Introduction
This document is the post-consultation report for the consultation paper, Courts Boards: constitution and procedures
It covers:-
Further copies of this report can be obtained by contacting David Berry at the address givenbelow:
David Berry
Department for Constitutional Affairs
Unified Courts Administration
5thFloor Steel House
11 Tothill Street
London
SW1H 9LH
Telephone: 020 7210 0056
E-mail
Background
The consultation paper Courts Boards: constitution and procedures was published on 25 September 2003. It invited comments on the arrangements for the selection of Courts Board members and the procedures for Courts Boards. The consultation period closed on 5 January 2004.
Courts Boards will be established as part of the new unified courts agency as a means of ensuring local involvement in the way the courts are run. They will be established in April 2005 under the Courts Act 2003. The Act makes provision for the Lord Chancellor to make regulations detailing the constitution and procedures for Courts Boards and requires him to issue statutory guidance. The responses to this consultation paper have informed the regulations that are published alongside this report, and the guidance that will be made available before April 2005.
An initial regulatory impact assessment of the issues discussed in the consultation paper Courts Boards: constitution and procedures did not indicate any impact on business, charities or the voluntary sector. The responses to consultation have not revealed any new information that alters this initial conclusion and consequently no formal Regulatory Impact Assessment is included with this post-consultation report.
Summary of Responses
A total of 141 responses to the consultation paper were received. A large majority came from the Magistrates' Courts, but responses were also received from representative bodies, Local Authorities, two Police Authorities, individual judges and a local Victim Support office amongst others. A list of the respondents is at Annex A.
We analysed the responses to gauge levels of support among stakeholders. We were also keen to receive views on how to attract a diverse pool of candidates to apply.
The responses to the consultation paper were broadly supportive of the suggestions we have made. The majority of the respondents agreed with the proposals in the paper. The areas that brought out the widest variety of opinions were the level at which the quorum for Courts Board meetings should be set and elements of the selection process.
Responses to Specific Questions
Q.1 Do you agree that only the minimum of seven members should be appointed to each Board in the first instance?
123 respondents answered this question, of these 93 agreed and 30 disagreed. Some of those who disagreed thought that larger geographical areas would need larger Courts Boards. Others thought that nine members should be appointed to Courts Boards in the first instance and that one of the additional members should be a magistrate. We believe that the initial appointment of a Board of seven members in each area will be a workable number. We are not suggesting that it is possible to represent the demographic, geographic and social variation in a Courts Board area on a Board of seven. If we were to try to do so Courts Boards would be too large to make effective decisions. We are looking for motivated people who can work effectively together to consider the issues that will affect the administration of the courts in their area. Furthermore, there is the opportunity for Courts Boards, once established, to present a case to the Lord Chancellor requesting additional members with specific knowledge or skills if there proves to be a gap or if there is a significant workload in an area. Three respondents suggested that alternative arrangements should be made for London. This issue is dealt with in more detail below at paragraphs 39 and 40.
Q.2 Do you agree that the maximum number of members should be 12?
Of the 125 responses to this question, the majority (by a ratio of four to one) favoured 12 members being the maximum number of members of a Courts Board. Those who agreed included the Justices' Clerks' Society, the Association of Justices' Chief Executives and the Central Council of Magistrates' Courts' Committees. Those who disagreed did so primarily on the basis that an odd number of members would reduce the possibility of Boards being deadlocked over contentious issues. This issue also arose in the answers to questions about the level at which the quorum for Courts Board meetings should be set and is covered in more detail in that section. Some responses echoed those in question one by saying that larger areas would need a larger Board than 12. Conversely several respondents believed that more than 12 could make the Board too large and unwieldy. We have decided to set the maximum number of Courts Board members at 12. We will leave open the option of reviewing the maximum membership in exceptional cases, however, if operating experience proves there is a need to do so.
Q.3 Do you agree that the quorum should be four members?
