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These notes refer to the Courts Bill [HL] COURTS BILL [HL]
EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Courts Bill as brought from the House of Lords 20 May 2003. They have been prepared by the Lord Chancellor's Department in order to assist the reader of the Bill and to help inform the debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. OVERVIEW 3. The Courts Bill will primarily implement those of the key courts-related recommendations contained in Sir Robin Auld's Review of the Criminal Courts in England and Wales (October 2001, hereafter "the Auld Review") which the Government accepted, in the White Paper "Justice for All" published on 17th July 2002. It also makes provision for a number of other changes relating to judicial matters and to civil and family court procedure. 4. The explanatory notes are divided into parts reflecting the structure of the Bill. In relation to each Part, there is a "Summary". In relation to each group of clauses, there is a "Background" section. Commentary on particular clauses is then set out in number order, with the commentary on the various schedules included with the clause to which they relate. [Bill 112-EN] 53/2 5. The Bill is divided into 9 parts: Part 1: Maintaining the court system
Part 2: Justices of the Peace
Part 3: Magistrates' Courts
Part 4: Court Security
Part 5: Inspectors of court administration
Part 6: Judges
Part 7: Procedure rules and practice directions
Part 8: Miscellaneous
Part 9: Final Provisions
PART 1: MAINTAINING THE COURT SYSTEM SUMMARY 6. Part 1 of the Bill places a duty on the Lord Chancellor to provide an efficient and effective system to support the carrying on of the business of all the main courts in England and Wales, namely the Court of Appeal, the High Court, the Crown Court, the county courts and the magistrates' courts. This responsibility will be discharged, in practice, by a new executive agency, as part of the Lord Chancellor's Department, replacing the Court Service and the 42 MCCs. This agency will have local community links through courts boards, established under this part. BACKGROUND 7. At present there are separate arrangements for the management of the courts in England and Wales. The Court Service is responsible for the operation of the Supreme Court (comprising the Court of Appeal, the High Court of Justice - including the Probate Service - and the Crown Court), county courts and a number of tribunals. It is an executive agency (Next Steps Agency) of the Lord Chancellor's Department and has no autonomous legal existence. Its relative responsibilities and powers are defined solely by internal documents (most importantly its framework document). A Chief Executive, who is accountable to the Lord Chancellor and through him to Parliament, heads the Court Service. The Permanent Secretary of the Lord Chancellor's Department remains the Principal Accounting Officer. 8. The Crown Court and county courts are organised for administrative purposes into 6 circuits and 18 groups. A Circuit Administrator heads each circuit. Below circuit level, Group Managers are responsible for the Crown Court centres and county courts within their areas. Group boundaries are aligned to the 42 criminal justice system (CJS) areas. Court Service employees are civil servants. MCCs (established under Part 3 of the Justices of the Peace Act 1997) are responsible for the efficient and effective administration of the magistrates' courts within their areas. They are bodies corporate whose members consist primarily of local lay magistrates and persons co-opted by the committee or appointed by the Lord Chancellor. The body responsible for the magistrates' courts in the greater London area is known as the Greater London Magistrates' Courts Authority (GLMCA). The 42 MCC areas are aligned with the CJS areas, as are the areas covered by other criminal justice agencies. 9. MCCs receive 80% of their funding directly from the Lord Chancellor's Department; the remaining 20% comes from local authorities. Local authorities are required to provide accommodation, goods, services, salaries and other expenses necessary for the proper functioning of magistrates' courts and MCCs. The GLMCA owns its own estate and is its own paying authority i.e it is not funded through local authorities. MCCs employ staff on such terms as they think fit. 10. The Auld Review recommended that a single centrally funded agency, as part of the Lord Chancellor's Department, should replace the Court Service and the MCCs. In the White Paper Justice for All the Government accepted the recommendation for a single courts organisation and stated that an agency would have a strong local dimension and would "deliver decentralised management and local accountability within a national framework of standards and strategy direction". 11. The Bill does not set out a blueprint for the new agency, which will be designed in line with the Principles of Public Service Reform (published in 'Principles into Practice' by the Prime Minister's Office of Public Services Reform, March 2002). Although a centrally funded organisation directly accountable to the Lord Chancellor, the new agency will have a strong local dimension. The Bill provides for the establishment of courts boards, composed of people who understand the administration of the courts and others who can represent local interests in the area for which the board is responsible. They will include at least two magistrates and one judge. 