Select Committee on Delegated Powers and Regulatory Reform Twenty-Sixth Report

Annex 1


Further supplementary memorandum by the Department for Constitutional Affairs

This memorandum is supplementary to those already provided to the Committee, and relates to amendments tabled to the Courts Bill in Committee in the House of Commons, and debated on 10 July 2003.

Clause 97

1.  This clause contains two order making powers, which were formerly contained in clause 31 of the Bill as introduced to the House of Lords. The following explanation of the powers (paragraphs 2-7) is taken from the memorandum to the Committee in November 2002, which the Committee reported on and agreed on 11 December (HL Paper 20).

2.  The first order making power, under subsection (5) is necessary to enable the fine enforcement measures set out in Schedules 5 and 6 to the Bill to be piloted. Subsection (5) empowers the Lord Chancellor to bring into effect the provisions of Schedules 5 and 6 to the Bill in relation to one or more local justice areas. Subsection (6) stipulates that an order under subsection (5) may make provision for modifying Schedules 5 and 6 or any enactment in connection with Schedules 5 and 6 in relation to the specified local justice areas.

3.  The enforcement measures are a radical departure from existing practice, and the intention is to pilot different elements of the package in different areas so that their effectiveness in improving the payment rate can be assessed (for example, an increase for default may be piloted in one area; wheelclamping or registration of the debt as sanctions for defaulters may be piloted in another. The pilots will also be used to assess the best means of providing help to those having difficulty in meeting their repayment terms).

4.  It is not considered that the detail, of which part of the scheme is to be piloted in which particular local justice area(s), would be in any way contentious and would only be applying different parts, or the whole, of the legislation in Schedules 5 and 6. Therefore it is not necessary for this to be contained in primary legislation or be subject to affirmative resolution.

5.  The proposal is for the power to be subject to negative resolution because a high level of parliamentary scrutiny is not considered necessary for the kind of detail and flexibility involved in establishing the pilots.

6.  The second order making power, under Clause 97 subsection (7), is intended to be used once the pilot schemes established under subsections (5) and (6) have been evaluated. Subsection (7) provides that the Lord Chancellor may bring Clause 97 and Schedules 5 and 6 into effect in all local justice areas and indefinitely (i.e. to facilitate national implementation). Subsection (9) allows the Lord Chancellor, when making an order under subsection (7) to make such amendments to the provisions of Schedules 5 and 6 and any other enactments as appear appropriate in the light of the pilot schemes. The power is necessary to ensure that the fines package and the scheme to discharge fines by unpaid work can be modified in the light of experience, so that the enforcement measures which are implemented nationally are both practicable and effective.

7.  Given the possibility that the provisions of the primary legislation in Schedule 2 may require modification, it is considered appropriate that any order made under subsections (7) to (9) should be subject to affirmative resolution of Parliament.

Schedule 5, Paragraph 45

8.  Paragraph 45 of Schedule 5 allows the Lord Chancellor to make regulations for the purpose of giving effect to the attachment of earnings orders as to be used in accordance with Schedule 5, and to allow for regulations to be made for the calculation of the amounts to be deducted from pay. This power is necessary to allow the new attachment proposals to operate with the existing legislation on attachment orders e.g. currently an attachment order can only be imposed on default, the new scheme would be looking to apply them at the outset where an offender has previously defaulted on another fine. The power would only be used for the operation of the pilots. Once the scheme is tested any final amendments to existing legislation will be put before Parliament for affirmative resolution.

9.  It is considered that negative resolution is appropriate in this instance as the power is only to be used for the duration of the pilots, to facilitate the operation of Schedule 5 with the existing legislation and any permanent alteration of the existing legislation will be subject to affirmative resolution by virtue of Clause 97(7) and (9).

Schedule 6, Paragraph 1(2)

10.  Paragraph 1(2) of Schedule 6 provides for the Lord Chancellor to make regulations to set the "prescribed hourly sum" which will determine the rate at which the work set by a work order will discharge the fine imposed on the offender. Paragraph 3(3) provides that the number of hours of work that an offender must perform is to be determined by dividing the amount of the fine by the prescribed hourly sum and rounding up to the nearest whole number.

11.  Delegated legislation is considered appropriate for setting this sum, as a provision governing the rate at which fines are to be discharged through work would appear to involve too great a level of detail for primary legislation. Also, the prescribed hourly rate will be subject to frequent review and could require regular amendment. This could involve a significant and inappropriate use of parliamentary time if the sum was to be set by primary legislation.

12.  The Bill provides that these regulations will be subject to negative resolution, as the negative resolution procedure is thought to provide an appropriate level of parliamentary scrutiny.

Schedule 6, paragraph 8(5)

13.  Paragraph 8(5) of Schedule 6 provides for the Lord Chancellor to make regulations to enable the fines officer to issue a summons for the purpose of ensuring that the offender attends the court when an application has been made under paragraph 8(1) or (2). An application is made by the fines officer to the court under paragraph 8(1) that the offender is failing or has failed to comply with a work order without reasonable excuse. An application under paragraph 8(2) is similarly made where the offender has so failed, but has a reasonable excuse; or where a change in the offender's circumstances means that he is unlikely to be able to comply with the work order.

14.  This power to make regulations is similar to that in paragraph 42(3) of Schedule 5, which provides for regulations to be made giving a fines officer the power to issue a summons in connection with a collection order. It may be that one set of regulations can give fines officers all their powers to issue summonses.

15.  It is not considered that the detail is in any way contentious and is therefore considered suitable for secondary legislation.

16.  The Bill provides that such regulations will be subject to negative resolution, as the negative resolution procedure is thought to provide an appropriate level of parliamentary scrutiny.

Schedule 6, Paragraph 13

17.  Paragraph 13 of Schedule 6 gives a power to make regulations about the provision of information in relation to work orders. These regulations may specify the information to be included in a work order; that the court making a work order is to give a copy of the order to such persons as may be prescribed, and that the court revoking or varying a work order is to give notice of that revocation or variation in writing to the persons prescribed.

18.  This was thought appropriate to delegated legislation, given the level of detail involved. The Bill provides that such regulations will be subject to negative resolution, as the negative resolution procedure is thought to provide an appropriate level of parliamentary scrutiny.

September 2003

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