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I remind the Committee that with this we are discussing the following:
Amendment No. 37, in
clause 27, page 12, line 24, at end insert
'appointed to serve on one or more local justice areas.'.
Amendment No. 35, in
clause 27, page 12, line 28, leave out 'or'.
Amendment No. 36, in
clause 27, page 12, line 29, at end insert
(d) is appointed with the agreement of the chairman and deputy chairman of the local justice area.'.
Amendment No. 38, in
clause 27, page 13, line 1, at end insert
'appointed with the agreement of the clerk of the local justice area.'.
Before the break, I think that I had dealt with amendments Nos. 34, 37 and 38, which were largely about the process of appointment of justices' clerks and their assistants. My concern was that the amendments would be undesirable in terms of normal civil service employment practices.
''A person may be designated as a justices' clerk''
if he or she is appointed
''with the agreement of the chairman and deputy chairman of the local justice area.''
I have a number of concerns about that proposal. The amendment would require the Lord Chancellor to hold such consultations before making the appointment, and that would be impractical, as it would require him to decide on the area to which he would assign the clerk before the appointment, and then to consult the local bench on the appointment. That would severely restrict the flexibility that a new courts agency would achieve, and the new business processes that we want put in place.
It would also be undesirable for the chairman and deputy chairman of an area to be able to veto staff appointments made by the Lord Chancellor; there will be ample opportunities for normal consultation, as we said earlier in our proceedings. Clause 21 gives the Lord Chancellor the duty to take reasonable and practical steps to consult lay justices on matters affecting the performance of their duties and to ascertain their views on such matters. I assure the Committee that magistrates will be consulted on such relevant matters—for example, before a change in the assignment of a justices' clerk to an area. Clause 27(4) gives the Lord Chancellor the duty to consult the chairman or his or her deputy on the lay justices assigned to the area.
I hope that in the light of my comments, and those that I made before we adjourned this morning, the amendment will be withdrawn.
I beg to move amendment No. 39, in
clause 27, page 13, line 7, at end insert—
'( ) Before the Lord Chancellor takes steps to remove a justices' clerk from office he shall—
(a) consult the justices for the relevant local justice area,
(b) consult the courts board for the area which includes the relevant local justice area, and
(c) consider any recommendations made to him by the justices, the courts board or the justices' clerk who is under notice of removal.'.
This amendment would have a slightly different effect.
We were talking about consultation before people were appointed, but we are now talking about the need for some level of protection before anyone is removed from the position of justices' clerk. It would be helpful if there were consultation with both the lay justices and the courts boards before the removal of a justices' clerk was contemplated. Their recommendations, or any representations by the clerk, should be considered.
I hope that the Minister will understand that we are trying to provide a level of employee protection in the Bill, and I will listen with interest to what he has to say on the subject.
I welcome you to the Committee this afternoon, Mr. O'Brien. I also welcome my hon. Friend the Member for North
Norfolk (Norman Lamb), fresh from his travails on the Finance Bill Committee. He will, no doubt, return there in the near future.
I agree with the view expressed by the hon. Member for Surrey Heath (Mr. Hawkins), but not with the precise wording of his amendment—I hope that he can live with that. There seems to be a need for some sort of protection for justices' clerks, beyond that which is available through normal employment protection. They have a judicial function, if not a judicial post, so it seems appropriate that something should be laid down in statute regarding the process of their removal.
My only quibble with the hon. Gentleman is the wording of paragraph (c) of his amendment, which states that the Lord Chancellor shall
''consider any recommendations made to him by the justices, the courts board or the justices' clerk who is under notice of removal.''
It occurs to me that a recommendation from the person who is about to be sacked might be that he should keep his job. ''Representations'' would be a better term.
Of course I am not wedded to my wording. It might interest the hon. Gentleman to know that in the long watches of the night when I was preparing today's speeches on the amendments, I thought the same thing. I should have included the words ''or representations by'', which is why I used the word ''representations'' rather than ''recommendations'' when I spoke to this group of amendments. If I had not drafted them late at night, I might have included those words.
The amendment would require the Lord Chancellor to consult both the justices of the relevant local justice area and the courts boards covering that area, before taking steps to remove a justices' clerk from his or her post. It would also require the Lord Chancellor to consider representations made by the justices, the courts boards or the justices' clerk himself or herself before taking such a step. While I understand the motivation behind the issue—given that the posts are important and that it is necessary to take great care over such matters—the amendment is undesirable. It would require the employer—the Lord Chancellor—to consult widely on what might be sensitive staffing issues and personnel matters.
For example, it might be inappropriate to consult the courts boards on the assignment, or removal, of a justices' clerk, when they might have a strategic role in local statutory matters. They will not be the employers' body, nor will they represent the interests of local magistrates. In the event of a clerk being removed from his post, there would be nothing to prevent local courts boards, magistrates or justices' clerks themselves from making such representation to the new courts agency. That is what I imagine will be normal and likely, should those organisations and bodies choose to do that.
In the course of employment it can happen that certain individuals need to be removed from their posts for very delicate and sensitive reasons, so such widespread consultation may not always be appropriate.
However, I assure the Committee that in practice, magistrates will continue to be consulted about decisions that affect them, including the assignment or removal of a justices' clerk. Clause 21 gives the Lord Chancellor a duty to take reasonable and practical steps to consult on matters affecting the lay justices and the performance of their duties, and to ascertain their views on such matters. We tabled amendments in the other place to make it clear not only that justices' clerks are to be assigned to particular local justice areas, but that the chairman of the justices must be consulted before a clerk's assignment is changed. That consultation matters, not the wider question of a person's employment or suitability for employment by the new agency. Justices should not be prevented from expressing views on such matters, but they should not have a natural entitlement to do so.
If chairmen of the justices are to be consulted on changes to assignments, surely it would be appropriate for them to be consulted on proposed dismissal. Consultations can certainly be on a confidential basis, and it is appropriate that they should be. According to normal employment law principles, for a dismissal to be fair, those people ought to be consulted. Best practice must dictate that the Lord Chancellor, based at the centre, should be consulting at local level before dismissing a clerk under such circumstances.
Clearly, the new courts agency will have a local structure that will be able to deal in the normal way with employment matters. Hon. Members are employers these days, so they will be familiar with the need to take great care to ensure that should somebody need to be removed from their post, procedures are gone through and sensitivity is applied to certain issues that can arise in the course of employment. A rigid requirement to consult the courts board, for example, as set out in paragraph (b) of the amendment, would not always be appropriate, because it will not be the employer. As I said, there is already latitude in the provisions to allow for consultation, and for representations to be made. They are adequate in their present form.
There is also a minor technical problem with the title ''courts administration council'' as opposed to ''courts board'', but I will not make a big deal about that. There are reasons why the amendment is not absolutely correct in that regard, but I have made the substantive point that sensitive personnel matters could be involved. Such wide and rigid consultation requirements will not always be appropriate. On those grounds, I hope that the amendment will be reconsidered.
It is helpful to have the Minister's reassurances on the record. Were there to be a dispute about the need for consultation about the removal of a justices' clerk, those involved can now refer back to the Hansard report of this Committee's proceedings and
read what the Minister said on behalf of the Government. It was worth while tabling the amendment and I am grateful to the hon. Gentleman for his usual courtesy in addressing the matter seriously.
We were grateful for the Government's response in another place. The Minister touched on the fact that the Government had responded to concerns raised by my noble Friend Baroness Anelay of St Johns and other noble Lords about the matter. We have explored the matter sufficiently and now have some reassurance on the record, so I do not need to press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 ordered to stand part of the Bill.