House of Lords
Session 2002 - 03|
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|Courts Bill [HL]|
These notes refer to the Courts Bill [HL]
COURTS BILL [HL]
1. These explanatory notes relate to the Courts Bill [HL] as introduced in the House of Lords on 28th November 2002. 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.
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.
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
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 Magistrates' Courts Committees (MCCs). This agency will have local community links through Court Administration Councils, established under this part.
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 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 boundaries of police 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 is its own paying authority and owns its own estate. 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. 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 court administration councils, composed of people who understand the administration of the courts and others who can represent local interests in the area for which the council is responsible. They will include at least one magistrate and one judge.
12. The purpose of the councils 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. 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 Bill coming into force, the Lord Chancellor must prepare and lay before both Houses of Parliament a report as to the business of the Supreme Court, county courts and the magistrates' courts.
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.
16. This clause also allows the Lord Chancellor to enter into arrangements for the provision of court staff with self-employed people or independent contractors, as appropriate for the purpose of discharging his general duty in relation to the courts. While this clause does not extend to judicial decision-makers, it does extend to those advising judicial decision-makers. Taken together with clause 22, 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) gives the Lord Chancellor power 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.
Court administration councils
Clause 4: Establishment of court administration councils
18. Clause 4 requires the Lord Chancellor to set up court administration councils (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 defines the membership of the councils. It obliges the Lord Chancellor to provide councils with guidance about how they should organise themselves and how they should go about providing him with recommendations.
Clause 5: Role of court administration councils
19. Clause 5 requires each court administration council to provide the Lord Chancellor with its recommendations; and makes it clear that the remit of the councils is local court services.
Abolition of magistrates' courts committees
Clause 6: Abolition of magistrates' courts committees etc.
20. Since the Lord Chancellor will take over responsibility for the magistrates' courts, there will no longer be a need for the Magistrates' Courts Committees, 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 1, which provides for the transfer of MCC staff and property.
Schedule 1: Abolition of magistrates' courts committees: transfers
21. Schedule 1 contains provisions to facilitate the transfer of the magistrates' courts estate and other property. Schedule 1 provides that the Lord Chancellor may make a property transfer scheme to transfer any property, rights and liabilities of MCCs, local authorities and others in connection with the magistrates' courts to the Lord Chancellor or another Minister. Land will in fact be transferred to the Deputy Prime Minister, who will make arrangements with the Lord Chancellor. The details of the transfers will be contained in the property transfer scheme.
22. The schedule overrides any provisions of whatever nature that might prevent, penalise or restrict the transfer. It provides for just compensation to be paid to third parties whose rights are affected by other provisions in this schedule and provides that a certificate issued by the Lord Chancellor will be conclusive evidence that particular property has (or has not) been transferred.
23. Paragraph 9 of Schedule 1 makes provision for the Lord Chancellor to make a scheme for the staff currently employed by MCCs to transfer across to his employment. Staff will need to be an "eligible employee" as set out in paragraph 9(4), which also includes local authority staff, some of whom spend a substantial proportion of their time on MCC work. It is anticipated that only those local authority staff who spend a substantial proportion of their time on MCC work will transfer to the new agency. Property transfer schemes under paragraph 1 can also transfer to the Lord Chancellor liabilities in relation to staff, but those in respect of contracts of employment are limited to costs associated with dismissals before transfer (paragraph 2)
24. An employee transferring to the new Agency will transfer on existing terms and conditions. There will be no break in the continuity in employment. Paragraph 9(7)(c) obliges the Lord Chancellor, in any scheme made, to take over duties and liabilities of the previous employer under or in connection with the contract of employment. If an employee does not want to transfer to the new Agency, his/her contract of employment will be terminated immediately before the transfer takes place (sub-paragraph (8)). If an employee is not transferred for any other reason then he/she is treated as dismissed. This ensures that statutory rights arising on dismissal are retained (sub-paragraph (9)).
25. Paragraph 9(11) protects the rights of employees transferred to the new agency against a substantial and detrimental change in their working conditions. This excludes the change in employer, unless the employee can show that such a change is significant and to his or detriment.
26. Paragraph 10(1) provides that transfer scheme may exclude pension provisions. All staff transferring to the new agency will have the opportunity to join the Principal Civil Service Pension Scheme (PCSPS), but this may not happen at the time the transfer takes place. This is because incorporating staff from 42 MCCs and the Court Service into a single organisation will require a significant exercise in rationalisation of terms and conditions.
PART 2: JUSTICES OF THE PEACE
27. Part 2 of the Bill contains a range of provisions relating to justices of the peace, District Judges (Magistrates' Courts), justices' clerks and administrative staff working in the magistrates' courts. Some clauses make exactly the same 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.
The commission of the peace and local justice areas
28. England and Wales are currently divided into commission areas and petty sessions areas. 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.
29. This Bill replaces both commission areas and petty sessions areas with a single new area, the "local justice area". Lay magistrates will be appointed to a single commission of the peace 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
30. The 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 or an occasional courthouse. This 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.
31. 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.
32. At present justices' clerks are appointed by an MCC to a particular petty sessions area, following the approval of the Lord Chancellor. MCCs are required 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.
33. When exercising any legal function, justices' clerks are not subject to the directions of a justices' chief executive or any other person or body. Assistant clerks may only be subject to the directions of justices' clerks.
34. 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. Justices' clerks will no longer be appointed to a particular local justice area. However in keeping with the present position of justices' clerks the Bill provides that justices' clerks and their assistants are independent when performing any legal function.
35. 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.
36. 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.
37. 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. For those who are genuinely unable to pay, the government expects to propose making alternative sentences (such as unpaid work) available at the courts.
38. 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
39. Currently each MCC must appoint a justices' chief executive (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.
40. 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.
41. 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. This 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
42. 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 this 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.
43. 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
44. 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 Administration Councils 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 7), 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.
Schedule 6: Minor and consequential amendments
45. Schedule 6 contains a number of consequential amendments. References to petty sessions 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 25, 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.
|© Parliamentary copyright 2002||Prepared: 29 November 2002|