Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I will immediately take up the point made by the noble Lord, Lord Beith, about consolidation. It is a rather important function of Parliament, but it is not a particularly attractive one. I served on the Consolidation Committee for some time. I remember that it is a committee of both Houses. We had the greatest difficulty in securing a quorum for the committee to proceed—and not because of the absence of Members of the House of Lords.

When I first looked at the Bill, what astonished me was that court staff were going to be authorised to advise judges on the law. I thought that that was rather strange. I thought that judges were supposed to know the law before they got to that position. Of course, when you look at it more carefully, the judges are judges of the family court and justices of the peace. There will be professional judges in the family court from time to time, as well as judges who are there effectively as magistrates. As I understand it—and certainly for all the time that I have known anything about it—justices’ clerks have always been responsible for giving legal advice to magistrates in magistrates’ courts. That was dispensed with only when the court had a stipendiary magistrate because he, being stipendiary, was thought to know the law and therefore not to require the advice of the justices’ clerk.

It is a sad day for me to see the justices’ clerk’s title being set aside in a schedule to a Bill in Parliament. The office of justices’ clerk is very old and very distinctive, but it will be replaced. Let me find the passage. Paragraph 7(a) of the Schedule says that,

“for ‘justices’ clerk’ substitute ‘designated officer for the court’”.

Apart from anything else, it seems a little longer, so it will take longer to type—but it is anything but a distinguished-looking title.

Seeing my noble friend Lord Baker of Dorking not far away reminds me of a fact about justices’ clerks that I learned long ago. It was the habit of the Lord Chancellor to attend the annual meeting of the justices’ clerks of England and Wales. To one of these I went and I was told by the president of the Justices’ Clerks’ Society, who had recently been at an international conference of their brethren, that he had been told by the people there that they were astonished that a court official as important as a justices’ clerk should be responsible to a Minister who was also responsible for prisons. Of course, in those days the justices’ clerks were the responsibility of the Home Office, and the Home Secretary certainly had the undoubted privilege of being the Minister for Prisons.

That encouraged me to think that it was time for a change, so we had an arrangement under which the justices’ clerks’ policy department moved from the Home Office to the Lord Chancellor’s Department. I regret to say that that very important judicial development has now been reversed, in that the justices’ clerks, with all the other court staff, are in the political area of the Ministry of Justice, which has, as one of its most important functions, looking after prisons. So the whole improvement has been reversed, which is what you may call progress. So far as I am concerned, I think it rather unfortunate that there needs to be change of this title—but perhaps more enlightened people can advise me whether there is any option.

Another provision in the Bill changes the names of some officers. One that I would like to suggest, which my noble and learned friend knows all about, is the district judge (magistrates’ court). That title was suggested instead of “stipendiary magistrate” because it was thought that reference to remuneration was not quite the right thing for somebody of that order. Therefore, this is what has happened. So far as I am concerned, after a good deal of time during which this has been running, it would be quite a good idea to forget the bracketed “magistrates’ court”. In the Bill we are talking about judges getting legal advice who are in fact lay people, whereas the district judge sitting in a magistrates’ court is quite a distinct officer, so the necessity for the rather long title has now been removed.

One other point I will mention is not in the Bill, but the Bill changes the names of judicial officers and some of the masters now have a different title. I was in Edinburgh last Thursday when the President of the Supreme Court gave a lecture. One of the important functions of the Supreme Court is that it is the Supreme Court for the whole of the United Kingdom. Apparently when it was created—I learned this on Thursday—the staff of the Lord Chancellor’s Department wrote to the Scottish authorities to say that the Supreme Courts of Scotland were now required to change their name to something else. Not entirely to my surprise, they got a letter back to say that they were proposing to do no such thing and there are Supreme Courts in Scotland still.

However, the great jurisdiction of England and Wales has no Supreme Court; it is the Senior Courts. I do not know whether there is a junior court—I do not think expressly so; no doubt the magistrates’ courts and possibly the family court are part of that section. Surely it is time to recognise that the Supreme Court of the United Kingdom is not a court of England and Wales. Therefore, there is no reason why we should not have the old names—the High Court and the Court of Appeal, as they were for a long time before the Supreme Court. I think that this suggestion probably comes within the Long Title of the Bill, but I would be glad to know whether it can be contemplated before I put down an amendment for that purpose.