The Magistracy: Indemnification agaiinst Costs (Hansard, 15 January 1996)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, Section 53 of the Justices of the Peace Act 1979 already provides for a magistrate to be indemnified against costs orders. A magistrate is entitled to indemnity provided he or she acted reasonably and in good faith.

§ Viscount Tenby
My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply, which 360 will be partly reassuring to the magistracy. However, is he aware that there is considerable anxiety within that service because of the danger that magistrates may be taken to appeal and have damages found against them? Some magistrates are talking of resigning from the service. As this problem has been in existence for some years, will he undertake as a matter of some urgency to bring forward a solution which will be equitable with others in the legal service?

§ The Lord Chancellor
My Lords, as I said, justices of the peace already have immunity in certain matters. They have an indemnity in respect of costs, as I have just explained. They have immunity against actions arising from matters within their jurisdiction. That immunity is complete. They also have immunity in matters outside their jurisdiction, except where it is proved that the magistrate acted in bad faith.
I think that magistrates are currently concerned that Section 53 provides an indemnity only against costs. They are anxious to go further and tc have immunity against costs. That obviously would involve primary legislation. However, as the noble Viscount indicated, it has ramifications for other members of the judiciary. I hope that we may be able to do something in this area. Obviously consultation would have to precede anything that we did. I am hoping that we might be able to go so far as a consultation at least by the middle of the year.

§ Lord Ackner
My Lords, does my noble and learned friend agree that the main concern of the magistrates is that they do not qualify for the indemnity unless they establish not only that they acted in good faith, hut that they acted reasonably—an obligation which does not apply to the rest of the judiciary?
Is it not the view of my noble and learned friend and his department that the immunity should be provided unless the justices of the peace acted in bad faith? If that were so, and as that would require legislation, would my noble and learned friend confirm that if I were to put down the appropriate amendment to the Criminal Procedure and Investigations Bill the Government would support it?

§ The Lord Chancellor
My Lords, as I indicated, there is a distinction between indemnity in respect of costs and immunity in respect of actions. Immunity obtains in respect of actions so long as the justice acts in good faith, or at least is not proved to have acted in bad faith.
The situation is different in respect of costs arising incidentally in applications which are not actions against the magistrates. There the position of the judiciary as a whole varies. It is not uniform. I believe that it would be premature to seek to legislate on this matter in a statute or a Bill concerned only with criminal procedure when there are many ramifications of such a change in the law which should properly be taken into account. I should prefer to have a full consultation on this matter before steps were taken to alter the legislation.

§ Lord Mottistone
My Lords, can my noble and learned friend possibly hurry up the consultations? I believe that he referred to the middle of the year. It is 361 a matter of great urgency. The point that the noble Viscount, Lord Tenby, made about magistrates now seeking to resign is most unwelcome. Perhaps an impression could be given that the Government will not waste any time in getting on with the consultation. Can my noble and learned friend give us that assurance?

§ The Lord Chancellor
My Lords, I would find it most unwelcome if magistrates were seeking to resign on this ground. It is quite clear that there is no real basis for any fear which would require them to do so. As I say, the law already provides for a magistrate to be indemnified against costs orders so long as he or she acted reasonably and in good faith. That is a pretty secure type of indemnity. However, as I said, I am anxious to do my best to deal with the concerns expressed by the magistrates. I believe that a consultation which has to affect not only the magistrates but other members of the judiciary requires to be fairly thorough. Therefore, to produce a paper by the middle of the year which covers all those aspects is going forward as fast as the nature of the subject matter requires.

§ Lord Allen of Abbeydale
My Lords, is it right to say that, if a magistrate is sitting with a judge at a Crown Court, the salaried judge can be confident of immunity from a possible claim for damages whereas the unpaid magistrate cannot? Do not such anomalies undermine the need for urgency and the hope that the consultations will result in an early solution, given that there seems to be an increase in the number of claims for damages?

§ The Lord Chancellor
My Lords, as I explained, justices of the peace have immunity against claims for damages, unless a justice is acting without jurisdiction and in bad faith. Thus magistrates are immune as regards claims for damages, except in that limited respect which one would expect to happen rarely, if at all.
The problem relates to costs, and the nature of the liability for costs must be taken into account. It varies considerably according to the position of the individual in the judiciary. The question is not simple and I hope that I am giving your Lordships every indication that I wish to address the problem with as much urgency as possible. I have very much at heart the interests of the lay magistrates who are unpaid, who give their services voluntarily and out of their own time. In order to secure their position properly, the matter needs to be considered. It is not a new problem which has arisen overnight; it has just been focused by certain developments. The nature of the problem is older and it requires considerable examination in depth before Parliament is invited to bring forward solutions.

§ Viscount Tenby
My Lords, is the noble and learned Lord aware that his remarks will be welcomed not only by magistrates but also the magistracy? As he is aware, the problem also affects justices' clerks.

§ The Lord Chancellor
My Lords, I am grateful that anything I say should be welcomed by magistrates or others. The noble Viscount raised the position of 362 justices' clerks. For the most part they are paid members of the legal profession—although perhaps they do not consider their remuneration excessive—and their interests in securing any kind of indemnity or immunity is also important. A number of matters need to be taken into account and the noble Viscount's question helps to illustrate the multiplicity of problems that can arise.