§ 8.16 p.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) rose to move that the draft order laid before the House on 26th February be approved [11th Report from the Joint Committee].
§ The noble Lord said: My Lords, in moving this order I shall speak at the same time to the Courts Boards (Appointments and Procedure) Regulations 2004.
§ In November 2003, the Courts Act received Royal Assent. The Act fulfilled the Government's commitment announced in July 2002, to legislate to integrate the management of the courts within a single courts agency to replace the Magistrates Courts' Committees and the Court Service in England and Wales.
§ The role of the courts boards is to work in partnership with the new agency and to advise and make constructive recommendations to enable the agency to improve the services it provides. They will provide an opportunity for magistrates, judges, users of the courts and members of the local community to have a real say in the way the courts are administered. They will maintain a local focus for the delivery of court services within the new agency.
§ Each courts board will work with the agency's area director, the senior court administrator for their area, and it will scrutinise, review and make recommendations about the way in which the Crown Court, county courts and magistrates' courts in the area are run. It will consider the draft business plans for the courts and review area performance against those plans throughout the year.
§ The courts boards will work with the new agency from its launch in April 2005. These instruments will be brought into force from 1st June 2004. The courts boards will operate in shadow form from this October. This will allow them to consider draft business plans for the new agency. Having the boards in place in advance will ensure that they are ready to provide the level of scrutiny envisaged by the Courts Act from day one.
§ Turning specifically to the draft guidance and the code of practice, the Courts Act requires the Lord Chancellor to issue guidance to further define the role of courts boards. The Government undertook in this House to make that guidance available when these regulations were debated. Copies of the draft guidance and the accompanying code of practice have been made available in the Printed Paper Office. They have benefited from the comments of key stakeholders including the Magistrates' Association and the Central Council of Magistrates' Courts' Committees.
§ The regulations have been developed following extensive consultation. The consultation paper was issued last September and its proposals were developed following regional discussion groups involving magistrates, judges, court staff and court 1406 users. Two conferences were held for the magistrates' Bench and branch chairmen. Discussions have also taken place with national representatives of the magistrates' courts and the judiciary.
§ The provisions contained in the regulations and the post-consultation report, both published in February, have benefited from these views. Moreover, the Joint Committee on Statutory Instruments has seen the regulations and the order and they have been considered in another place.
§ The Courts Boards Areas Order sets out the 42 courts boards areas for England and Wales. The Courts Act provides that the Lord Chancellor shall have regard for the desirability of specifying areas which are the same as the police areas under the Police Act 1996. On 31 July 2003, the Lord Chancellor announced that there would be 42 local management areas in the new agency following the Police Act boundaries and that each one would have a courts board. The new areas would be the same as the areas used by other criminal justice agencies and will be coterminous with local authority boundaries. I very much hope that the House will welcome this for the obvious benefits it should bring.
§ During debate of the areas order in another place, some inconsistencies in the way in which the 42 areas are described and defined were highlighted by the right honourable Members for Surrey Heath and for Colchester. I make it plain that the areas set out in the areas order are correct and all the courts within those 42 areas will fall within the remit of that area's courts hoard. However, there is not a full description of all the accurate local authorities within some of the relevant 42 areas. We will therefore bring forward amending regulations to come into force on 1 June 2004 at the same time as this order and the regulations to make that absolutely clear.
§ Turning to the Courts Boards (Appointments and Procedure) Regulations 2004, these regulations make provision as to how courts boards members will be appointed and the basic procedures under which the boards will operate.
§ During the passage of the Courts Act, the Government undertook to follow the code of practice on public appointments of the Office of the Commissioner for Public Appointments (OCPA). That commitment is reflected in the regulations.
§ The regulations provide for the Lord Chancellor to publish the qualities for which the lay and magistrate members of courts boards will be selected; and having sought the views of an OCPA trained independent assessor. This will mean that the selection criteria are open and transparent.
§ The regulations provide for applicants to be assessed against the published criteria by a three member appointments advisory panel, normally comprising the area director, an independent assessor and a courts board member who will chair it. The regulations require the Lord Chancellor to consult the panel before making appointments.1407
§ The appointment of judges to the boards will, at least initially, be from the circuit bench and will normally be a designated civil judge, designated family judge or a resident judge in the area. The pool of potential judge members is small and a proportionate appointment process has been agreed with the Commissioner for Public Appointments. The Lord Chancellor will appoint judge members on the recommendation of the Lord Chief Justice.
§ The regulations provide for the selection of a chair for each board by applying further criteria to interested lay and magistrate members, with the Minister taking a final decision. It has been agreed with the judiciary that the judge member will not chair. Assessing potential chairs against objective criteria will ensure that the chair is competent to undertake that role and provides a transparent process by which the best person is chosen.
