Posts Tagged ‘justices’ clerks’
The Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018
The great Transformation of the Justice System programme, being advanced by the Ministry of Justice and HM Courts and Tribunals Service was initially supported, legislatively, by a substantial Prisons and Courts Bill 2017. This fell when the General Election was called in June 2017. (See this Blog, March 2017 and July 2017). Since then, legal system watchers have been awaiting the return of the Bill, either in its original form or in a new guise.
Our patience is now at least partially rewarded with the publication of the Courts and Tribunals (Judiciary and Functions of Staff) Bill 2018, which was introduced into the House of Lords at the end of May 2018. As its title suggests, this is not the full legislative package originally envisaged. Rather it is a short, 4 clause Bill Iwith Schedue) which proposes measures to facilitate the more flexible deployment of judicial and other staff.
Once enacted, the judiciary will be flexibly deployed across jurisdictions, allowing judges to gain experience of different types of cases, helping with their career progression. It will also enable judges to be used in specific courts or tribunals where there are serious backlogs of cases.
As regards the taking over of tasks currently undertaken by judges, authorised staff could carry out some of the more straightforward judicial functions, including tasks like issuing a summons; taking a plea; extending time for service of applications; or considering applications for variations of directions made in private or public law children cases. One noteworthy measure is that the role of the Justices’ Clerk, currently a statutory one, will become non-statutory. This will enable them to give advice on law in the Family Court as well as in the Magistrates’ Court.
Details of the Bill are at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0108/lbill_2017-20190108_en_2.htm#sch1
Transforming the Justice System: the Prisons and Courts Bill 2017
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
The role of the magistracy
In October 2016, the Justice Select Committee published a report on the role of the magistracy in the criminal justice system. The Ministry of Justice responded to this report in December 2016.
There was a lot of common ground between what the Select Committee recommended and what the government is planning in relation to the magistracy.
A couple of specific issues caught my attention.
First, the Committee had noted that there appear to be some difficulties in ensuring that there are sufficient magistrates able and willing to undertake work in the Family Court. This has led the Ministry of Justice to make some administrative changes allowing a more flexible approach to be adopted for enabling magistrates to undertake family court work. The Ministry of Justice has indicated that it may consider special recruitment of some new magistrates who would only sit in the Family Court. However, even if it was concluded that this would be a good policy to adopt, it would require a change in the law. Any such change will therefore be some time off.
Second, the Committee report and the response from the Government raise some interesting issues about the future of the Magistrate’s Clerk. The Justices’ Clerk is the senior lawyer and adviser to the magistracy. Currently the appointment of the Justices’ Clerk is made under the Justice of the Peace Act, 1997. This requires the post holder to be a solicitor or barrister of five years’ standing or be a solicitor or barrister with five years’ experience of working in Magistrates’ Courts.
The Government has raised the possibility either that Justices’ Clerk would no longer be a statutory appointment, but rather appointed under new non-statutory arrangements. An alternative idea is that the functions of the Justices’ clerk might be undertaken by other officials working in the court system. The Government response to the Select Committee report states that this question is currently the subject of a ‘private’ consultation: “A consultation on the creation of a new senior leadership structure for lawyers working within HM Courts & Tribunals Service: Proposals to make changes to the role of the justices’ clerk”. This was published in December 2016 but is not apparently publicly available.
It seems unlikely that a major change to the role of the Justices’ Clerk would take place without some publication, so – again – I suspect that any change will be some time away. It should be remembered that part of the purpose of making the appointment of Justices’ clerks a statutory process was to help guarantee their independence in advising magistrates. It will be essential that this issue is taken on board in any proposals for reform.
For the Justice Committee’s report, go to http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/165/16504.htm
For the Government response, go to https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/577348/government-response-justice-committee-report-role-of-the-magistracy.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 