Funding

128. Clause 29: Conditional fee agreements. This clause replaces the existing section 58 of the Courts and Legal Services Act 1990 with two new sections: section 58 and 58A. The provisions of the new section 58 seek to take into statute law the decisions in the Thai Trading and Bevan Ashford cases described in paragraph 47 above. It does this by making all agreements to work for less than normal fees subject to the provisions of the new sections. It goes on to draw a distinction between agreements which do, and do not, provide for enhanced fees and to make particular provisions in respect of agreements which include provision for enhanced fees. It also allows the Lord Chancellor to prescribe different requirements for the two categories of agreement.

129. The new section 58A seeks to make recoverable any enhancement to the lawyer's fees payable to the lawyer under a conditional fee from the losing party. Paragraph 32 above sets out the reasons for this change.

130. Clause 30: Recovery of insurance premiums by way of costs. This clause makes provision to allow the court to include in any costs it may award against the losing party, any premium paid for an insurance policy taken out specifically against the need to meet legal costs in those proceedings. It is not limited to insurance policies taken out alongside a conditional fee agreement.

B. RIGHTS OF AUDIENCE etc. (Clauses 31-39)

131. Clauses 31-39, with schedules 5 and 6, reform the law relating to lawyers' rights of audience and rights to conduct litigation (and to the work of notaries in London). They:

• abolish the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) and create a new body, the Legal Services Consultative Panel, which will take over ACLEC's functions in advising the Lord Chancellor on changes to authorised bodies' rules and the designation of new authorised bodies and on legal education;

• simplify procedures for approving changes to rules and the designation of new authorised bodies;

• give the Lord Chancellor power, with the approval of Parliament, to change rules which do not meet the statutory criteria set out in the Courts and Legal Services Act 1990 as amended by these clauses;

• establish the principle that all barristers and solicitors should enjoy full rights of audience; and

• establish the primacy of an advocate's ethical duties over any other civil law obligations.

133. The background to these proposals is set out in a consultation paper issued by the Lord Chancellor's Department in June 1998 - Rights of Audience and Rights to Conduct Litigation in England and Wales: The Way Ahead.

134. Rights to appear as an advocate in court (rights of audience) and rights to do the work involved in preparing cases for court (rights to conduct litigation) are governed by the Courts and Legal Services Act 1990. The 1990 Act leaves it to 'authorised bodies' (currently the Bar Council, the Law Society and the Institute of Legal Executives) to set the rules which govern the rights of their members, subject to a statutory approval process in which new or altered rules must be submitted for the approval of the Lord Chancellor and the four 'designated judges' (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor). Before making their decisions the Lord Chancellor and designated judges receive and consider the advice of the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) and of the Director General of Fair Trading. Applications for the designation of new authorised bodies are subject to a similar procedure, but the designation of the new body is made by Order in Council subject to approval by both Houses.

135. The Government believes that the existing approval procedures are convoluted and slow, and that rights of audience are currently too restrictive. Some applications for approvals have taken several years to be processed, in part due to the need for applications to meet the approval of several parties. Rights of audience in the higher courts (the House of Lords, Court of Appeal, High Court and Crown Court) remain restricted to barristers and a small number of solicitors in private practice.

136. The Bill simplifies and expedites the approval procedure. ACLEC will be replaced by a smaller and less expensive committee, the Legal Services Consultative Panel. The functions of the new Panel will not be prescribed in detail in statute, and its composition will be left to the Lord Chancellor to determine, although, in appointing members, he will be required to have regard to specified criteria setting out appropriate knowledge and experience. This will enable the Panel to develop flexibly, in response to the matters on which the Lord Chancellor requires expert independent advice, and will leave the Lord Chancellor free to appoint the best candidates to the Panel. The Bill will also give the Lord Chancellor a new power to call in and if necessary replace professional rules affecting rights of audience or rights to conduct litigation, which he considers unduly restrict the exercise of those rights. The exercise of this power will be subject to Parliamentary approval.

137. The Bill will make the Bar Council and the Institute of Legal Executives authorised bodies for the purpose of granting rights to conduct litigation to their members. At present the Law Society is the only body able to grant these rights; so currently only solicitors are able to conduct litigation. It will also put into statutory form the principle that an advocate's or litigator's first duties are to the court to act with independence in the interests of justice, and to his profession's ethical standards and that these duties cannot be overridden by any other civil law obligations, such as a contract of employment.