50 respondents (39% of those who answered the question) said that four members would not make a good quorum. Just under half (20) of these said that the quorum should be more than 50%. The main argument for this was that anything less than half of the members would make the Courts Board undemocratic. A similar number (24) suggested that the quorum should be an odd number in order to facilitate decision-making. This highlights several issues. First, we want to promote a spirit of consensus in the way in which Courts Boards work. Sometimes the extra effort required to come to a consensus decision actually improves the quality of consideration of the issue. Second, even if the quorum were to be set at an odd number, there would be no way of preventing an even number of people attending any particular meeting. Third, there is a need to consider whether setting the quorum at a higher number of members is likely to prevent the Board dealing effectively with its business. Several Magistrates' Courts' Committees (MCCs) commented that their quorum was only three of their 12 members since a larger quorum would sometimes prove difficult to achieve. We realise, however, that this needs to be balanced against ensuring that there is sufficient representation of members at meetings. Given the wide variety of opinions, our draft regulations allow for each Courts Board to decide at what level to set their quorum for meetings, subject to a statutory minimum of four members.
Q.4 Do you agree that the Designated Civil, Designated Family or Resident Judges are the appropriate members for Courts Boards?
109 respondents answered this question. Of those who expressed a view, 98 agreed that these were the appropriate members, nine disagreed and two suggested that there should not be any judges on the Courts Boards at all. The majority of those that disagreed said that the appointment should go to the best judge for the job, irrespective of the level of their seniority. The Association of District Judges and the Association of Women Barristers recommended that there should be two judges. The Association of District Judges pointed to the breadth of work undertaken by the District Bench and argued that there should be a further position open to all judges which was used to balance the representation of the three jurisdictions. The judge on the Courts Board will not be appointed as a representative of a particular jurisdiction but to look across the jurisdictions and provide the perspective of a judge. Where issues arise that require consultation with the judiciary, the Area Director, will consult the different judges in their area in formulating plans and proposals. (In the consultation paper 'Courts Boards: constitution and procedures' the civil servant responsible for managing the courts in the area was referred to as the Local Chief Officer. It has now been decided that their title will be Area Director).
The draft regulations provide that the Lord Chancellor will appoint a judge on the recommendation of the Lord Chief Justice. This will be a Circuit Judge normally drawn from the Designated Civil, Designated Family and Resident Judges in the area. We will keep the number of judges on the Boards under review in consultation with the judiciary, in case more need to be appointed either to a particular Board or more generally.
Q.5 Do you agree that the magistrates' posts should be open to all magistrates who can demonstrate the personal qualities required, including Bench Chairmen, and current members of MCCs?
There was general agreement that all magistrates should be eligible to sit on Courts Boards. We believe that this is the right approach. 17% of the responses to this question suggested that there should be some sort of minimum length of experience as a magistrate required for Courts Board membership; with suggestions ranging from two to five years. The view was also expressed that Bench Chairmen might need, on occasions, to declare a particular bench interest; with a few respondents of the opinion that they should be excluded from serving on Courts Boards altogether. The selection process for Courts Boards will assess applicants' abilities on merit against set selection criteria. We are confident that this will ensure that those selected are capable of being impartial and have the necessary understanding of how the courts are run and the impact of this on court users, regardless of their length of service.
Q.6 What kind of "knowledge or experience" of the courts should individuals be required to demonstrate?
There were many different responses to this question. The key themes were that people should have a basic understanding of the court system or have regular contact with the courts in their area. Some thought that members should have a desire to improve how the courts worked or an understanding of customer service. Contact with the courts could be through courtroom experience or gained by working for agencies such as Victim Support and the Citizens Advice Bureau. Some responses had a purely criminal focus, requiring individuals to have understanding of the Criminal Justice areas. Others were more inclusive of knowledge or experience of the family and civil jurisdictions. We do not believe that the knowledge or experience of Courts Board members should focus on one particular jurisdiction, as both Courts Boards and the Area Directors will need to operate effectively across the justice system and with all other representative groups and organisations within it. The Council of Her Majesty's Circuit Judges said that individuals should be required to demonstrate "the kind of knowledge and experience that is gained by working in or with the Courts or with those who use the Courts in any capacity. It is important that when these people are recruited to the Board they should understand they are not representing whichever organisation, authority, or other body with whom they have a professional or other link. Rather they are individuals using their knowledge and experience in the broadest sense to enable the Board to fulfil its functions". We consider that the kinds of knowledge or experience set out above are appropriate for Courts Board members and will ensure that this is taken into account in drafting the selection criteria against which members will be appointed.
