Select Committee on Delegated Powers and Regulatory Reform Eighteenth Report

Annex 5


Supplementary Memorandum by the Lord Chancellor's Department

224.  Further to the memoranda from the Lord Chancellor's Department reported on by the Committee in its 2nd Report on 11 December 2002 and 14th Report on 19 March 2003, this supplementary memorandum covers Government amendments to clauses 2 and 10 and three new clauses (4, 5 and 15), as well as a new supporting Schedule to be inserted in the Courts Bill.


225.  Clause 2 re-models section 27 of the Courts Act 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.

226.  New subsections (4) and (8), which have been tabled as Government amendments, provides that contracting out, in respect of certain staff functions only, should be after the making of an enabling order, and subject to prior consultation with the Heads of Division. As in section 27 (5) of the 1971 Act, an order may authorise the contracting out of any functions (a) either wholly or to such extent as may be specified in the order (b) either generally or in such cases or areas as may be so specified; and (c) either unconditionally or subject to the fulfilment of such conditions as may be so specified. Currently, the Contracting Out (Administrative and other Court Staff) Order 2001, SI 2001/3698 provides for contracting out in relation to Supreme Court and county court officers and staff. As a result, the Lord Chancellor can contract with employment agencies for secretarial and casual staff; and can contract with specialist IT firms.

227.  This was thought suitable for delegated legislation. Orders under this clause will, like orders under the current law in section 27 of the Courts Act 1971, be subject to the negative resolution procedure, as a high level of parliamentary scrutiny is not considered necessary.


228.  A new clause 4 is included in the Government amendments tabled for the Report stage of the Courts Bill, providing for the establishment of courts boards. Subsection (2) provides, as the previous clause 4 had done, for the Lord Chancellor to specify the boards' areas by order. Subsection (4) is a new provision which empowers the Lord Chancellor to make orders altering the areas. Before doing so, he must consult any courts board affected by the proposed order. This will allow flexibility so that the boundaries can be amended, for example, in line with changes to the criminal justice areas, without the need for primary legislation. It will also ensure that there is local involvement in any decision to alter area boundaries. In a further change from the original clause 4, orders under the clause will be subject to the affirmative resolution procedure in the first instance, in recognition of concern expressed at Committee Stage that negative resolution did not permit appropriate Parliamentary scrutiny. Any orders altering areas subsequently will be subject to the negative resolution procedure.


229.  The Government has also tabled for Report an amendment introducing a new Schedule (Constitution and procedure of courts boards) containing provisions about the constitution and procedure of courts boards.

230.  Paragraph 3 provides that regulations may make provision in relation to the appointment of members of court boards, including in particular provision about the procedures to be followed in connection with appointments. Paragraph 4 provides that regulations may make provision as to the selection of one of the members of each courts board to be its chairman. Paragraph 5 provides that regulations may make provision as to the term of office of chairmen and members of courts boards and their resignation, suspension or removal. This will enable Parliamentary scrutiny of the detail of how the Lord Chancellor will exercise the power to appoint members to courts boards and the terms of their appointment.

231.  Paragraph 6 provides that regulations may make provision about the procedure of courts boards. This recognises concerns expressed at Committee that dealing with such matters in "guidance" afforded insufficient opportunity for parliamentary scrutiny.

232.  The regulations under this Schedule will be subject to the affirmative resolution procedure.


233.  New clause 5 provides that the function of courts boards is to scrutinise, review and make recommendations about the way in which the Lord Chancellor exercises his general duty. Subsection (5) provides for guidance about how the boards should carry out this function. Subsection (7) provides that the guidance must be laid before both Houses of Parliament.

234.  The matters that will be contained in the guidance are not considered appropriate for a statutory instrument but the new requirement that they must be laid before Parliament will ensure that there is appropriate parliamentary scrutiny.


235.  New subsection (4) of Clause 10 provides that rules may provide for the training which justices must undergo before exercising their powers in specified classes of proceedings. By a consequential amendment to clause 16, the rules will be made by the Lord Chancellor after consultation with the appropriate Rule Committees.

236.  Currently the Bill contains statutory powers by means of which the Lord Chancellor can, inter alia, set out training requirements that must be fulfilled before magistrates may be authorised to do youth and family work, and to preside in court. However, there is no statutory power enabling such training requirements to be set out in respect of other classes of proceedings, if needed - and, although it may be arguable that the Lord Chancellor could set out such requirements in his capacity as Head of the Judiciary, it would be preferable to clarify this point. Under the unified administration, it is intended that the current localised arrangements for training magistrates will be more consistent and will be subject to a stronger supervisory role from the Judicial Studies Board; this power will be consistent with that policy.

237.  It should be noted that a further proposed amendment to the Bill will oblige the Lord Chancellor to make arrangements to provide for any training prescribed by him under such rules.

238.  The Committee has accepted that delegated legislation is appropriate for the Bill's similar powers relating to presiding in court, youth work, and family work; training requirements are too detailed and fast-moving to be appropriate for primary legislation. (As described in the original memorandum, in the case of presiding in court the Bill simply replicates current powers. With youth and family the situation is slightly more complicated - some provision is set out in primary legislation, but much is set out in the Youth Constitution Rules 1954, and the Family Proceedings Courts Rules 1991, made respectively as though pursuant to the Children and Young Persons Act 1969, and pursuant to the Magistrates' Courts Act 1980. The Committee has accepted that this framework may appropriately be replaced by simpler legislation powers.)

239.  Such rules (as with the Bill's rule making powers relating to presiding in court, youth work, and family work) will be subject to the negative resolution procedure, as a high level of parliamentary scrutiny is not considered necessary.


240.  This new clause makes various provisions about the training and development of lay justices. Subsection (1) provides that rules (as above, made by the Lord Chancellor after consultation) may make provision about the training, development and appraisal of lay justices.

241.  Subsection (2) envisages that the main use of these rules will be to give statutory force to the role of Bench Training and Development Committees (BTDCs). BTDCs currently have various important roles in the training and development of magistrates, of which the key functions are covered in sub-section (2). There is currently no statutory backing for these roles, however, although some functions have nonetheless been covered by rules made under section 24 of the Justices of the Peace Act 1997 (Size and Chairmanship of the Bench).

242.  Delegated legislation is considered necessary as provision governing the training and appraisal of magistrates would involve too great a level of detail for primary legislation. The training and development framework for magistrates needs to change and evolve swiftly to reflect arising needs and issues.

243.  There is also provision in this clause to oblige the Lord Chancellor to ensure that training and that training materials are provided for lay justices.

244.  Such rules (as with the current Size and Chairmanship of the Bench rules) will be subject to the negative resolution procedure, as a high level of parliamentary scrutiny is not considered necessary. It is likely that a single set of rules will be made pursuant to clause 10 new subsection (4) (training courses), this new clause (training and appraisal) and clause 15(6) (chairmanship) and 15(7) (size of bench). Consistent parliamentary procedures are desirable: the Bill currently provides that rules made pursuant to clause 15(6) and (7) are subject to the negative resolution procedure.

April 2003

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