138. The Bill abolishes a statutory monopoly held by the Worshipful Company of Scriveners (one of the City of London's livery companies) over the provision of notarial services in the City of London and the surrounding three miles.

COMMENTARY

The Legal Services Consultative Panel

139. Clause 31: Replacement of ACLEC by Consultative Panel. This clause abolishes the Lord Chancellor's Advisory Committee on Legal Education and Conduct, and replaces it with a new Legal Services Consultative Panel.

140. The Lord Chancellor's Advisory Committee (ACLEC) was created by section 19 of the Courts and Legal Services Act 1990. ACLEC's replacement, the Legal Services Consultative Panel will differ from ACLEC in a number of ways but will continue to fulfil much of ACLEC's role. The Act makes no provision for the number of the Panel's membership, which will be appointed by the Lord Chancellor. The Lord Chancellor will be required to have regard to criteria setting out appropriate knowledge and experience among the Panel's membership (specified in new section 18A(2) of the 1990 Act as inserted by this clause).

141. The Panel's general duty will be to provide the Lord Chancellor with any advice he requires about legal services, legal education and related matters. It will have an active role in assisting in the maintenance and development of standards in the education, training and conduct of persons offering legal services. The Panel will be required to draw up its own programme of work on these topics, to be agreed with the Lord Chancellor, and will be able to make recommendations on particular issues when appropriate. The Panel will also carry out a significant role in the system of statutory approvals set out in Schedule 5 (see below), which inserts a new Schedule 4 into the 1990 Act.

142. This clause also provides that the Panel cannot be sued for defamation in respect of any advice it publishes. This is to ensure that the Panel is able to give frank advice to the Lord Chancellor, and that it need not hesitate to point out, for example, if a body applying for authorised status under the 1990 Act is corrupt or incompetently run, and therefore unsuitable to be designated an authorised body.

Rights of audience and rights to conduct litigation

143. Clause 32: Barristers and solicitors. This clause provides that every barrister and every solicitor has a right of audience before every court in relation to all proceedings. These general rights were not present for solicitors in the 1990 Act. The clause also restates the current position, that all solicitors have rights to conduct litigation before all courts. These rights are not unconditional; in order to exercise them, solicitors and barristers must obey the rules of conduct of the professional bodies and must have met any training requirements that may be prescribed (such as the requirement to complete pupillage in the case of the Bar, or to have obtained a higher courts advocacy qualification in the case of solicitors who wish to appear in the higher courts).

144. Clause 33: Employees of Legal Services Commission. This clause provides that advocates and litigators employed by the Legal Services Commission can provide their services to members of the public. Without this clause, they might be prevented from doing so by professional rules. Paragraph 101 above explained that the Government intends to seek amendments in the House of Commons to allow the Commission to provide criminal defence services through its own employees.

145. Clause 34: Rights of audience: change of authorised body. This clause provides that an advocate who has been granted and was entitled to exercise a right of audience by one authorised body, such as the Bar Council, should retain that right if he becomes a member of a different authorised body, such as the Law Society.

146. Clause 35: Rights to conduct litigation: barristers and legal executives. This clause gives the General Council of the Bar and the Institute of Legal Executives the power to grant their members rights to conduct litigation. There will be no requirement to grant such rights and it would be a matter for the authorised bodies to propose, subject to approval under the provisions contained in Schedule 5, whether and in what form such rights might be granted.

Clause 36/Schedule 5: Authorised bodies: designation and regulations and rules

147. Schedule 5, which is introduced by clause 36, amends the current procedures by which the Lord Chancellor may:

• authorise bodies to grant rights of audience and rights to conduct litigation;

• approve applications by such authorised bodies to alter their qualification regulations or conduct rules;

• revoke any authorisation of a body to grant rights of audience or rights to conduct litigation.

148. The current procedures are simplified by the schedule, which gives the Lord Chancellor a new power to alter the qualification regulations or rules of conduct of such an authorised body by order. The provisions of Schedule 5 replace provisions currently contained in sections 29 and 30 of, and Schedule 4 to, the 1990 Act.

149. The existing procedures for approving applications by bodies for authority to grant rights of audience and rights to conduct litigation, and for approving applications by such authorised bodies to alter their qualification regulations or conduct rules, are complex. They require an applicant body first to submit its application to the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC) for preliminary advice. Thereafter it must be submitted to the Lord Chancellor, who must consult the 'designated judges' (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor), ACLEC (for formal advice) and the Director-General of Fair Trading, before it can be approved. The Lord Chancellor and each of the designated judges must approve the application before it can succeed.

