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Access to Justice Act 1999

Commentary

Justices’ chief executives, justices’ clerks and staff

298.Section 87: Qualification for appointment as chief executive. This section, by repealing section 40(5) of the JPA 1997, removes the requirement for a justices’ chief executive (JCE) to be a qualified barrister or solicitor. The intention is to enable MCCs to attract the best possible applicants, including specialists in management and administration. The provision does not compel MCCs to appoint a person who is not a qualified lawyer.

299.Section 88: Role of chief executives. This section substitutes a new section 41 of the JPA 1997. The new section 41 clarifies the role and responsibilities of JCEs in ensuring the effective and efficient administration of the magistrates’ courts within the area of their MCC, and the lines of accountability between the MCC, JCE and other employees of the MCC.

300.The JCE is responsible for making arrangements for the effective and efficient administration of the magistrates’ courts in an MCC area. He or she will allocate responsibilities to staff and determine administrative procedures. The allocation of duties and determination of procedures has previously been the duty of the MCC itself (under section 31(2) of the JPA 1997, repealed by section 88(2) of this Act). The JCE will be required to carry out his or her functions in accordance with any directions given by the MCC. The JCE will be able to give directions to justices’ clerks and other staff about how they should carry out their administrative functions; but this power does not extend to legal functions (see the commentary below on section 89).

301.Section 88 also amends two other sections of the JPA 1997. Subsection (3) amends section 40 to clarify certain expressions used in relation to JCEs in Schedule 13 of this Act. Subsection (4) amends section 61 to allow the Lord Chancellor to pay compensation in cases of default by a JCE.

302.Section 89: Independence of clerks and staff exercising legal functions. This section confirms the independence of justices’ clerks in the exercise of their legal and judicial functions.

303.Section 89(1) substitutes a new section 48 of the JPA 1997 to clarify the range of functions in respect of which the justices’ clerks are not subject to direction by the JCE or anyone else. The new section 48 applies to:

  • any function also exercisable by magistrates (see paragraph 254 above); and

  • the function of advising magistrates about the law.

304.The new provision is wider than the original section 48 in two respects. First, it covers judicial functions conferred on justices’ clerks directly by statute, while the current section applies only to functions exercisable by a single justice delegated to justices’ clerks or other staff by rules. Second, it is not limited to legal advice about individual cases.

305.Section 89(2) amends sections 45(4) & (5) of the JPA 1997 to make clear that advice about the law includes matters of legal procedure and practice.

306.Section 90/Schedule 13: Transfer of clerks’ functions to chief executives.Section 90 gives effect to Schedule 13 which amends a large number of earlier Acts so as to transfer to JCEs administrative functions imposed by those Acts on justices’ clerks. Section 90 also empowers the Lord Chancellor to transfer to JCEs, by order, any other administrative functions that may be identified in future. The intention is to facilitate the greater separation of responsibilities for legal and administrative functions in magistrates’ courts, enabling justices’ clerks to concentrate on their legal and judicial functions.

307.Section 91: Accounting etc. functions of chief executives. This section deals with the collection, banking and disposal of, and accounting for, monies received by JCEs. It introduces a new section 41A to the JPA 1997, so as to transfer the functions of justices’ clerks as “collecting officers” to JCEs. In future, JCEs will be accountable for the collection of fines and fees.

308.In order to raise the standards of accounting practice and financial management in magistrates’ courts, section 91 introduces new accounting requirements in respect of all monies passing through magistrates’ courts, irrespective of to whom they are payable. It adds a new section 60A to the JPA 1997, giving the Lord Chancellor power to make regulations in three areas. The first relates to the times and manner in which JCEs must pay monies, due to the Lord Chancellor or anyone else. The second relates to the keeping, production, inspection and audit of the accounts of JCEs in respect of any money they receive (apart from their salaries and expenses). The third relates to the banking arrangements which may be used by JCEs.

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