TUESDAY 25 MAY 2004

Mr Rachel Lipscomb, Mrs Sally Dickinson and Mr Neil Clarke

  Q1160  Lord Falconer of Thoroton: And would be I be right in saying the Magistrates' Association, reflecting the views of its members, has always been keen that the magistrates should be recognised as being part, and indeed an important part, of the judicial family?

  Mrs Lipscomb: Yes, I think what concerns us is that it is not apparent on the face of the Bill.

  Q1161  Lord Falconer of Thoroton: I accept all that and we will need to see whether we can improve it in relation to that. One aspect of that is the more the magistrates are perceived to be part of the judicial family the more the importance of magisterial independence is recognised as well because you are a judge like all the other judges.

  Mrs Lipscomb: Yes, I think that being recognised as part of the judiciary does offer a strengthening of judicial independence but it is important that the whole of the judiciary on the question of judicial independence, and with the judiciary that would include the justices' clerks, is quite clear and is robust.

  Q1162  Lord Falconer of Thoroton: As far as the justices' clerks are concerned, they have a very important role in relation to the running of individual magistrates' courts?

  Mrs Lipscomb: Yes.

  Q1163  Lord Falconer of Thoroton: To you Neil, before 2003, before the Courts Act, you would be engaged by the Magistrates' Courts Committee?

  Mr Clarke: Yes, that is correct.

  Q1164  Lord Falconer of Thoroton: They were your employers?

  Mr Clarke: Yes, that is right.

  Q1165  Lord Falconer of Thoroton: The change that occurred, which you personally but also your Association drew strong attention to, is the change that is occurring because there will in future be a unified administration and the employer has become in effect the Courts Service?

  Mr Clarke: I think that is part of it. What I am saying about the Constitutional Reform Bill is that was an element which, whilst we were not happy with that, was the will of Parliament but now the situation is changing in that with the abolition of the office of Lord Chancellor that function has to be transferred somewhere and what we are saying is that the transfer of that function should be to the Judicial Appointments Commission rather than to the Secretary of State for Constitutional Affairs.

  Q1166  Lord Falconer of Thoroton: I understand. The effect of the change was in fact to take away—it is not the Lord Chancellor who appoints justices' clerks but you are subject to all of the appointments' procedures in relation to the Civil Service, are you not; politicians do not appoint civil servants?

  Mr Clarke: As I understand the situation at present, I have to have the approval of the Lord Chancellor before the appointment can be confirmed.

  Q1167  Lord Falconer of Thoroton: I am not appointing, so far as I am aware, justices' clerks because I am not allowed to appoint civil servants, quite rightly because I am a politician, but I understood your point not to be quite that but that it was because you are part of the Civil Service you are susceptible to, as it were, Civil Service procedures.

  Mr Clarke: If we become part of the Civil Service, which my society is hopeful we will not and that we will retain independence, what we are saying is by being part of the Civil Service we will inevitably be subject to more pressures than we are receiving already, and that if we are part of the formal Civil Service our career structures are wider than presently with the magistrates' courts and therefore if you are looking to move around government as part of your career progression what you are looking for often is the support of your higher managers for your effectiveness. Our concern is with the definition of effectiveness that will be used when those matters are being considered.

  Q1168  Lord Falconer of Thoroton: I think there are two separate issues. One is how you move around in the context of a unified administration, and a justices' clerk might wish to move from one court to another, so what would you propose as a way of changing the situation?

  Mr Clarke: As proposed at the moment, as I say, it would be that we would be employees of the unified administration and the administration decides where we are located having consulted with the bench chairmen. What we are saying is at the present time we are postholders and as such our appointment and removal is subject to certain sanctions. The Courts Committee cannot remove us without the appeal being available to the Lord Chancellor against that decision. Here although there could be consultation, consultation does not require agreement, consultation merely requires enquiry of, and even if there is opposition to that movement there is the possibility of transfer. What I am saying is if this post that we hold has judicial power, which it does, and is the judicial adviser to a bench, then the "palatableness" of that advice could cause somebody to wish to move that person (in a perverse way admittedly but what we have to do is legislate for the good and the bad I would say) and if this duty was placed on the Judicial Appointments Commission that difficulty could not arise because it would need the consent of the Commission for that removal to take place and the consultation from the bench would be from the Commission rather than from the Secretary of State.

  Q1169  Lord Falconer of Thoroton: As you know, what we are proposing is to amend the Bill to ensure that before any appointment is made there will be consultation with the Lord Chief Justice and the relevant bench chairman.