150. The new procedures do not contain the existing requirement for each of the designated judges to approve an application before it can succeed, although the Lord Chancellor must seek, and have regard to, their advice. An applicant body will first submit its application to the Lord Chancellor. In the case of an application to become an authorised body, the Lord Chancellor must consult the Legal Services Consultative Panel (ACLEC's replacement body, established by clause 31), the Director-General of Fair Trading (DGFT), and the designated judges. In the case of an application to amend an authorised body's regulations or rules, the Lord Chancellor will decide whether he needs to consult the Panel and/or the DGFT, but he will be required to consult the designated judges. He may not refuse an application without having consulted the Panel. As now, new authorised bodies will be designated by Order in Council, subject to Parliamentary approval by the affirmative resolution procedure.

151. The Lord Chancellor currently has power to revoke a body's authorisation, but this has never been used. This power only applies to those bodies designated by Order in Council (currently only the Institute of Legal Executives). At present, if the Lord Chancellor believes there are grounds for revoking authorisation, he must seek ACLEC's advice. ACLEC also has power to advise the Lord Chancellor to revoke authorisation of their own initiative. The Lord Chancellor must then consult the designated judges, each of whom must approve any proposed revocation.

152. The Bill amends the revocation procedure to remove the requirement for each of the designated judges to approve any proposed revocation before an Order can be made, and to refer to the Panel rather than ACLEC. The Lord Chancellor will also be required to obtain the advice of the DGFT. An Order in Council revoking a body's authorisation will continue to be subject to Parliamentary approval by affirmative resolution.

153. The Schedule will confer on the Lord Chancellor a new power to amend the qualification regulations or rules of conduct of an authorised body by order, if he considers that they place unreasonable restrictions on rights of audience or rights to conduct litigation, or the exercise of those rights. He will be required to consult the Panel, the DGFT and the designated judges before doing so; and his order will be subject to Parliamentary approval by the affirmative resolution procedure.

154. Clause 37: Overriding duties of advocates and litigators. This clause gives statutory force to the existing professional rules which make it clear that the overriding duties of advocates and litigators are their duty to the Court to act with independence in the interests of justice; and their duty to comply with their professional bodies' rules of conduct. Those duties override any other civil law obligation which a person may be under, including the duty to the client or a contractual obligation to an employer or to anyone else. A barrister, solicitor or other authorised advocate or authorised litigator must refuse to do anything required, either by a client or by an employer, that is not in the interests of justice (eg. suppress evidence). The purpose of this clause is to protect the independence of all advocates and litigators.

155. Clause 38 and Schedule 6 make minor and consequential amendments. Paragraphs 1 to 3 of the Schedule provide that where an alteration to the Law Society's rules has been approved by the Lord Chancellor under the new procedure which will be inserted into the Courts and Legal Services Act 1990, the alteration concerned needs no further approval under the Solicitors Act 1974. Paragraph 5 gives the Lord Chancellor a new power to impose reasonable time limits on the giving of advice under the 1990 Act; this is in order to avoid the delays which have affected some applications for the approval of rule alterations under the current procedure. The schedule makes several amendments which are intended to improve and clarify the drafting of the 1990 Act, in particular it redefines 'right of audience' and 'right to conduct litigation' in order to reflect the fact that it is possible to have a right in principle which cannot be exercised in practice.

156. Clause 39: Public notaries: abolition of scriveners' monopoly. This clause ends the statutory monopoly held by the Incorporated Company of Scriveners of London over notarial work in the central London area. This monopoly was placed on a statutory basis by section 13 of the Public Notaries Act 1801, and confirmed by section 6 of the Public Notaries Act 1843 and section 57 of the Courts and Legal Services Act 1990. Clause 39 provides that a notary may practise in the City of London or within three miles of its boundaries, whether or not he is a member of the Scriveners' Company.

*Notaries authenticate certain legal documents, mainly for use abroad, by signing and sealing them. They also prepare legal documents for use abroad, undertake conveyancing and probate work, translate foreign legal documents, administer oaths and take affidavits.

