Memorandum by South Wales Bench Chairmen/Cadeiryddion
y Fainc De Cymru
UNIFIED ADMINISTRATION AND THE ROLE OF THE
JUSTICES' CLERK
The South Wales' Magistrates' Courts Bench Chairmen's
Forum, comprising the Chairmen of the eight Benches in the Area,
write to express their extreme concerns over the prospect of Justices'
Clerks being civil servants answerable to the Executive under
the constitutional reforms within the Courts Act 2003.
The key principle behind the abolition of the office
of Lord Chancellor enshrined in the Act is the need to separate
Executive and Judicial powers within our Constitutional arrangements.
Whilst the "concordat" between the Lord Chief Justice
and the Lord Chancellor safeguards independence for the professional
Judiciary it is imperative that appropriate arrangements are made
for Justices' Clerks in order to safeguard Judicial independence
in the Magistrates' Courts.
It is an oft-quoted statistic that Magistrates' Courts
deal with 97 per cent of criminal cases. They also deal with a
significant volume of Family Proceedings and Civil work.
It is accepted that Justices' Clerks will have a
predominantly legal role under Unified Administration. Justices'
Clerks exercise Judicial Powers under the Justices' Clerks' Rules
and they are responsible for delegating those powers appropriately
to legal and administrative staff.
Justices' Clerks are responsible for the legal advice
provided in their name to Lay Justices and District Judges (Magistrates'
Courts). As Lay Justices we must have complete confidence that
that the advice being provided to us is (and is perceived to be)
independent.
In South Wales we have been fortunate in being able
to retain five high quality Justices' Clerks who combine legal
expertise with administrative leadership. The Justices' Clerks
have a proven track record in achieving and surpassing National
Performance Targets and we take a collective pride in the achievements.
We have had confidence in the advice provided to us knowing that
our Justices' Clerks have been answerable for their performance
to a Justices' Chief Executive who is a lawyer and a former Justices'
Clerk with sensitivities to the Administrative/Judicial divide.
Ultimately the Justices' Clerks have been accountable
to the Magistrates' Courts Committee whose members are predominantly
Justices of the Peace with similar sensitivities to the need to
maintain the independence of the Courts.
The prospect of Justices' Clerks being Civil Servants
answerable to a politician (the Secretary of State for Constitutional
Affairs) and/or a possibly non-legally qualified Area/Regional
Director raises serious and genuine concerns about the independence
of the Justices' Clerk in the future.
As Government strives for greater efficiency, effectiveness
and consistency in the delivery of public services, objectives
which we share, there are increasingly demanding performance targets
set and directives given that run the risk of encroaching on Judicial
independence. Examples include; Street Crime Initiative, Narrowing
the Justice Gap, Non School Attendance, Operation Payback, pronouncements
on the use of custody and the size of the prison population.
If it is perceived that Justices' Clerks are at risk
of discipline, removal or career demotion as a result of providing
advice that may differ from the Executive directive. or be counter
to an Executive performance target, the confidence of lay Justices,
professional practitioners and the public at large in the Criminal
Justice System is at risk of being fundamentally undermined.
Whilst "consistency" is a laudable aim
in many areas it should not be imposed by executive directive
on issues of legal interpretation. Justices' Clerks must be free
to interpret legislation and case law in accordance with their
own professional judgement and conscience. The purpose of the
Higher Courts is to provide rulings and guidance on legitimate
differences of legal opinion.
Section 29 of the Courts Act 2003 seeks to protect
Justices' Clerks from interference in the legal advice which they,
or their Assistant Clerks, provide. This does not go far enough.
Arrangements must ensure that the appointment, training, relocation,
and removal of Justices' Clerks are outside of Executive control.
We must also have confidence that the training provided to us
by our Clerks is free from executive direction.
This principle has been maintained consistently by
the Justices' Clerks Society and was supported at the JCS Annual
Conference in May by Lord Justice Igor Judge. It has been supported
by Lord Justice Thomas and by the National Magistrates' Association.
In a speech to the Inner London Magistrates' Association on 18
May 2004 Lord Woolf, Lord Chief Justice for England and Wales
stated "we must ensure that Justices' Clerks cannot be put
under undue pressure to comply with directions that conflict with
their independence as judicial officers. I am involved in discussions
on this issue and am paying particular attention to arrangements
for the appointment, relocation and removal of Justices' Clerks".
Our Justices' Clerks are not seeking to be unaccountable.
They are accountable for the legal advice they give to the Superior
Courts and they are content to be accountable for their administrative
performance to an Area Director. They accept that they are accountable
for the performance of their legal advisers and for the quality
of the advice that they provide.
As Bench Chairmen, we ask that our Justices' Clerks
be appointed as "Judicial Officers" with their promotion,
discipline, training and removal being under Judicial lines rather
than through the Unified Administration. Whether or not they are
deemed to be "civil servants" this protection from real
or perceived interference is of crucial Constitutional significance.
It is essential that important Constitutional changes protect
individuals and the system from what could happen in the future
even if reassurances can be given that powers are not likely to
be abused in this way.
24 May 2004
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