The Police and Social Responsibility Act 2011 abolishes "Police Authorities" and creates Police and Crime Commissioners. A judge may not become a Commissioner but what of a lay Magistrate? Judges are formally disqualified under the 2011 Act but lay magistrates are not - (see section 66). Parliament could easily have excluded them had it so wished.
Enter the Senior Presiding Judge - Lord Justice Goldring. He has issued what is described as "guidance" to magistrates who may be considering standing for election as a Police and Crime Commissioner (PCC), or are planning to take part in a PCC election campaign, or who intend to apply to become a member of a Police and Crime Panel.
See The Telegraph 9th August 2012 and also The Guardian 9th August.
On any reading, this does not look like guidance. Despite the absence of a statutory prohibition on a magistrate standing for election, Lord Justice Goldring stated - "I have decided that it is not permissible for magistrates to stand for election as PCCs. ...." (My emphasis). "Magistrates who wish to stand for election, upon announcement of their intention to do so, should resign immediately."
This is a command which brooks no argument. Now, it has to be accepted that the guidance does say "should" resign immediately but that begs the inevitable question - "What if one chooses not to resign." Time will tell whether this is ever put to the test.
Rather complicated procedures are in place with regard to handling of complaints against and removal of magistrates - see Office for Judicial Complaints - here and also here for examples of where the power to remove or discipline has been exercised. Disciplinary powers in relation to the judiciary are contained in the Constitutional Reform Act 2005 Part 4 Chapter 3.
When someone states that "I have decided ..." the reaction of the lawyer (and the responsible citizen) is to ask "On what legal basis ..." Quo Warranto ! (See Tony Benn's Five Powerful Questions). It is the Lord Chief Justice who is President of the Courts of England and Wales and also Head of the judiciary - Constitutional Reform Act 2005 s.7. The Lord Chief Justice is clearly able to issue material to guide the judiciary on matters of conduct. Such a power would be inherent in his role though the boundaries of any such power are indistinct. It is, of course, highly likely that the Senior Presiding Judge will have only issued this guidance ("command") with the agreement of the Lord Chief Justice though the guidance does not actually indicate any such agreement. Furthermore, the guidance does not indicate the source of the power to issue the guidance (the "vires") and there is no mention of any consultation process having taken place.
As for the merits of the guidance; it is perfectly clear that the election process for the Commissioners will be a highly political affair. Similarly, what they do in the role if elected will, from time-to-time, prove to be controversial. There is potential for serious conflict with judicial impartiality. In such cases, the guidance is probably supportable. Views to the contrary are welcome.
Election day for 41 Police and Crime Commissioners is set for 15th November 2012 - see Home Office. Whether the public actually want this reform is a moot point - BBC 18th June 2012.
Possibility of Judicial review:
According to an article in The Guardian 10th August, a cross-party group of magistrates, who are also police commissioner candidates, is preparing to launch a high court challenge to the "guidance." The precise legal basis for any such challenge is unclear at this stage.
Four official PCC candidates, including the Conservatives standing in Kent and Surrey, wrote to Lord Justice Goldring challenging his ruling. The letter, organised by Mervyn Barrett, an independent candidate in Lincolnshire, accused the senior presiding judge of "usurping the role of parliament" in issuing what amounts to a directive, and doing it without consultation.
"Should your lordship feel unable to meet with us or reconsider your decision we will be left with no choice but to urgently consider whether or not to seek permission to challenge your decision by way of an expedited judicial review," the candidates wrote.
The text of the guidance is reproduced below:
THE RT. HON. LORD JUSTICE GOLDRING POLICE AND CRIME COMMISSIONERS
This guidance is for magistrates who may be considering standing for election as a Police and Crime Commissioner (PCC), are planning to take part in a PCC election campaign, or who intend to apply to become a member of a Police and Crime Panel.
PCCs are required by statute to set local police priorities. They will set the relevant Police Force’s budget and ultimately hold the Chief Constable to account, as well as having the ability to dismiss Chief Constables when necessary.
The first elections of PCCs will take place on 15 November 2012. One PCC will be elected for each Police Force area in England and Wales outside London. Selection processes for potential candidates are now underway. During the campaign candidates will be required to set out political positions on a range of crime and policing issues, including strategic policing priorities.
The Police Reform and Social Responsibility Act 2011 sets out the requirements for election to PCC roles. The Act disqualifies judges from election as a PCC, by virtue of their disqualification under the House of Commons Disqualification Act 1975. Therefore, no judge can hold office as a Police and Crime Commissioner. However, the Act does not prohibit magistrates from standing for election as a PCC.
Although not disqualified by statute, I have decided that it is not permissible for magistrates to stand for election as PCCs. Magistrates who wish to stand for election, upon announcement of their intention to do so, should resign immediately. During the election campaign, former magistrates should be highly circumspect when describing their bench careers.
Should magistrates wish to participate actively in a campaign for the election of a PCC they should take leave of absence to do so, and avoid behaviour which could risk bringing the judiciary into disrepute. Magistrates should also refrain from holding meetings with candidates standing for election. While many people standing for election may not be party affiliated, the election itself and role upon appointment is likely to be highly political. Further, it would be inappropriate for a judicial office holder to hold an office which has an oversight and leadership role in respect of Police Forces, or to participate in an election campaign for such a role.
Police and Crime Panels
In October 2012, Police and Crime Panels are being introduced in every Force to scrutinise the actions and decisions of PCCs. Panels will support and challenge the commissioners in the exercise of their functions.
Because of their very nature, it is not appropriate for magistrates to be full or co-opted members of Police and Crime Panels. Magistrates who wish to become members of Police and Crime Panels should resign before doing so.
Senior Presiding Judge
***** Further Guidance dated 10th August *****
POLICE AND CRIME COMMISSIONERS
Given that several serving magistrates were selected as candidates before the guidance and appreciating that the elections will be in November, it seems to me appropriate in respect of the present elections not to press the following part of the guidance. Provided a magistrate undertakes not to sit from the time of his/her selection as a candidate, and to resign if elected, he/she may resume sitting if not elected. In other words, in respect of the present elections, it will not be necessary to resign upon announcing an intention to stand. No doubt those magistrates seeking election will conduct themselves in such a fashion as not to compromise their ability to return to their Bench as an independent and impartial member of the judiciary.
I make it plain too, that although discussed and approved by the Magistrates’ Liaison Group (on which magistrates are represented), I am always prepared to discuss the terms of the guidance in due course with any magistrates who remain concerned.
Lord Justice Goldring 10 August 2012