157. Part III of Schedule 11 makes transitional provisions. It enables the Lord Chancellor by order to make provisions in connection with the abolition of ACLEC. It provides that the existing rules and regulations of the Bar Council and the Law Society are deemed to have been approved, and that all existing barristers and solicitors are deemed to have been granted full rights of audience before all courts on their call or admission to the profession. It preserves the effect of section 83 of the Supreme Court Act 1981, which enables solicitors who have not obtained the Law Society's higher courts qualifications to exercise certain rights of audience before the Crown Court when it sits in areas specified in directions by the Lord Chancellor. It provides that Orders in Council designating other authorised bodies (for example, the Institute of Legal Executives), and any alterations made in the rules of such bodies which have been approved under the current provisions of the Courts and Legal Services Act 1990 will continue to have effect once those provisions have been replaced.

C. APPEALS, COURT PROCEDURE & JUDGES (Part IV - clauses 40-54)

SUMMARY

158. This part contains provisions to reform the system of appeals in civil and family cases; to change the arrangements for certain hearings in the High Court; to provide for a Vice-President of the Queen's Bench Division; to prohibit the publication of information likely to identify a child who is subject to proceedings under the Children Act 1989 in the High Court or a county court; and to allow under 14s to attend adult criminal trials.

159. In relation to civil appeals, the Bill will:

• provide for permission to appeal to be obtained at all levels in the system.

• provide that in normal circumstances there will be only one level of appeal to the courts.

• introduce an order making power to enable the Lord Chancellor to vary appeal routes in secondary legislation, with a view to ensuring that appeals generally go to the lowest appropriate level of judge.

• ensure that cases which merit the consideration of the Court of Appeal reach that court.

• give the Civil Division of the Court of Appeal flexibility to exercise its jurisdiction in courts of one, two or more judges.

160. Together, these proposals are intended to ensure that appeals are heard at the right level, and dealt with in a way which is proportionate to their weight and complexity; that the appeals system can adapt quickly to other developments in the civil justice system; and that existing resources are used efficiently, enabling the Court of Appeal (Civil Division) to tackle its workload more expeditiously.

161. The provisions relating to the High Court will:

• allow judicial review applications, appeals by way of case stated and applications for habeas corpus which are related to criminal matters, together with appeals from inferior courts and tribunals in contempt of court cases, to be routinely heard by a single judge in the High Court, rather than, as at present, by a Divisional Court of two or more judges.

• place on a statutory footing the powers of the High Court to deal with appeals by way of case stated coming from the Crown Court.

BACKGROUND

162. In his 1994-95 Annual Report on the Court of Appeal, the then Master of the Rolls, Lord Bingham, stated that: 'the delay in hearing certain categories of appeal in the Civil Division of the Court of Appeal has reached a level which is inconsistent with the due administration of justice'.

163. In his report Access to Justice (July 1996), Lord Woolf set out his proposals for the reform of the civil justice system. At the heart of his proposals was the allocation of civil cases to "tracks", which would determine the degree of judicial case management. Broadly speaking, cases would be allocated to the small claims track, the fast track or to the multi-track, depending upon the value and complexity of the claim. The principle that underlies this system of tracks is the need to ensure that resources devoted to managing and hearing a case are proportional to the weight and substance of that case. In order that the benefits arising from these reforms should not be weakened on appeal, Lord Woolf recommended that an effective system of appeals should be based on similar principles.

164. In 1996, Sir Jeffery Bowman chaired a Review of the Civil Division of the Court of Appeal (Review of the Court of Appeal (Civil Division) - Report to the Lord Chancellor, September 1997). 165. He identified a number of problems besetting the Court of Appeal. In particular, he noted that the Court was being asked to consider numerous appeals which were not of sufficient weight or complexity for two or three of the country's most senior judges, and which had sometimes already been through one or more levels of appeal. Additionally, he concluded that existing provisions concerning the constitution of the Court were too inflexible to deal appropriately with its workload. To redress this situation Sir Jeffery Bowman's report included recommendations to alter the jurisdiction and constitution of the Court of Appeal. The Lord Chancellor has consulted on proposals to effect certain of these changes (Reform of the Court of Appeal (Civil Division): Proposals for change to Constitution and Jurisdiction, Lord Chancellor's Department, July 1998).

166. Due to the complex nature of routes of appeal in family matters, Sir Jeffery Bowman's report recommended that a specialist committee should examine this area with a view to rationalising the arrangements for appeals in family cases and bringing them in line with the underlying principles for civil appeals. The Family Appeal Review Group, chaired by Lord Justice Thorpe, published recommendations in July 1998 aimed at simplifying the current appeals procedure in family cases, applying the principles outlined in Sir Jeffery Bowman's report.

167. The provisions enabling certain matters to be heard by a single High Court judge have the same objective of ensuring that the most appropriate use is made of judicial resources.