Q.7 How should members of the local community be required to demonstrate that they are representative of people living in the local area?
A wide range of views was received in response to this question. A number considered that 'representative' should not mean politically representative; with some indicating that they would prefer it if councillors or politicians were barred from membership. There were other responses that took an opposing view, believing that councillors would be the best people to serve by virtue of their local knowledge. We believe that political representatives should not be barred from Courts Board membership, and nor should those from local government who may have gained an understanding of their area from working within the local community. We will ensure, nevertheless, that people are selected who can demonstrate that their political affiliations will not affect their impartiality in considering Courts Board issues.
Many responses suggested that this category of membership should be required to reside or work in their Courts Board area; with some suggesting a period of residence within the area (or within a certain geographic boundary) as a prior qualification. We believe that members need to demonstrate close links to and a understanding of the local area or the communities within it and that living or working in a local community may provide the opportunities to show this. We do not believe, however, that this is best achieved by imposing a particular local residency or employment requirement. By way of illustration, members of Essex Magistrates' Courts' Committee recently co-opted some non-magistrate members. Their response said that their "experience of co-opting non-magistrates to the MCC is that living or working in the area need not be a requirement if the candidate can demonstrate relevant "generic" knowledge". We believe that there are so many ways in which people are active in their local communities that to set such a restriction risks excluding good candidates. We will ensure that applicants are asked to show how they have been pro-active within the local area and how they are making a difference. A number of respondents considered that applicants could do this by giving examples of local initiatives that they had been involved in. We support this.
Q.8 Do you have any suggestions on how we can attract a diverse pool of candidates to apply?
Many responses suggested both national and local newspaper advertising campaigns. A number suggested contacting key organisations asking them to encourage their members to apply as well as making information about Courts Boards available in town halls, libraries and local public offices, including courts, to encourage applications. Use of local radio and television were also suggested. The responses have provided many valuable suggestions that will be incorporated into our plans to recruit widely for Courts Board members.
Q.9 Do you have any comments on what the selection criteria should be?
Respondents made many suggestions about the abilities that Courts Board members will need to demonstrate. Common themes were: the ability to work in a team; good communication skills; sound judgement; analytical skills; commitment and reliability. Others pointed to members being able to commit the necessary time to the role.
A number of respondents suggested particular qualifications such as prior management or finance experience. We need to ensure that the criteria are set at the right level to ensure that people with the abilities that Courts Boards will need are selected. We must also ensure, however, that people are selected on the basis of their personal qualities and not their chosen career path or educational opportunities. The Magistrates' Courts' Service Inspectorate said "We propose the selection criteria should include the ability to take [a] rounded, corporate view, practical understanding of diversity issues, ability to meet time commitment, team work skills [and the] ability to take a strategic view". These and other suggestions will be taken into account in developing the selection criteria for choosing members of Courts Boards.
Q.10 Do you agree with the proposed selection processes?
The majority of respondents agreed with the selection processes proposed in the consultation paper. 21 respondents (16% of those who answered the question) believed that there might be a potential conflict of interest, considering that the Area Director could exert undue influence or inspire deference by their presence on the panel. We believe, however, that there will be positive benefits from having the Area Directors involved in appointing Courts Board members. Courts Boards are charged with considering and articulating local needs. Area Directors are the people within the administration with the best understanding of the local area's needs. Their membership of the panel will focus it on the aim of recruiting members who will deliver this.
In addition, the Area Director and the area's Courts Board need to have confidence in and be able to work effectively with each other. Although not possible for the first round of appointments, a Courts Board member will be on the selection panel for the appointment of future Area Directors. This will allow Courts Boards the opportunity to ensure that an Area Director is appointed who has an understanding of the courts' needs in their local area. Magistrates' Courts' Committee chairmen will sit on the first panels to appoint Area Directors to provide local input.