§ The regulations also set the maximum number of members at 12 and allow the boards to set their own quorum, subject to a minimum of four people. They provide that members may sit on the courts board for a maximum of three terms of three years although two terms will be the norm. They also provide for circumstances in which a member may be suspended or dismissed.
§ These regulations set out an open and transparent system of appointment for courts boards members and the order sets out courts boards areas that are in line with the wishes expressed by this House during the passage of the Courts Act. I commend both orders to the House. I beg to move.
§ Moved, That the draft order laid before the House on 26 February be approved [11th report front the Joint Committee].—(Lord Filkin.)
§ Lord Goodhart
My Lords, I have no comments on the Courts Boards Areas Order. It was agreed at the time that the Courts Bill was going through your Lordships' House that the initial areas would correspond with the existing police areas and with the existing magistrates' courts committee areas. That has plainly been done. Subject to the amendment to the titles of those areas being introduced, we are entirely happy with them.
However, a point somewhat concerns me regarding the appointments and procedure regulations. Regulation 4 provides that the courts board appointments advisory panel, which advises on the appointment of the members of the courts board, shall comprise:(a) … a person in the civil service of the state who appears to the Lord Chancellor to be appropriate for this purpose".As the Minister has just said, and as is also disclosed in the response paper published in February this year, it is the intention of the Government that that civil servant should be the area director. That is a matter which causes me some concern because one of the statutory duties of the courts board will be to monitor the work of the area director who is carrying out the responsibilities of the Lord Chancellor in that area. It seems to me to be prima facie inappropriate that one 1408 of the three people who are responsible for making the appointments to the courts board, and, indeed, a person who because of his or her standing may well have a particular influence in the work of the appointments board, should be the person whose work is to be monitored by the courts board. I believe that there is a problem there with conflicts of interest.
I hope that the Government, as they are going to have to introduce an amendment order anyway in relation to areas, may be prepared to reconsider that point and introduce an amending order to alter that provision. It would be less inappropriate to have an area director from another area, though even so I would prefer that the civil servant should be somebody who has no current responsibilities as an area director. Having said that, I have no concerns with other parts of these regulations, though my noble friend Lord Phillips of Sudbury has some points that he wishes to make.
§ Lord Phillips of Sudbury
My Lords, I wish to make three brief points. The first concerns Regulation 5 of the Courts Boards (Appointments and Procedure) Regulations. Regulation 5 deals with appointments of members of courts boards who are not judges. Paragraph (3) states:Where he is considering making an appointment, the Lord Chancellor must—(a) identify, and publish …(i) the qualities and abilities which in his view are likely to be the most relevant"—and that is perfectly clear—(ii) any experience and qualifications which in his view are likely to be relevant".It then goes on in the following paragraph to say that,(4) Before taking the steps"—that I have just referred to, that is, identifying and publishing those matters—the Lord Chancellor must consult a person who has been trained … to act as an independent appointments assessor".Is the right and capacity of the Lord Chancellor to consult vis à vis the matters dealt with in paragraph 3—qualities, abilities, experience and qualifications—confined to consulting someone trained "as an independent appointments assessor"? I rather think and hope not, and that, for example, on the experience criterion, which seems crucial—people with the right experience to sit on these boards—the Lord Chancellor will be free to consult whomsoever he wants. That might mean consulting people in the area for which the board will be responsible.
My second question is in respect of paragraph 7, which states:The Lord Chancellor must supply a courts board appointments advisory panel with such further information as it reasonably requires for the purpose of discharging its functions".My question is whether the only person whom the courts board can consult in discharging those functions is the Lord Chancellor, or whether the courts board can reach beyond the Lord Chancellor if it 1409 requires other information or advice. Again I think the answer in common sense should be "yes", but it would be helpful to have that clear.
Finally, we have in Regulation 9 the important and necessary provision for resignation, suspension or removal of members of courts boards. One of those grounds is that a person has been charged with a criminal offence. On the face of it, if someone is charged with a criminal offence and is acquitted—let us say on the ground that it is the wrong person—it would be extremely harsh if someone was removed from a courts board, especially with the damage that would then follow to his or her public reputation. Is the Minister in a position to describe the sort of basis on which the Lord Chancellor would exercise a power to suspend, which I hope it would be?
What I hope the Minister is free to say is that this provision would enable the Lord Chancellor to state—where there was a rather scandalous charge against a member of the courts board—that he felt on grounds of public confidence that he needed to suspend a member of the courts board until the matter was cleared up, thus leaving the person to resume his or her position if he or she was acquitted. I hope that the Minister can confirm that that is the way in which this power will be exercised.
