Select Committee on Delegated Powers and Regulatory Reform Second Report



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.


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.


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.


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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