12. The purpose of the boards is to ensure that the administration of the courts is focussed on the needs of court users and the local community more generally. COMMENTARY ON CLAUSES: PART 1 The general duty Clause 1: The general duty 13. This clause places the Lord Chancellor under a statutory duty to secure an efficient and effective administrative system, and other services (such as security or enforcement services), to support Supreme Court, county court and magistrates' court business, referred to in the Bill as the general duty. The Supreme Court is defined in the Supreme Court Act 1981 (SCA 1981), section 1(1), as the Court of Appeal, the High Court of Justice and the Crown Court. The day to day responsibility for the administration of the courts will be delegated to a new executive agency of the Lord Chancellor's Department, headed by a Chief Executive. 14. Clause 1 also provides that within 18 months of this clause coming into force, and annually thereafter, the Lord Chancellor must prepare and lay before both Houses of Parliament a report on the way he has discharged his general duty in relation to the courts, staff and accommodation. This will include information on the operations of the Agency itself. Court staff and accommodation Clause 2: Court officers, staff and services 15. Clause 2 re-models section 27 of the Courts Act 1971 (CA 1971), but covers staff for magistrates' courts as well as the Supreme Court and the county courts. It allows the Lord Chancellor to employ civil servants as court staff, so that he can discharge his duty of administering the courts and providing support services. Persons appointed under this section would be eligible to join the principal civil service pension scheme and would be eligible for "any other superannuation benefits" in the same way as other civil servants 16. This clause also allows the Lord Chancellor to enter into contracts with self-employed people or independent contractors, as appropriate for the purpose of discharging his general duty in relation to the courts. However, under clause 2 (6), contracting out in respect of officers and staff carrying out administrative work will only take place after the making of an enabling order (that is, a statutory instrument), and subject to prior consultation with the Heads of Division (the Lord Chief Justice, Master of the Rolls, President of the Family Division and Vice-Chancellor). While this clause does not permit the provision of judicial decision-makers to be contracted out, it does extend to those advising judicial decision-makers. Taken together with clause 27, this will allow the Lord Chancellor to enter arrangements for the provision of assistants to justices' clerks. Clause 3: Provision of accommodation 17. Clause 3 re-models section 28 of the CA 1971 and reflects the Lord Chancellor's additional responsibility for magistrates' courts. Subsection (1) places a duty on the Lord Chancellor to provide, equip, maintain and manage court accommodation. Subsection (2) allows the Lord Chancellor to enter into arrangements with others. Court land will, in practice, be held by the First Secretary of State (Deputy Prime Minister) (who already holds court land, other than for magistrates' courts), with whom the Lord Chancellor will enter into appropriate arrangements. The Lord Chancellor's powers will be exercised on his behalf by the new executive agency. Subsection (4) defines the term "court-house". Courts boards Clause 4: Establishment of courts boards 18. Clause 4 requires the Lord Chancellor to set up courts boards (the functions of which are set out in clause 5). The clause obliges the Lord Chancellor to define the geographical area for which they are responsible by order. It obliges him, in defining the areas, to have regard to the desirability of ensuring coterminosity with the non statutory "criminal justice areas", which are based on areas defined in the Police Act 1996. It provides that the names of each courts board area will be specified in the order. It allows the Lord Chancellor to make orders altering the areas, but it requires that the Lord Chancellor consult with an affected courts board before an amending order is made. It provides for a Schedule that sets out the constitution and procedure of courts boards, including the categories of membership of the courts boards. Schedule1: Constitution and Procedure of courts boards 19. This Schedule provides for the constitution and procedure of courts boards. Members are to be appointed by the Lord Chancellor. Minimum membership will consist of at least one judge; at least two magistrates; at least two other members who have knowledge of the courts in their area; and at least two members who appear to be representative of local people in the area. It provides for regulations to be made by the Lord Chancellor in relation to the appointment of members, in particular the appointments' procedure; the selection of a chairman from among the board members; the term of office of board members and their resignation, suspension or removal; the procedure of boards, including quorum; and the validation of proceedings in the event of removal, a vacancy or defect in appointment. 20. This Schedule also enables the Lord Chancellor to make appropriate payments of expenses or remuneration. Clause 5: Functions of Courts Boards 21. Clause 5 requires each courts board to scrutinise, review and make recommendations about how the Lord Chancellor is fulfilling his general duty. It specifies that Courts Boards will, in particular, consider draft and final business plans for their area. It requires that the Lord Chancellor issues the courts boards with guidance about how they should carry out their functions, including the procedures to be followed in considering draft and final business plans. This guidance must be laid before both Houses of Parliament. The Lord Chancellor must give due consideration to their recommendations. If the Lord Chancellor rejects a courts board's recommendations on its final business plan he must give to them his reasons for doing so