Finally on Regulation 9, will it be possible to appeal a person's removal on the grounds that he is "unfit", which is a ground for removal? Thinking of the public reputation of the person concerned, it could be extremely harsh to have no warning of why one is being removed, no chance to put one's case on the issue of unfitness, and no right of appeal once the removal has taken place. I well appreciate that we are dealing here with the Lord Chancellor, whose interests are of the most proper and sensible kind. However, I hope that the Minister will see the point that I am concerned about. If he can lend any reassurance on that, I would be grateful.
§ 8.30 p.m.
§ Lord Filkin
My Lords, I turn first to the interesting probing question asked by the noble Lord, Lord Goodhart, about whether it is appropriate for an area director to sit on the panel. Clearly there are benefits in area directors being part of the process. They are the people within the administration with the best understanding of the needs of the court in their area. If that were the extent of it, I think there would be an understandable continuing concern as expressed by the noble Lord. However, there are in practice checks within the process to prevent the area director exerting undue influence.
Area directors will not chair the panel; for the first appointments, that will usually be done by the panel member who is already a courts board member and by a person with knowledge and experience of the courts. The area director will not make the actual appointment; that will be done by the Minister. Apart from the initial appointments, a member of the courts board will sit on the interview panel for a new area 1410 director. Finally, and perhaps most importantly, an independent assessor will be involved at every stage of the process to ensure that the process has been fair and open.
I do not think that what I have said or the process debars what the noble Lord, Lord Goodhart, further suggested about the possibility of an alternative area director sitting in on the appointments panel. For the reasons I have given, I do not want to go as far as saying that that should be an automatic rule; I think that that might be unwise. However, there are benefits in enabling a person with local knowledge to take part in the process, which is governed by the checks that I have signalled.
§ Lord Goodhart
My Lords, the member of the courts board who sits on the appointments panel would presumably be a person with local knowledge.
§ Lord Filkin
My Lords, that would often be the case, but perhaps not always, depending on how recently people had been appointed to the process. I will say no more on that for now, but I shall reflect on whether we need to go further in looking at those issues—without wishing to raise an expectation that we necessarily will.
It is essentially a balance. There is benefit in having a person with responsibility for that as part of the process. I hear the worry about whether a weak person—we hope that such a person will never be appointed—might be partial and not choose people of the talent and vigour to bring the most pressure. However, I should hope that the processes I have indicated will limit that relatively remote risk.
I turn to the issues raised by the noble Lord, Lord Phillips of Sudbury, the first of which was the identification of the qualities and experience of the courts boards members. As he said, the Lord Chancellor must publish the qualities and abilities, including the experience and qualifications, for courts boards members. Before doing so, he must consult an independent assessor. The question was whether the Lord Chancellor's ability to consult was confined to an assessor. The answer is "no"—which I think is the answer that the noble Lord had hoped for. It is not confined only to consulting an independent assessor. For example, we have consulted external bodies setting the criteria for the current exercise, such as the Association of Disabled Professionals and the Society of Occupational Lawyers.
I turn to the question of dismissal. In a sense, this is a power; it is not an obligation to rigorously enforce that. One could envisage a situation in which a person had been charged and had been convicted of a criminal offence—driving without due care and attention, for example—but it was not seen to be of such moment that it would necessarily undermine confidence in that position. I am not saying that this would mean that anybody so charged and convicted would in all circumstances continue, but it is a signal that there is a discretion for the Lord Chancellor, if he thinks it appropriate, to remove a person in such circumstances. You could perhaps go to the other extreme, where a person had—this is an extreme 1411 circumstance—been charged with murder, for example, and had been acquitted on a technicality. In that circumstance, one would wish the Lord Chancellor to have the power to remove. Because, clearly, having a person in such a situation might go to an issue of public confidence in his fulfilling a function which is essentially supervising the administration of justice.
I do not wish to speculate in detail. In short, it is a discretionary power that is with the Lord Chancellor for good reasons. Of course, there is an obligation on the person to make sure that natural justice is done to him, as well as upholding confidence in the process of the law and the functions that the courts board is intended to do.
There is no appeal of removal, as such. The powers expressed are discretionary, and the Lord Chancellor will be required to act fairly and reasonably under the ordinary principles of public law.
I trust there is nothing else that the noble Lord, Lord Phillips, raised that I have omitted. I am sure he will remind me if that is so. I hope that this has addressed the issues concerned.
§ On Question, Motion agreed to.