We also consider that there are a number of safeguards to prevent the Area Directors being viewed as having undue influence over the appointment process. These include a paper assessment of the merits of each applicant against published criteria. The selection panel will have two other members, one of whom will be an independent assessor, whose role is to ensure that the Office of the Commissioner for Public Appointments' (OCPA) standards of transparency and appointment on merit are adhered to throughout. Finally, the OCPA Code makes it clear that it is the minister and not the Area Director, who is responsible to Parliament for these appointments and must make the final choice of members.
Nevertheless, we have taken account of the views expressed. We have decided that, while the Area Director will sit as a member of the selection panel, they will not chair it. Instead, the third member will chair the panel.
The consultation paper made proposals about who should be the third member of the selection panel. We have decided that the third member should be drawn from the following persons who we believe have the right qualities and knowledge: members of the Lord Chancellor's Advisory Committees who appoint magistrates; lay members nominated by the Lord Chancellor's Advisory Committees; members of Magistrates' Courts' Committees (provided that do not intend to apply to become Courts Board members themselves).
Some responses questioned the amount of ministerial involvement, particularly in the appointment of the Boards. During the Parliamentary stages of the Courts Act 2003, ministers made commitments that the procedures for appointing Courts Board members would follow the requirements of the OCPA code of practice. The code of practice states that ministers are accountable for public appointments. It is a key element of that accountability that ministers take personal responsibility for the making of all such appointments.
Q.11 How should the Courts Board Chairs be selected?
The majority of responses suggested that Courts Board members should be able to elect their own Chair: 90 out of 129 responses favoured this option. A further 23 respondents said that members should elect the Chair subject to constraints set by the minister and 16 respondents indicated that the minister should appoint the Chair on the advice of the selection panel.
Although election by Courts Board members was the favoured response, we have decided that ministers should appoint Courts Board Chairs on the advice of the selection panel. There are a number of reasons for this. Courts Board Chairs will need to demonstrate greater abilities and perform additional functions to the other members including bringing the Board to a corporate view, undertaking additional preparation for meetings and representing the Board to senior contacts in the Agency and externally. OCPA advocates the appointment of the Chairs of public bodies via a selection process based on merit with ministerial responsibility for the appointments made after recommendation by the selection panel. If Courts Board members are asked to elect a Chair early in their appointment, they will not know each others' skills and abilities well enough to ensure that they are electing the right person to perform this role. Having the selection panel identify suitable candidates against set criteria means that there is a transparent process by which the best person is chosen on merit to carry out that role. We are also recommending that Courts Board members should be paid for the contribution that they make (see responses to question 15 below). With additional roles and responsibilities, the Chair would receive a higher level of remuneration.
We have not chosen to adopt the third option - that the Courts Board members elect a Chair from a list of people recommended by the selection panel and approved by the minister. Some responses argued that this option would ensure that those considered were capable whilst still allowing members an element of choice. We believe this option meets none of the needs of Courts Boards fully. The members may still feel that they do not have total discretion to choose the best person for the job. At the same time, there would be more limited ministerial involvement and, therefore, accountability than OCPA requires, in the# process.
Q.12 Do you agree that the term of office should usually be three years, with members serving a maximum of three terms?
Responses to the consultation paper have been largely supportive of our proposals. Out of 125 responses, 88 agreed whilst 37 disagreed. This disagreement relates primarily to the renewal of terms of office: a number of respondents, including a substantial minority of those who contributed to the Magistrates' Association's response and the Association of District Judges, suggested that Courts Board members' term of office should be renewable only once. Members would serve a maximum of six years on a Courts Board.
The OCPA Code of Practice provides that appointees can serve any number of terms up to a maximum of ten years providing that their performance has been satisfactory. We have decided that three terms of three years should be set as a maximum. In order to take account of respondents' concerns, however, we have also decided that the normal duration of appointment should be two terms of three years, with an appointment being renewed for a third term only in exceptional circumstances for those making a significant contribution.
Q.13 Are there any particular requirements that should be included in the Courts Board code of practice?
Our proposals to include the seven principles of public life, a register of interests and rules on political activity in the Courts Board code of practice were welcomed by everyone. Some responses highlighted the need for all Courts Board members to receive diversity awareness training and the need for all members to act corporately, even after a decision with which an individual member might not agree. When the code of practice is drawn up, we will include these suggestions. Some of the responses drew our attention towards MCC and Probation Boards' codes of practice that they considered contained helpful material. These will inform the code of practice when it is prepared.
