78.Section 27 provides for the Lord Chancellor to appoint and designate staff of the new courts agency to be justices’ clerks and assistants to justices’ clerks. A person cannot be designated as a justices’ clerk unless he or she meets the requirements of this section, which replicates section 43 of the JPA 1997. Section 27 empowers the Lord Chancellor to make regulations setting out the requirements that a person must fulfil if he or she is to be designated as an assistant to a justices’ clerk. Section 27 also allows the Lord Chancellor to enter into contracts for the provision of assistant clerks. The work of assistant clerks provided under such contracts would be limited to advising lay justices and would not extend to exercising the powers of a single justice, for which the assistant would require the specific authority of a justices’ clerk. This reflects current practice in the magistrates’ courts.
79.Section 27 places a duty on the Lord Chancellor to assign justices’ clerks to one or more local justice areas. It also empowers the Lord Chancellor to change a clerk’s assignment and move him or her to another area. However, before changing a clerk’s assignment, the Lord Chancellor must first consult the lay magistrates, via their bench chairman, assigned to the same local justice area as the clerk.
80.Section 28 re-models section 45 of the JPA 1997 on the functions and powers of justices’ clerks and assistant clerks. Currently section 144 of the MCA 1980 allows the Lord Chancellor to make rules which, among other things, regulate and prescribe the procedure and practice to be followed by justices' clerks. The Lord Chancellor currently makes rules on the advice of, or after consultation with the Magistrates’ Courts Rules Committee, but he will also now consult the Criminal Procedure Rule Committee and the Family Procedure Rule Committee before making rules about justices’ clerks under this section.
81.Section 29 makes the provision corresponding to section 48 of the JPA, which provides for the independence of justices’ clerks when giving legal advice or performing the functions of a single justice. It provides that when exercising such functions, justices’ clerks shall not be subject to the direction of the Lord Chancellor, (rather than JCEs, as under the JPA) or any other person or body. The section gives the same guarantee of independence to assistant clerks.