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I beg to move amendment No. 7, in
clause 2, page 2, line 21, at end insert—
'( ) The Lord Chancellor shall ensure that justices' clerks do not become civil servants but retain their preexisting employment status and rights.'.
This is a probing amendment. I hope that the Minister will understand that I am not being mischievous here. I want to enable the Committee to have a debate about the specific future role and the independence required of justices' clerks. All those members of the Committee who are lawyers will know that the vast majority of criminal cases in this country are dealt with entirely in the magistrates courts. I think that the figure is about 96 or 97 per cent. Lay magistrates have no legal training and so rely on justices' clerks to give them advice on points of law.
During my years of practice at the Bar I got to know a number of justices' clerks very well. When I read for the Bar in the late 1970s I studied with a number of people who were in the process of being called to the Bar as part of their professional training as justices' clerks. A huge number of justices' clerks do a fantastically good job. I certainly remember that they were keen to preserve their independence. I therefore want the Committee to be able to debate the change in their status. My amendment suggests that justices' clerks should not be rolled up into the generic description of civil servants, but should retain all their pre-existing rights of employment.
If no one challenges what is happening we are in danger of accepting this nationalisation, as the hon. Member for Somerton and Frome described it, on the nod. It is a small point, but we need to address whether it is right for there to be an expansion of the numbers of those coming under the control of central Government. There is a creeping nationalisation. There has been a huge growth of public sector jobs since the Government came to power, which has been written about by various economic commentators.
I have received representations from the Association of Magisterial Officers saying that as long as their trade union rights are protected they are quite comfortable with what is going on. However, we should not allow this to go through on the nod. The Minister should at least explain how the independent role of justices' clerks, which has been a historic feature of magistrates courts, will be safeguarded.
I will take the hon. Gentleman's comments in the spirit in which they are intended. I
will try not to be too pedantic about the wording of this probing amendment. We believe that making justices' clerks civil servants will give them enhanced career prospects that will include the chance to work in the headquarters of the new agency, for example, or for the Department of Constitutional Affairs more generally, if they feel and we feel that that is appropriate. They will also be eligible to join the principal civil service pension scheme and will be eligible for other superannuation benefits in the same way as other civil servants.
We feel that for justices' clerks to retain their pre-existing employment status and rights and not to be civil servants in the new agency is not the way forward. The amendment has a number of unworkable elements. At present justices' clerks are appointed by magistrates courts committees and are employed under their terms and conditions. However, magistrates courts committees will no longer exist by virtue of clause 6. All justices' clerks will be transferred to the employment of the Lord Chancellor and so they would have no employer if they were not made civil servants under the provision.
In setting up the new agency, we will be applying the Transfer of Undertakings (Protection of Employment) principles to the staff transfer. That means that the new employer will take the same perspective as the old and that an individual's terms and conditions from the MCCs apply on transfer to the new agency. Almost all staff will be mapped across on the same duties, at the same location, with new senior management, but with no change to their terms and conditions. However, pay and conditions might change in the future as a result of the transfer. Over time, we will be looking to harmonise terms and conditions. However, it is much too early to say when and in what circumstances. We will, of course, consult the relevant employee associations and trade unions in advance of any decisions being finalised.
Clause 29 states that a justices' clerk, while exercising an advisory or judicial function, will not be subject to the direction of the Lord Chancellor, or anyone else. Justices' clerks will, therefore, have the same statutory guarantee of independence in relation to their advisory or judicial functions as they currently have.
That is entirely true and is one of the reasons why I made those comments. I should also mention that justices' clerks are not judges under the current system and will not be judges under the new system. There is a statutory guarantee of independence, so I invite the hon. Member for Surrey Heath to withdraw his amendment.
I am grateful to the Minister. It was useful to have those matters clarified and put on the record. I am still somewhat concerned that the change is going through swiftly. It is quite a major change.
People who have had, in their official capacity, independence from the state are to be walled up in new state bureaucracy. I am slightly surprised that the change has, apparently, been welcomed. I have a nasty feeling that in a few years' time, when the people concerned start getting let down by the Labour Government on pay and conditions, there will be many protests. People will say, ''We never realised that it would mean this. We would much rather have kept our old position.''
Nevertheless, having put the matter on the record, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I shall not spend much time on amendment No. 110. Amendment No. 111 is the substantive amendment.
The clause deals with the Lord Chancellor making an order for entering into contracts for the provision of officers and staff to carry out the administrative work of the courts. Subsection (7) requires the Lord Chancellor to consult before doing that. The people whom he is required to consult are very grand. They are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.
I have absolutely no quarrel with the Lord Chancellor consulting the upper tiers of the judiciary in relation to making such an order. However, the order will apply to the workings not only of the High Court, but of magistrates courts. I have the greatest admiration for each of the current holders of the positions referred to in subsection (7), but my suspicion—I have not checked—is that none of them will have presided in a local magistrates court and, indeed, that it may have been some time since any of them appeared in such a court. Their duties as senior members of the judiciary will have taken up most of their time in recent years.
Given that the administrative arrangements are crucial to the way in which magistrates courts work, it would be a good idea if representatives of the magistrates had an opportunity to comment at an early stage on the effect of the Lord Chancellor's proposals on local magistrates courts and the way they do their business. Nobody will know better than local magistrates what the effect on the administration of justice in their courts and at their tier of court will be.
Is the amendment necessary? As I understand things—the Minister will correct me if I am wrong—by the time those consultations take place, the courts boards will have done their business and consulted locally. They will have made their representations, which will go up the system. The hon. Gentleman's amendment should not, therefore,
be accepted because it would take us back to the beginning of the process.
I am not confident that the hon. Gentleman is right that the consultation will take place after the courts boards are established and have had an opportunity to discuss the proposals. He might be right, but not necessarily. If that were the case, and every consultation had already taken place, one wonders why there is a need to specify in statute the duty to consult the appropriate heads of the senior judiciary at the various hearts of the judicial system.
Stephen Hesford rose—
It is important because we are talking about a consultation that is going up the line to the higher courts at a different stage of the process. Those are the appropriate people to have that consultation with at that point in the process.
I understand what the hon. Gentleman is trying to say, but I am not entirely convinced. At the end of the day, the Lord Chancellor needs to hear directly from the practitioners at each tier about the consequences of any order that he proposes under the clause. My amendment would provide a sensible safeguard to ensure that lay magistrates' voices are heard.
Can the hon. Gentleman explain why the Lord Chancellor should consult
''persons who appear to him''—
that is, the Lord Chancellor—
''to be representative of the lay justices''
rather than persons who he—that is, the hon. Gentleman—considers to be objectively representative? He is giving the Lord Chancellor a lot of discretion.
That is simply how we draft things in statute. It is not for me to determine who the proper representatives of magistrates are. I do not have a legal persona in this context, but the Lord Chancellor does. He has a duty to apply that discretion sensibly, and is open to challenge if he applies it inappropriately.
I shall take the argument of my hon. Friend the Member for Wycombe on a stage. It would have been perfectly proper to draft an alternative version of amendment No. 111 that stated that there was a duty to consult people chosen by the lay justices to represent them. That is the nub of my hon. Friend's point.
The hon. Gentleman is right, except that in effect the two come to the same thing. As he knows, the Secretary of State—the Lord Chancellor in this instance—will always accept the fact that there are bodies that represent a class of persons who are the right people to consult. I have made my case sufficiently for the Minister, so I look forward to his reply.
''persons who appear to him to be representative of the lay justices'',
as well as the heads of division who are listed in subsection (7), before making an order to contract out under subsection (6).
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.