Title

Central and local government have been embroiled in a struggle over powers for years. John Smith looks at how his respective powers can be divided up in the criminal justice system, in particular the courts Over the past two years, the ground has shifted seismically in the issue of the balance of power between central and local government. After years of either supine acceptance or, at best, reluctant acquiescence in the growing strangulation by both central government and unelected bodies, local government is engaging in a vocal battle to return some of the powers stolen by the centre. Like a drunk on Special Brew, central government staggers erratically on, issuing increasingly bizarre diktats. Yet the arguments (if not the decisions) are, time and again, being won by local government. Despite rearguard actions by so-called modernisers (whose notions of modernisation appear stuck in the Beeching era), local policing and primary health care are now generally accepted – by most people with an IQ bigger than their shoe size and with no financial stake in the status quo – as essentially local government functions. Apart from the re-assertion of democratic control, fundamentally better and more joined-up services to communities and substantial savings with the unification of back-office functions, there will be additional savings with the disappearance of police authorities (with the exception of the special case of the MPA) and PCTs. Discussions on the re-integration of community policing into local government have inevitably led on to talks about other parts of the criminal justice system – the CPS and the probation service have already been the subject of debate (possibly to be followed by the prison system). But let us now consider the courts, magistrates and judges. There appear to be three strands of concern about the current arrangements when this subject is raised: The issue of courts administration is probably quite straightforward. Most of this function is a natural for integration with local government services, with real potential savings to be made. The key consideration is, as with police, health and all other transferable services, that proportionate resources follow the return to local government. The issue of magistrates is less straightforward. A possible solution would be the election of magistrates – provided (a problematic provision) that the political parties can be excluded from the equation and provided also that a system of proportional representation were to be used. There should also be more latitude allowed in addressing particular local concerns. The issue of judges is the most contentious of the three, so perhaps it ought to be broken down into three component parts – a taxonomy based on what a judge is and does: With all three categories of judges the underlying issue is professionalism versus accountability – as it is with any public service. The old system of appointing judges lacked just about any kind of transparency. The Judicial Appointments Commission is, of itself, a step in the right direction but not a complete answer. Underlying in all of this is a growing public unease at the way in which those who judge us come to be in a position to do so: The process will be similar to that for local authority chief officers. The objections floated to any of the above in initial discussions appear to centre around: As with police and health, local accountability for a large part of the criminal justice system does not mean local accountability for the High Court, the Court of Appeal or the Supreme Court, any more than it does for major crimes, counterterrorism or major acute health services. And remember – any time you go to Parliament Square you can see the Supreme Court squatting in the Middlesex Guildhall, ‘stolen' from local government by the centre! N.B. Because of different jurisdictions in Scotland and Northern Ireland, this article applies only to England and (for the time being) Wales. John Smith is chairman of Public Appointments Ltd The House of Commons is better out of it: A dislike of politicians should not obscure the fact that we can throw the scoundrels out – and, again, a dislike of MPs (hopefully passing) should not trump transparency.Won't the proposals result in a postcode lottery?: No. If you don't like something, the current default mode is the tabloid smear of ‘postcode lottery': transparency and localism have always had their enemies and always will.Won't local government interfere in the judicial process?: No – but the public will at least know what is going on. The relationship will be as with, say, education where there is local discretion (not enough?) but a national framework.Wouldn't it be expensive?: Properly handled, the changes would lead to substantial savings.If it ain't broke, don't mend it: Well, the system has been mended, several times, so let's not leave a job part-done.Our system is the envy of the world: Maybe if you are a libel or divorce tourist but debatable otherwise.The third category of judges: Clearly, the most difficult. As these judges can sometimes appear to be creating the law, it seems appropriate to modify the current system by any prospective judge at this level undergoing a hearing before a House of Commons select committee to ensure transparency – and robustness.The first and second category of judges: Consideration should be given to a transparent selection process, based on job description and person specification, by the local authority(ies) in whose areas they will be designated to work. Magistrates: As above, consideration should be given to election by proportional representation.Third category: The senior judges, including the High Court, the Court of Appeal and the Supreme Court, are those who appear sometimes to be making (over-creatively interpreting?) law.Second category: Many other judges try cases that can be dealt with either within a county area or grouped areas (such as the late metropolitan counties): county and Crown courts appear to fit into this category.First category: Many posts now called judge are, essentially, the old stipendiary magistrates given an upgrade or recently-invented specialist posts covering areas such as immigration. These could, like magistrates, be absorbed into local government, albeit with clearer central guidelines.Judges: the concern is that they are not only out of touch (an old chestnut) but, increasingly, making law (or possibly, interpreting it) over-creatively, depending on your point of view.Magistrates: the concern is that they are not representative of local communities and that central norms and targets override local priorities.Courts administration: the concern is that this is expensive and inefficient (a similar concern to that about the CPS and the probation service).

Title

Laws unto themselves?

SUBSCRIBE TO CONTINUE READING