Q.14 Do you agree with these reasons for removal from office?
82% of people who responded to the consultation paper agreed with the proposed grounds for removal from office. Of the 18% who said "no", most did so on the basis that our proposals in the consultation paper suggested that any conviction of a criminal offence, no matter how minor, would lead to dismissal. The draft regulations state that the minister may suspend or remove someone who has committed a criminal offence. This will ensure that there is the discretion available to prevent people with, for example, minor motoring offences being automatically removed.
Several people mentioned the need for a disciplinary process. We have not included this in statutory guidance or the regulations, as the power to remove is all that is needed on a statutory basis. We will ensure, nevertheless, that the detailed process is included in the training for Courts Board Chairs.
Q.15 Should an allowance for loss of earnings or remuneration be offered to members?
130 responses were received to this question. There was overwhelming agreement that some form of payment should be made. 51 responses specifically favoured a loss of earnings payment. These came mostly from the Magistrates' Courts community where such a payment method is familiar. Several people suggested that payment should be in line with the payment received by members of Police Authorities and the Probation Boards. We agree that members should be paid. We consider that they should be paid a regular sum rather than be able to claim only for loss of earnings. We believe that paying members will enable them to make the time commitment to Courts Boards, particularly those with caring responsibilities and the self employed. We will consider the likely responsibilities and time commitment of Courts Board members in deciding the level of remuneration that will be paid.
Q.16 Do you agree that these issues should be covered in regulations?
All but three responses agreed that we should make regulations on the issues set out in the consultation paper and we have published our draft regulations alongside this report. In the consultation paper we proposed that regulations should set out what the minimum frequency of meetings should be. In order to give Courts Boards some flexibility of operation we have decided, however, that the frequency of meetings is something that is best set out in guidance rather than prescribed in regulations.
Q.17 Are there any other aspects of constitution and procedures which should be included, either in regulations or in guidance?
There were four key issues raised:
All of these issues will be covered in the guidance, which will be published before April 2005.
We asked for any additional comments on the selection process and the content of regulations and guidance. London
Three responses queried whether one Courts Board for London would be sufficient as it is of a comparable size to a regional level. The Greater London Magistrates' Courts' Authority suggested that London should be split either into five geographical areas, each with its own Courts Board, or that the London Courts Board should be supported by a further sub-structure relating to each of the three jurisdictions (civil, criminal and family).
We believe that one Courts Board is appropriate given that similar organisations work in that way in the capital and, in particular, county court decisions are taken across London. We propose, therefore, that one Courts Board be appointed for London, but that the Regional Director works with the London Courts Board during shadow running to consider an appropriate sub-structure to underpin the Board.
Lord-Lieutenants
The Association of Lord-Lieutenants recommended that there should be an ex-officio position for a Lord-Lieutenant on each Courts Board and that they should take a place on the selection panel. Currently, the Lord-Lieutenants have an ex-officio position on Magistrates' Courts' Committees as well as acting as ex-officio chairs of the Lord Chancellor's Advisory Committee for areas. Courts Boards will have a different role and will cover the whole of the court system in a particular area. They will not be made up of representatives of different interests and there will not be ex-officio positions on Courts Boards for this reason.
We recognise that Lord-Lieutenants make a valuable contribution to the Magistrates' Courts and, beyond, this to the local communities that they serve. Individual Lord-Lieutenants are, of course, eligible to apply for posts on Courts Boards. We will expect Area Directors to liaise with the Lord-Lieutenants to ensure they are able to fulfil their responsibility effectively and can provide their perspective on local needs.
Conclusion
The responses to the consultation paper have reassured us that we have been focussed on the right issues in our planning for Courts Boards. Views on the selection criteria and the best way to attract a diverse pool of candidates have been particularly useful in guiding our thinking on the next steps.
The draft regulations have been published alongside this post-consultation report and we will be putting them forward for approval by Parliament. We envisage that the Courts Boards will be able to start contributing views on the draft business plans towards the end of 2004 and be fully functioning when the agency comes into being in April 2005.
