COURTS
BILL
[HL]
INTRODUCTION
9. This bill is primarily to implement some of
the recommendations in the Auld Review of the Criminal Courts
in England and Wales, but also makes other changes about civil
and family court procedures and about judicial matters generally.
10. The bill includes a number of delegated powers,
including Henry VIII powers. All of the powers are explained in
the comprehensive memorandum from the Lord Chancellor's Department,
which includes at the end a useful table showing where the powers
may be found and the relevant level of Parliamentary scrutiny
provided.
HENRY
VIII POWERS
11. There are Henry VIII powers in clauses 31
(with a related modification power at paragraph 25 of Schedule
2), 54, 59(6), 66, 68, 73, 75, 79, 92 and 98.
12. Clause 31 and Schedule 2 introduce a new
system for enforcement of fines in magistrates' courts. Schedule
2 sets out the new arrangements, but clause 31(3) provides that
Schedule 2 has effect initially for the purposes of pilot schemes
and then permanently only when an order is made under clause 31(6)
in the light of the pilot scheme or schemes. Orders made under
clause 31(4) allow pilot schemes to be introduced in particular
areas and, in relation to those particular areas, may modify Schedule
2 or may modify any enactment in connection with the operation
of Schedule 2. If Parliament approves the idea of pilot schemes
as proposed in the bill, we consider that the delegation is appropriate,
as is the negative procedure provided.
13. The order under clause 31(6), bringing Schedule
2 into effect permanently, may amend Schedule 2 (and other enactments),
but only so far as appears to the Lord Chancellor appropriate
in the light of the pilot schemes. Accordingly, this power is
limited by reference to the purposes for which it can be used.
We consider that the delegation is appropriate, as is the affirmative
procedure provided.
14. Clauses 66 (criminal procedure), 73 (family
procedure) and 79 (civil procedure) each confer power to amend
the composition of Rules Committees. The orders effecting the
changes are subject to negative resolution, though there is a
requirement for consultation with, respectively, the Lord Chief
Justice, the President of the Family Division, the Head and Deputy
Head of Civil Justice and the Master of the Rolls. Potentially,
the order-making power could be used in a way which changed the
balance of the Rules Committees but we consider that the negative
procedure probably provides a sufficient degree of Parliamentary
control.
15. Clauses 68 (criminal procedure) and 75 (family
procedure) enable the Lord Chancellor, by order subject to negative
procedure, to amend enactments to facilitate the making of Rules,
or in consequence of specified provisions of the Act or of Rules.
This almost reflects the position for civil procedure under the
Civil Procedure Act 1997. But under that Act amendments to facilitate
civil procedure rules are limited to amendments to Acts passed
before section 4 of that Act came into force and are subject to
affirmative procedure. We do not consider that the Government
has made out the case for negative procedure in this instance.
16. Clause 98 enables the Lord Chancellor by
order to make:
- any supplementary, incidental or consequential
provision, and
- any transitory, transitional or saving provision,
which he considers necessary or expedient for the
purposes of, in consequence of, or for giving full effect to any
provision of the bill. This includes power to amend or repeal
primary legislation (subsection (4)(b)(i)). Orders are subject
to the negative procedure. In view of the fact that orders
under this section may amend or repeal primary legislation, the
House may wish to consider whether the negative procedure under
this section is justified.
OTHER
PROVISIONS
17. Clause 8(2) enables the Lord Chancellor to
make orders dividing England and Wales into administrative areas
to be known as local justice areas. This delegation is clearly
appropriate. Clause 97(4)(a) provides that the first order under
clause 8 shall be laid before Parliament only (i.e. shall not
be subject to affirmative or negative procedure). Subsequent orders
under clause 8 are subject to the negative procedure (clause 97(5)(a)).
The reason given by the Department (paragraph 6 of its memorandum
to the Committee) is that the first order "will simply be
renaming petty sessions areas as local justice areas and will
not change any boundaries". But the power to make the
first order is not limited in this way and the Committee considers
that, unless it is, there is no reason why the first order should
not be subject to the same procedure as subsequent ones.
18. Clause 87 enables the Lord Chancellor (with
the consent of the Treasury) by order to prescribe court fees
for the Supreme Court, county courts and magistrates' courts.
The order must be laid before Parliament (clause 97(4)(c)) but
is not subject to affirmative or negative procedure. This follows
the position under existing legislation, explained at paragraphs
98 and 101 of the Department's memorandum to the Committee. We
have considered the precedent, but now conclude that the fees
orders under this clause should be subject to parliamentary procedure
as some of the fees may have an impact on rights of access to
the courts.
RECOMMENDATION
19. Subject to the points discussed in paragraphs
14, 15, 16 and 17 above, the powers conferred by the bill are
appropriately delegated and subject to an appropriate level of
Parliamentary control.
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