168. The provision about the High Court's powers to deal with appeals by way of case stated from the Crown Court follows a recommendation by the Law Commission in its 1994 Report Administrative Law: Judicial Review and Statutory Appeals.

COMMENTARY

Right to appeal

169. Clause 40: Permission to appeal. This clause provides for rights of appeal to be exercised only with the permission of the court, as prescribed by rules of court. At present, permission is required for most cases going to the Civil Division of the Court of Appeal, but not elsewhere. For the future, it is proposed that, with three exceptions, rules will require permission to appeal to be obtained in all appeals to the county courts, High Court or Civil Division of the Court of Appeal. The exceptions are appeals against committal to prison, appeals against a refusal to grant habeas corpus, and appeals against the making of secure accommodation orders under section 25 of the Children Act 1989. There will be no appeal against a decision of the court to give or refuse permission, but this does not affect any right under rules of court to make a further application for permission to the same or another court.

* A secure accommodation order under section 25 of the Children Act 1989 enables local authorities, in restricted circumstances, to place children in care into accommodation which is specifically designed to restrict their liberty.

170. Clause 41: Second appeals. This clause provides that, where the county court or High Court has already reached a decision in a case brought on appeal, there will be no further possibility of an appeal of that decision to the Court of Appeal, unless the Court of Appeal considers that the appeal would raise an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.

Destination of appeals

171. Clause 42: Power to prescribe alternative destination. This clause enables the Lord Chancellor to vary, by order, the routes of appeal for appeals to and within the county courts, the High Court, and the Civil Division of the Court of Appeal. Before making an order, the Lord Chancellor will be required to consult the Heads of Division, and any order will be subject to the affirmative resolution procedure. The present intention is that the following appeal routes will be specified by order:

• in fast track cases heard by a district judge, appeals will be to a Circuit judge;

• in fast track cases heard by a Circuit judge, appeals will be to a High Court judge;

• in multi-track cases, appeals of interlocutory decisions made at first instance by a district judge will be to a Circuit judge, by a master or Circuit judge to a High Court judge, and by a High Court judge to the Court of Appeal; and

• in multi-track cases, appeals of final orders regardless of the court of first instance, will be to the Court of Appeal.

• The Heads of Division are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, and the Vice-Chancellor.

• A decision is interlocutory where it does not determine the final outcome of the case.

173. Clause 43: Assignment of appeals to Court of Appeal. This clause provides for the Master of the Rolls, or a lower court, to direct that an appeal that would normally be heard by a lower court be heard instead by the Court of Appeal. This power would be used where the appeal raises an important point of principle or practice, or is a case which for some other compelling reason should be considered by the Court of Appeal.

174. Clause 44 - Appeals against orders to serve remainder of sentence. This clause will give a right of appeal to the Crown Court against a magistrates' court's order returning someone to prison to serve the remainder of a sentence from which he or she has been released under Part II of the Criminal Justice Act 1991. It will give a similar right in respect of Crown Court orders made under the same legislation, where the sentence in respect of which the court is returning the offender to prison was imposed by a magistrates' court. The right of appeal from the Crown Court's order would be to the Court of Appeal.

Civil Division of Court of Appeal

175. Clause 45: Composition. This clause makes flexible provision for the number of judges of which a court must be constituted in order for the Court of Appeal to be able to hear appeals. Currently, section 54 of the Supreme Court Act 1981 provides that the Court of Appeal is constituted to exercise any of its jurisdiction if it consists of an uneven number of judges not less than three. In limited circumstances it provides that a court can be properly constituted with two judges. This clause allows the Master of the Rolls, with the concurrence of the Lord Chancellor, to give directions about the minimum number of judges of which a court must consist for given types of proceedings. Subject to any directions, the clause also allows the Master of the Rolls, or a Lord Justice of Appeal designated by him for the purpose, to determine the number of judges who will sit to hear any particular appeal.

176. Clause 46: Calling into question of incidental decisions. This clause provides that decisions made by a single judge (or any officer or member of staff) of the Court of Appeal in proceedings incidental to any cause or matter may be called into question as prescribed by Rules of Court. No appeal shall lie to the House of Lords from a decision which may be called into question. This clause replicates the effect of section 58(2) of the Supreme Court Act 1981.

* Under paragraph 2 of Schedule 1 to the Civil Procedure Act 1997, it is possible for rules of court to devolve some minor judicial functions to officers or other staff of the court.

