
of justices' clerks should take place in consultation with the
Lord Chief Justice as well as bench chairmen.
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