in writing. Abolition of magistrates' courts committees Clause 6: Abolition of magistrates' courts committees etc. 22. Since the Lord Chancellor will take over responsibility for the magistrates' courts, there will no longer be a need for the MCC, which perform this function at the moment. Clause 6 provides for their abolition. It also abolishes the Greater London Magistrates' Courts Authority, which is the MCC for Greater London. Clause 6 also gives effect to Schedule 2, which provides for the transfer of MCC staff and property. Schedule 2: Abolition of magistrates' courts committees: transfers 23. Schedule 2 sets out the arrangements for the transfer of staff from MCCs and local authorities to the employment of the Lord Chancellor. It also enables the Lord Chancellor to make schemes transferring property, rights or liabilities from MCCs, local authorities and others to him or another Minister of the Crown. 24. Paragraph 11 applies Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794) (TUPE) without restriction to MCCs and will effect the transfer of MCC employees into the employment of the Lord Chancellor. Paragraph 12 applies to local authority staff. A "substantial part' in 12(2)(b) will include staff spending the greater part of their time on MCC duties during the course of a year. However, the ultimate decision as to whether to transfer such an employee is for the Lord Chancellor. It is intended that in practice any transfer would be subject to consultation with the individuals affected. Paragraph 14 provides that any MCC or local authority staff who are regarded as 'aliens' will still be eligible to transfer into the employment of the Lord Chancellor. An 'alien' in this context can be defined as a person who is precluded from employment in the civil service by existing legislation i.e. nationals of non-EC or non-EFTA states. PART 2: JUSTICES OF THE PEACE SUMMARY 25. Part 2 of the Bill contains a range of provisions relating to lay justices, District Judges (Magistrates' Courts), justices' clerks and administrative staff working in the magistrates' courts. Some clauses make similar provision as Part II of the Justices of the Peace Act 1997 (JPA 1997), while many other clauses reproduce the effect of provisions in that Act, with minor adjustments and improvements. The most significant change is to give lay magistrates a national jurisdiction. BACKGROUND The commission of the peace and local justice areas 26. England and Wales are currently divided into commission areas and petty sessions areas (under sections 1-5 of JPA 1997). The commission area is the unit on which the appointment of lay magistrates and the jurisdiction of the magistrates' courts to hear summary cases is based. Magistrates are appointed to a particular commission area, on the basis of the place where they reside; and most summary offences must be tried in the commission area where the alleged offence took place. Commission areas are divided into one or more petty sessions areas. Petty sessions areas are the areas to which magistrates are assigned by the Lord Chancellor (although this currently happens outside the statute). These are the "benches", the basic unit of local magistrates' court organisation. 27. The Bill abolishes commission areas and replaces petty sessions areas with "local justice areas". Lay magistrates will be appointed for England and Wales. This, coupled with changes in Part 3 of the Bill, will have the effect of giving magistrates a national jurisdiction. The Lord Chancellor will, however, be placed under a statutory duty to assign magistrates to a local justice area. This will preserve the bench system in statute. When the Bill comes into effect, the local justice areas will be set up to be the same as petty sessions areas were immediately previously. Subsequently, the pattern of areas may be varied by order, following suitable consultation. Places, dates and times of sittings 28. Section 153 of the Magistrates' Courts Act 1980 (MCA 1980) declares that a magistrates' court may sit on any day of the year, including a Sunday, Good Friday and Christmas Day. It is for the magistrates' court to decide when it shall sit, although in practice, magistrates' courts do not normally sit on Sundays. There are restrictions on where magistrates' courts can sit and the powers of magistrates can vary depending on whether they are sitting in a petty sessional courthouse (s.150(1) MCA 1980) or an occasional courthouse (s.147 MCA 1980). The Bill permits the Lord Chancellor to determine when and where magistrates' courts are to sit. This will introduce greater flexibility than the current arrangements and give magistrates full powers wherever they sit. Justices' clerks 29. Magistrates, who are not qualified lawyers, hear most cases in magistrates' courts. They rely on the legal advice of justices' clerks and their assistants, often known as "legal advisers". Justices' clerks and their assistants can also exercise the powers of a single justice of the peace in certain circumstances. Justices' clerks are vital to the administration of justice in magistrates' courts. 30. At present, under section 42 of the JPA 1997, justices' clerks are appointed by an MCC to a particular petty sessions area, following the approval of the Lord Chancellor. MCCs are required by section 42(6) to consult local magistrates on the appointment or removal of justices' clerks in certain circumstances. MCCs also have the power to designate assistants to justices' clerks under section 44(3) of the JPA 1997. 31. When exercising any legal function, justices' clerks are not subject to the directions of a justices' chief executive (JCE) or any other person or body, by virtue of section 48 of the JPA 1997. Assistant clerks may only be subject to the directions of justices' clerks. 