Courts Act 2003 ("CA 2003") Sections 28 and 29: Legal Advice
Paragraph 26 substitutes new sections 28 and 29 for previous sections 27 to 29 of the CA 2003. Current section 27 sets out how a justices’ clerk may be appointed and designated, the qualifying criteria necessary to be appointed as such, and provisions dealing with the appointment to a local justice area. The new sections follow a similar approach to new section 31O MFPA 1984 (above) by setting out provisions relating to the authorisation and independence of those staff who will provide legal advice.
	New section 28 of the CA 2003 replaces the current provision for legal advice given to justices of the peace to be provided by justices’ clerks so that the function of giving legal advice is instead exercised by a person authorised by the Lord Chief Justice (or his nominee). Authorised persons giving legal advice must be members of court and tribunal staff and have such qualifications as are prescribed in regulations (subject to the negative resolution procedure) made by the Lord Chancellor with the agreement of the Lord Chief Justice (section 28(3)).
	The Lord Chief Justice may nominate one or more judicial office holders or members of court or tribunal staff to carry out his authorisation functions (section 28(5)). Independence is ensured for nominees who are members of court or tribunal staff by providing that when carrying out this authorisation function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice (section 28(6)).
	New section 29(1) to (4) provides for a person authorised to exercise functions under new section 28(1) to be subject only to the direction of the Lord Chief Justice or his nominee. Subsection (2) specifies that, apart from such directions, authorised persons are not subject to the direction of the Lord Chancellor or any other person. Under subsection (3), the Lord Chief Justice may nominate one or more judicial office holders or members of court or tribunal staff to carry out his direction functions. As with the authorisation function, independence is ensured for those nominees who are members of court or tribunal staff by providing that when carrying out this direction function they are subject only to the direction of the Lord Chief Justice or a judicial officer holder nominated by the Lord Chief Justice (subsection (4)).