Annex A - Respondents
National Representative Groups
Association of Justices' Chief Executives
AMO - the trade union for magistrates' courts' staff
Association of District Judges
Association of Lord-Lieutenants
Association of Women Barristers
Central Council of Magistrates' Courts' Committees
Civil Courts Users Association
Council of Her Majesty's Circuit Judges
Justices' Clerks' Society
Magistrates' Association
Magistrates
Avon and Somerset Bench Chairmen and Justices' Clerks' Forum
Bath and Wansdyke Bench
Bristol Bench
Magistrates' Association - Bristol and North Avon Branch
Canterbury and St. Augustine Bench
Central Devon Magistrates
Channel Bench
Magistrates' Association - Cheshire Branch
Chorley Bench
Croydon Magistrates' Court
East Cambridgeshire Bench
East Cornwall Bench
East Yorkshire Magistrates' Court
Magistrates' Association - East Yorkshire Branch
Grimsby and Scunthorpe Magistrates' Courts
Highbury Corner Bench
Hounslow Bench
Huddersfield Bench
Magistrates' Association - Inner London Branch
Lancashire Bench Chairmen's Forum
Lichfield and Tamworth Bench
Lincolnshire Southern Clerkship
Magistrates' Association - Lincs. & South Humberside Branch
Melton, Rutland and Belvoir Bench
Milton Keynes Bench
Neath Port Talbot Bench
New Forest PSD
North Avon Magistrates
Magistrates' Association - North Cumbria Branch
Magistrates' Association - North East Branch
North East Hampshire
North Sefton Bench
Northallerton and Richmond Bench
Oldham Bench
Magistrates' Association - Oxfordshire Branch
Plymouth District Magistrates' Bench
Reading Petty Sessional Area Bench
South East Wiltshire Bench
Sedgemoor Bench
Solihull Magistrates' Court
Southampton Magistrates' Courts
Magistrates' Association - South West Pennine Branch
St Helen's Bench
Thanet Magistrates
Wakefield Bench
Magistrates' Association - Wessex Branch
West Cornwall Bench
West Sussex Advisory Committee
Wycombe and Beaconsfield
Magistrates' Courts' Committees (MCC)
Bedford
Cheshire
Cleveland
Cumbria
Devon and Cornwall
Dorset
Durham
Essex
Greater London Magistrates' Courts' Authority
Gloucestershire
Greater Manchester
Gwent
Hampshire and Isle Of Wight
Hertfordshire
Hertfordshire MCC Selection Panel
Humberside
Kent
Lancashire
Leicester MCC Appointments Panel
Leicestershire
Lincolnshire
Merseyside
Norfolk
North Wales
North Yorkshire
Northumbria
Nottinghamshire
South Wales
Suffolk
Surrey
Thames Valley
West Mercia
West Midlands
Other Organisations
CAFCASS
Cheshire County Council
Cheshire Victim Support
Crown Prosecution Service
East Staffordshire Borough Council
H M Magistrates' Courts' Service Inspectorate
Humberside Police Authority
Institute of Legal Executives
Office of the Commissioner for Public Appointments
RoadPeace
South Yorkshire Police Authority
Wales and Chester Bar
Welsh Local Government Association
Individuals
Cllr. Peter Adams
Henry P Bee JP MA FCA
Douglas Bird
Mrs Carol Byng
John W Clarke
John Clucas
Nora Collett
Peter Collier QC
RJ Cox JP
Anthea Del Mar JP
G Foulds
Jane Gill
John Grant Jones OBE
Derek Hardy JP
Catherine Hodgson
His Honour Judge Richard Holman
Susan Izzard
EO Jefferson
Judith Kauntze JP
MB Lomas
Derek McKie JP BA(Hons)
Barbara Moorhouse
His Honour Judge R. Moss
Margaret Pate
Yvonne Powell
Mrs Christine Reay JP
Ian Robson
Peter Sherlock
Kate Siddall
Roger Smallwood JP
Jeremy Sutcliffe
PR Swanson JP
His Honour Judge Anthony Thorpe
Nina Towndrow
Patrick Traynor
Gillian Young JP