32. This Bill provides that in future the Lord Chancellor will have the power to employ appropriate court staff, including justices' clerks and their assistants who must be specifically designated as such. The Bill retains the statutory qualifications for justices' clerks and assistants and confirms their independence when exercising any legal function. It also places a duty on the Lord Chancellor to assign justices' clerks to one or more local justice areas. Fines Officers 33. The Bill includes provisions to create the role of fines officer and to introduce a range of new sanctions to improve the effectiveness of fine enforcement. 34. At present, performance in enforcing payment of fines is poor. Much of the work involved in enforcing fines is reserved to magistrates, including tasks that are essentially administrative in nature. The range of incentives and sanctions available to the courts are limited. Courts are constrained by legislation in the approach they can take to enforcing payment of fines and other financial penalties imposed after criminal proceedings. 35. The Bill creates the role of "a fines officer" to take enforcement action in certain circumstances, thus removing the need for all enforcement decisions to be taken by a court. A fines collection system has been set up which introduces financial incentives to offenders to pay their fines, as well as providing a range of new disincentives for fine default. The system is designed to encourage payment but will include new penalties for those who have the means and will not pay. 36. The Bill provides for the new system to be piloted and, if necessary, modified before a permanent scheme is introduced. The intention is to ensure that fines are seen as credible and effective punishments. Designated officers and magistrates' courts 37. Currently each MCC must appoint a JCE with the approval of the Lord Chancellor, to manage the magistrates' courts in its area. The primary function of JCEs is to make arrangements for the efficient and effective administration of the magistrates' courts. JCEs must perform all of their statutory duties in accordance with directions given by the relevant MCC. 38. JCEs are responsible for a wide range of administrative matters. Section 90 of the Access to Justice Act 1999 (AJA 1999) amended a large number of earlier Acts so as to transfer to JCEs administrative functions previously assigned to justices' clerks. As there will be no equivalent statutory post to the JCE in the new courts agency, this Bill provides for former JCE functions to be carried out by an officer designated by the Lord Chancellor. Application of receipts of magistrates' courts etc. 39. Magistrates' courts are responsible for collecting fines, fees and other financial orders on behalf of central Government and compensation orders on behalf of victims of crime. Section 60 of the JPA 1997 makes provision for the application of receipts by JCEs. The Bill makes similar provisions, amended to reflect the fact that the designated officer, rather than the JCE, will be responsible for collecting such sums. COMMENTARY ON CLAUSES: PART 2 The commission of the peace and local justice areas Clause 7: The commission of the peace for England and Wales 40. This clause replaces the provision contained in sections 1 and 3 of the JPA 1997, for the issue of commissions of the peace to each commission area. As commission areas are abolished by the Bill, however, the statute has been modified accordingly. The clause refers to a single commission of the peace, which will cover England and Wales, in place of the current 49 separate commissions. 41. The clause restates the provision that the commission is to be issued under the Great Seal, and that it shall be addressed generally rather than to individual justices. Clause 8: Local justice areas 42. Clause 8 places a duty on the Lord Chancellor to divide England and Wales into areas to be known as local justice areas and gives him the power to make orders altering such areas. Before making such an order the Lord Chancellor must consult magistrates assigned to an area affected by the changes, and any local councils and courts boards similarly affected. This clause, in effect, makes the same provision as parts of sections 4, 33 and 34 of the JPA 1997 (which is repealed under Schedule 8), but changes the name 'petty sessions areas' to local justice areas. The name 'local justice area' is considered to be a more modern and more appropriate title for these areas. An initial order setting up local justice areas will simply be laid in Parliament and will not be subject to the negative resolution procedure, on the basis that it will simply be renaming petty sessions areas as local justice areas and will not change any boundaries. Subsequent orders altering areas will be subject to negative resolution. 43. Schedule 7 contains a number of consequential amendments. References to petty sessions and commission areas within legislation can have the effect of geographically linking particular cases to the area specified. Where possible this link is to be removed from statute and directions issued by the Lord Chancellor, with the concurrence of the Lord Chief Justice, will detail where cases should be heard following the removal of the link. The directions, made under powers contained in clause 30, will reflect the policy that whilst in general cases will be heard in the local justice area in which the offence was committed, or where the issue to be addressed is located, other factors will also be liable to be taken into account. These considerations will include the availability of court resources and the whereabouts of victims or other interested parties, including defendants and witnesses. |
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