177. Clause 47: Registrar of Civil Appeals. This clause abolishes the post of Registrar of Civil Appeals. The Registrar of Civil Appeals is a judicial officer provided for by section 89 of, and Part II of Schedule 2 to, the Supreme Court Act 1981. The post has both judicial and administrative functions. The administrative functions have now been taken over by a new Head of the Civil Appeals Office.

Jurisdiction of single judge of High Court

178. Clause 48 - 50: Criminal causes and matters; contempt of court; habeas corpus. These clauses would allow certain applications to be routinely heard by a single judge of the High Court. They do this by removing an obstacle that exists in the current legislation by which the route of appeal for these cases is to the House of Lords, but the Administration of Justice Act 1960 provides that the House of Lords will only hear appeals in these matters from a Divisional Court of the High Court. The clauses amend the 1960 Act, so that the House of Lords can hear appeals from a single High Court judge. It will then be possible to make rules of court to provide for these cases to be heard by a single judge, while enabling the judge to refer particularly complex cases to a Divisional Court.

179. The cases in question are:

• judicial reviews and appeals by way of case stated in criminal causes and matters (clause 48).

• appeals from inferior (civil and criminal) courts and tribunals in contempt of court cases (clause 49).

• criminal applications for habeas corpus (clause 50).
  • A Divisional Court is composed of two or more High Court judges.

  • Appeal by way of case stated is a form of appeal where the outcome of proceedings is questioned on the basis that it was wrong in law or outside the jurisdiction of the court. The person questioning the outcome of the proceedings applies to the court to state a case in writing for the opinion of the High Court.

Miscellaneous

180. Clause 51: Cases stated in Crown Court for opinion of High Court. The Supreme Court Act 1981 gives the High Court specific powers of disposal over appeals by way of case stated coming from a magistrates' court. However it does not do the same for cases coming from the Crown Court. This clause provides a statutory footing for the powers of the High Court to deal with appeals by way of case stated coming from the Crown Court.

181. Clause 52: Vice-president of the Queen's Bench Division. This clause puts on a statutory footing the existing practice of the Lord Chancellor appointing, at the request of the Lord Chief Justice, a senior member of the Court of Appeal to assist the Lord Chief Justice in his administrative duties as president of the Queen's Bench Division of the High Court.

182. Clause 53: Reporting of proceedings about children. This clause prohibits the publication of information identifying a child who is (or has been) the subject of court proceedings under or related to the Children Act 1989, in the High Court or a county court. This will unify the law on reporting of Children Act proceedings at all levels of court, by extending the existing prohibition which applies only to magistrates' courts.

183. Clause 54 - Power to allow children to attend criminal proceedings. This clause permits children under 14 to attend criminal trials in England and Wales, with the consent of the court. It makes a comparable change for Scotland. Section 36 of the Children and Young Persons Act 1933 prohibits children (that is, young people under the age of 14) from attending criminal trials unless they are a defendant, a witness, an infant in arms, or their presence is required for the purposes of justice.

D. MAGISTRATES (Part V - clauses 55-75)

SUMMARY

184. This part contains provisions to reform the organisation and management of the magistrates' court service; to unify the stipendiary bench; and to extend and clarify the powers of civilians to execute warrants.

185. The Government's objective is to develop a magistrates' court service which is effectively and efficiently managed, at a local level by local people, within a consistent national framework. The Government announced its plans for developing this new framework in statements to both Houses of Parliament on 29 October 1997 (Hansard: House of Lords col. 1057 - 1067; House of Commons col. 901 - 914). As part of this programme of reform, the Bill includes provisions to:

• reform the organisation and management of the magistrates' courts by:
  • creating more flexible powers to alter the various territorial units that make up the magistrates' court service, and to allow summary cases to be heard outside the commission area in which they arose;

  • expanding the potential membership of magistrates' courts committees by removing the limit on co-opted members;

  • establishing a single authority to manage the magistrates' courts service in London;

  • removing the requirement for justices' chief executives to be qualified lawyers, and transferring responsibility for certain administrative functions from justices' clerks to justices' chief executives; and

  • giving the Lord Chancellor power to require all MCCs to procure common goods and services, where he considers this will lead to more effective or efficient administration.

• unify the Provincial and Metropolitan stipendiary benches into a single bench of District Judges (Magistrates' Courts), able to sit in any magistrates' court in the country.

• remove the requirement for lay magistrates to sit as judges in the Crown Court on committals for sentence.

• extend and clarify the powers of civilians to execute warrants.