  Mr Clarke: I am aware that that is an amendment that is being proposed. I have had a copy of that proposal from the Lord Chief Justice. What I am saying is once in post if you are not taking the movement line, which is one element of it, there will be over a period of time, I think, a culture of compliance rather than challenge if you are part of the Civil Service and part of an organisation rather than having an independent and declaredly independent role. Lord Justice Judge speaking at our conference was saying that the independence of any member of the judiciary including the justices' clerks is not the right of the postholder but is the right of community, and that is really what we are saying. If you are looking at the community they would want there to be independent legal advisers, clearly and overtly so, and we feel that because of what is happening at the present time being an indicator of the likely future situation that cannot be demonstrated save by making that process clearly independent and having a separate appointments body and an independent justices' clerk system. We are not seeking to be members of the judiciary, we are not seeking any greater powers and we are not trying to avoid accountability; we are happy to be accountable, as any member of the judiciary is, for the judicial decisions we undertake through the normal process and we are happy to be accountable for an administrative functions we take either on the 360-degree model or whatever is proposed. What we have to have is independence so that for ourselves and for the public it can be seen that we are totally separate from government and therefore the advice the magistrates are getting is pure and clean with no possibility of tarnish attached to it.

  Q1170  Lord Falconer of Thoroton: Your job is very important: you give advice to magistrates; you perform the administrative functions as assigned to you; and you make judicial decisions. Give us some examples of the sort of judicial decisions you are making?

  Mr Clarke: At the moment we have 44 judicial powers. One is the determination of whether a summons should be issued. We commit people to the Crown Court for trial. We consider the extension of bail. We can give directions in criminal—

  Q1171  Lord Falconer of Thoroton: Can you refuse bail?

  Mr Clarke: No, what we cannot do is trespass in the three major criminal areas which is the right to liberty, the determination of guilt and innocence, and the determination of sentence, but what we do do is get involved in criminal directions, the listing, the time-tabling, et cetera. In the family court we have been operating in that jurisdiction on directions since   1990. Judge Cryan said at the Unified Administration Committee that in respect of the time-tabling and listing functions we carry out in the family court we are no different from the judges sitting in the family courts.

  Q1172  Lord Falconer of Thoroton: In the listing and?

  Mr Clarke: Listing, time-tabling and directions, because if you want to say to a judge that listing is not judicial I wish you well in that, in that they get quite firm that they see it as a judicial function. Of course, we uniquely through our powers have access to the retiring room where nobody else would. As justices' clerks we can go and advise any magistrate at any point in time on any point of law.

  Q1173  Lord Carter: You are explaining the problem very well but you are not providing a solution. It seems to me that the problem is in two parts, one is the transfer system and the other is what we might call undue or improper influence. I think that you are proposing to look after the first leg of the problem by reference to the JAC rather than a minister, but I am not sure you have given us any example of the way that the Bill could be changed to meet the concerns that you are expressing on the second leg which is undue or improper influence.

  Mr Clarke: I think if I could come up with that I would bottle it and sell it very well. What we are saying is that for there to be the hope of a cure to the problem, there has to be a firm foundation and the firm foundation is the Judicial Appointments Commission. The law as it stands does not have an answer to this because it is happening now. What we have is our independence whereby we can stand on our dignity and say to everybody, "I am sorry, that is not what we are going to do". My fear is that by going down the line of the Bill we would be in a situation where we could no longer say it, or we would be saying it in such a weak voice as not to be heard, as I almost was at the beginning of my evidence.

  Q1174  Lord Carter: Is there any way in which you can see that the Bill could be amended to meet those concerns?

  Mr Clarke: The Bill can only strengthen the independence by the appointment. It would then be for practice, the judiciary itself and our robust nature, and the fact that we will be able to bring to the attention of ministers and Parliament the improper approaches that occurred for any sanction that they can come up with. We have a system now where we are challenging every difficulty. In fairness to the Department, and I do not want to be unfair to the Department, they are now beginning to consult us before these circulars are issued to see whether there are points about which we have disagreement. I think that is where practice can correct the problem in time. We have got to do it from a position of independence otherwise I think we are in difficulties with the challenge in the first place.

  Q1175  Lord Goodhart: You have to allocate clerks to benches, do you not? Under your proposal, which involves going to the Judicial Appointments Commission, who would be responsible for the allocation? Would it be a judge?

  Mr Clarke: If the appointment was made by the Judicial Appointments Commission, what I anticipate would happen would be that the agency would determine the number of areas within which it operated and the resources that it had available to it on finance. There would then be a fixed number of justices' clerks posts and those would be justices' clerks, for example, for my own home county of Northamptonshire or whatever. As those vacancies arose they would be filled by the Judicial Appointments Commission on competition. In that way it would be always, as now, the number of judges is determined by Parliament and the allocation of funding to that, so it would be that the agency would determine the number of justices' clerks and the areas to be served by them and then the Judicial Appointments Commission would assign them to that area.

  Chairman: Thank you very much indeed for coming. Certainly as far as the Justices' Clerks' Society is concerned, you have put your case very clearly in front of us, we are much obliged. As far as the Magistrates' Association is concerned, we are delighted that they are broadly satisfied. Thank you very much.