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Lord Maclennan of Rogart moved Amendment No. 165:
| "Justices' Clerk | Sections 2(1) and 27(1) of the Courts Act 2003 (c. 39)" |
The noble Lord said: My Lords, in retabling the amendment, neither my noble friend Lord Goodhart nor I intend to afford ourselves the opportunity of repeating in extenso arguments which were heard in earlier debates on the Bill. However, the justices' clerks remain dissatisfied, even given the considerable changes made since the original Bill was drafted.
The essence of their concern is that by being treated as civil servants their position may be seriously affected by civil servants in other departments who are concerned about the manner in which they are executing their jobs. They have cited a number of disturbing allegations of interference in their work.
I know that there has been a continuing dialogue in the Government about this, and I am anxious simply to know whether Ministers have had any further thoughts about these concerns. The possibility of
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appeal or of obtaining the consent of the Lord Chief Justice is simply not regarded as sufficient. Surreptitious manipulation of staff by senior departmental officials would militate strongly against their interests and the interests of the judicial system.
I am merely affording the Government the opportunity to indicate what thinking there has been about this matter since it was last before the House. I beg to move.
Lord Kingsland: My Lords, I agree entirely with the noble Lord, Lord Maclennan, and I have nothing to add.
Lord Falconer of Thoroton: My Lords, I accept that this is a very important issue. The amendment of the noble Lord, Lord Maclennan, seeks to treat justices' clerks like judges. I do not believe that that is a realistic suggestion. It is not what the Justices' Clerks' Society wants because, ultimately, the appointment or otherwise of justices' clerks would be in the hands of the Minister under the terms of the Bill, and he could accept or reject the recommendations made. I understand that that is not what the justices' clerks seek. Equally, it would not change the status of justices' clerks as civil servants, which comes from the Courts Act. In Committee, my noble friend Lady Ashton outlined at length the protections that were in existence. Since then, we have made changes in the revised Schedule 4, which the noble Lord accepted on that day, but I accept that it was made clear at the time that those amendments were accepted without prejudice to these amendments. Those are additional measures that ensure that justices' clerks can exercise those aspects of their responsibility that are of a judicial nature, and they can exercise them independently.
I should also state, as I think that it is important, that I have agreed in principle that the professional training of justices' clerks and legal advisers should be carried out by the Judicial Studies Board. The Justices' Clerks' Society, in particular, was concerned that this might be an area where the professional independence of justices' clerks might be threatened. I do not think that that would be the case. There are, however, clear links between the training of magistrates and their legal advisers that it must be beneficial to explore with the unified administration. I want the detail to be worked through, however, before giving a formal direction to the Judicial Studies Board. In particular, the JSB has emphasised that it could not take this on before 2007-08, due to the demands of it taking on a strengthened role in the training of magistrates. I hope that this indication is helpful, and demonstrates that I am serious about ensuring that there is confidence in the arrangements for justices' clerks in the unified administration.
The government amendments that the House has already accepted, and the other commitments that we have given, provide practical ways of ensuring that the justices' clerks can carry out independently those aspects of their responsibility that are of a judicial nature.
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I am also very conscious of the points that the noble Lord, Lord Maclennan of Rogart, made on behalf of the Justices' Clerks' Society in relation to particular concerns over what some people have perceived as examples of interference by the department in the independence of justices' clerks. However, the Government provided a response to the Select Committee, demonstrating that nothing untoward had taken place. These were examples of the department working and consulting with the Justices' Clerks' Society and others, such as the senior district judge and magistrates' courts.
Justices' clerks carry out an important role in administration and in giving legal advice to lay magistrates. However, the point has been made before, but I think it warrants making it again: they are not judges; they do not have judicial status; they do not conduct trials, sentence offenders, give judgments or decide substantive issues between parties; and they do not take the judicial oath. As well as being legal advisers, they have very important administrative responsibilities. My noble friend pointed out the administrative aspects of the justices' clerks' role in Committee. She also noted that the Judicial Appointments Commission will be set up to select judicial office holders, and will have the skills and experience needed to select those people.
In summary, although I am not sure that this is necessarily the point of the noble Lord's amendment, I do not think that it would be wise to accept his amendments in place of the appointments process that the House accepted on 7 December. On the contrary, I see distinct disadvantages in using the JAC mechanism for these particular posts, and I think that it is simply inappropriate to give the commission the task of selecting people for non-judicial appointments. I hope that the noble Lord is reassured, and I hope that he will withdraw his amendment.
Lord Maclennan of Rogart: My Lords, I wish I could say to the noble and learned Lord the Lord Chancellor that the justices' clerks' view is as he has described it. They are persuaded that their judicial functions— and that is how they describe them—are such that they merit a separate and different form of appointment and that their status, while originally changed by the 2003 Act and not in anticipation of the Bill, is something about which they are seriously concerned. I know that the noble and learned Lord the Lord Chancellor and, indeed, the noble Baroness, Lady Ashton, have given a lot of attention to this. I also have no doubt that they are aware that telephone calls making very strong representations about this are being received practically daily. They will no doubt have heard, as the House has, the arguments deployed by the noble and learned Lord the Lord Chancellor. I can only express the hope that they are satisfied by the answers that they are being given.
It is unquestionably a difficult issue. There is a hybridity about the role; the interferences are not of a kind that would naturally come to light very easily. There is an understandable concern about their status.
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However, we have reached the point at which the arguments have been deployed to the best of my ability. I have no new arguments; therefore, I will not weary the House, at this late hour, by further protraction of the debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton moved Amendments Nos. 164E to 164G:
On Question, amendments agreed to.
Lord Falconer of Thoroton moved Amendment No. 165A:
On Question, amendment agreed to.
[Amendment No. 165B not moved.]
Clause 72 [The Minister's options]:
Lord Borrie moved Amendment No. 166:
Page 30, line 10, after "must" insert "recommend or appoint the person selected or, in the case of a selection for appointment as a puisne judge of the High Court, must"
The noble Lord said: My Lords, the aim of the amendment is to provide that in relation to appointments to the judiciary below the level of a High Court judge, the Lord Chancellor should not have the option of rejecting the nominee of the Judicial Appointments Commission or, indeed, of requiring the commission to reconsider the selection. We should, if I may borrow a phrase from my noble and learned friend the Lord Chancellor, trust the Judicial Appointments Commission.
The amendment would require the Lord Chancellor to appoint or to recommend to the Queen all candidates selected by the Judicial Appointments Commission for appointments below the High Court level—that is, circuit judges, recorders and district judges.
The whole point of the new Judicial Appointments Commission is to reduce the role and influence of the Lord Chancellor and his officials in the Department for Constitutional Affairs in decisions on individual appointments to individual posts. Since a very large number of junior—if I may use that word loosely—judicial appointments are made each year, compared with the much more modest number of senior appointments that have to be made each year, if the Bill remains as it is, it seems that the Lord Chancellor and his Department for Constitutional Affairs will have to retain a parallel bureaucracy, with all the costs involved of files, consultations and inquiries on the merits and demerits, qualities or lack of qualities, of individual persons to be appointed to the relatively low levels on the judicial ladder of district judges,
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recorders, and so on. Either that is the case or ministerial involvement would be, as Sir Colin Campbell put it to the Select Committee,
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