SECOND REPORT
Crime And Courts Bill
[Hl]
Introduction
1. This Bill covers a number of different topics.
Though there are only 31 clauses, there are 16 Schedules. Some
very important material is in the Schedules. For example, clause
18 introduces Schedule 12, so that all the significant provisions
about judicial appointments are to be found on pages 167 to 201
of the Bill.
2. There is a memorandum from the Department
for Justice on the delegated powers in the Bill[1].
There are Henry VIII powers at clauses 2 and 29; Schedule 3, paragraph
30; and Schedule 5, paragraphs 27 and 28. For the most part the
powers seem to be appropriately delegated and subject to an appropriate
level of Parliamentary scrutiny, but there are eight provisions
that we wish to mention in this Report.
Clause 2 - National Crime Agency functions
3. Clause 1 establishes the National Crime Agency
(NCA), and confers on it functions which include a crime-reduction
function and a criminal intelligence function. But, in addition,
clause 2 enables the Secretary of State by order to make provision
about NCA counter-terrorism functions (which can include conferring
any such functions). In particular, paragraph 9 of the memorandum
explains that a forthcoming review might conclude that counter-terrorism
policing functions should be conferred on the NCA.
4. The idea of adding to a statutory body's functions
by subordinate legislation subject to a Parliamentary procedure
is well established. Although "NCA counter-terrorism functions"
is not defined, it is reasonably clear what sort of functions
are being described. No doubt in view of the significance of the
subject-matter clause 2(5) applies what is described as a "super-affirmative"
procedure set out in Schedule 16. This procedure is clearly based
on the procedure in section 11 of the Public Bodies Act 2011,
which is described in the Explanatory Notes to the Act as an "enhanced
affirmative"[2] procedure
and not a "super-affirmative" procedure (as found in
Part 1 of the Legislative and Regulatory Reform Act 2006). Drawing
on an existing statutory procedure is preferable to creating a
new procedure although the enhanced affirmative procedure in this
Bill differs from that in the Public Bodies Act in that there
are no "statutory tests" in the Bill. This difference
can be explained by the provision in clause 2 which, by sufficiently
circumscribing the scope of the power, obviates the necessity
for statutory tests.
Schedule 10, paragraph 1 - Family court legal
advisers
5. Paragraph 1 of Schedule 10 inserts new sections
31B to 31Q into the Matrimonial and Family Proceedings Act 1984.
These are about the new family court, which has as its judges
all levels of judiciary currently able to deal with family proceedings
in the High Court, county courts and magistrates' courts. New
section 31O enables a person to sit as a legal adviser to a family
court only if he or she is a Justice's clerk. These advisers will
be needed because not all the judges of the family court will
be legally qualified (they include lay justices).
6. New section 31O(4) enables the Lord Chancellor,
with the agreement of the Lord Chief Justice, and after consulting
the Family Procedure Rules Committee, to make rules enabling functions
of the family court, or of a judge of the family court, to be
carried out by a legal adviser, and for functions of a legal adviser
to be carried out by an assistant legal adviser. The rules are
subject to negative procedure only.
7. This power is similar to that in section 28
of the Courts Act 2003 in relation to delegation to Justices'
clerks. But that power is limited to delegating things which can
be done by a single Justice of the Peace. Paragraph 106 of
the memorandum explains that the power in the Bill may be used
quite widely and we therefore recommend that at least the first
rules made under new section 310(4) should be subject to affirmative
procedure.
Schedule 12, paragraph 5 - Supreme Court judges
8. Part 3 of the Constitutional Reform Act 2005
deals with the Supreme Court (the replacement for the House of
Lords acting in a judicial capacity). In particular sections 25
to 31 deal with the appointment of its judges. If there is a vacancy
for the President, the Deputy President or a judge of the court,
the Lord Chancellor must convene a selection commission to select
a person to be recommended for appointment. Schedule 8 to the
2005 Act specifies who must be a member of the commission (with
special rules where the President's or Deputy President's place
is unfilled), who is disqualified and who chairs the commission.
Sections 28 to 31 set out in some detail what happens after a
commission has made a selection, including provisions about the
circumstances in which, and grounds on which, the Lord Chancellor
may reject a selection or require its reconsideration.
9. Paragraph 7 of Schedule 12 to the Bill omits
many of these detailed provisions, both about the selection commissions
and about the process of selection. The purpose of the Bill is
that much of the detail relating to these matters that is currently
in the 2005 Act will instead be contained in regulations subject
to the affirmative procedure. The reason given at paragraph 165
of the memorandum for this change is the need for flexibility.
New section 27A is inserted into the 2005 Act by paragraph 5 of
Schedule 12 and contains the power to make the regulations. There
is a duty on the Lord Chancellor to make provision about membership
of selection commissions and the selection process "by regulations
made with the agreement of the senior judge of the Supreme Court".
(Though the memorandum does not say what will happen if the Lord
Chancellor and the senior judge cannot agree, we presume the provision
in the Bill will not be commenced until there is agreement.) New
section 27A(2) sets out an illustrative list of things for which
the regulations may in particular provide. There is a consultation
requirement at new section 27A(3).
10. If the Bill is enacted, the position as respects
a selection commission will broadly be this. Primary legislation
will specify:
· the circumstances in which the Lord Chancellor
must convene a selection commission;
· the minimum number of members (five) and
that it must be an odd number;
· the category of person that a commission
must and may not include (new section 27(1B) to (1D) on page 168-9
of the Bill).
11. If the Bill is enacted, the position as respects
the selection process will broadly be this. Primary legislation
will still specify:
· that selection must be on merit;
· that the qualification in section 25 of
the 2005 Act as to holding judicial office, etc must apply;
· that the commission must ensure that between
them the judges will have knowledge and experience of the law
of each part of the UK.
12. In addition, new section 27A(1)(c) will require
the regulations to ensure that at some point in the process a
selection will have to be accepted by or on behalf of the Prime
Minister or Lord Chancellor. But how that point will be reached,
including the circumstances in which, and the grounds on which,
an earlier selection may be rejected, will be for the regulations.
(Because the bill itself provides that the Lord Chancellor may
be a member of a commission for selecting a President of the Court,
new section 27A(2)(d) does not enable the regulations to provide
for rejection by the Lord Chancellor when he himself has been
a member of the Commission.)
13. The House will wish to consider carefully
a combination of provisions which between them remove some provisions
currently in an Act into regulations. Before 2005 there was little
said in primary legislation about the selection process for any
judicial office at all. In 2005, both the Supreme Court and the
system for appointing its judges were new. This might partly account
for the level of detail currently in the primary legislation.
This Committee has often recognised that Parliament sometimes
requires a higher level of control over something new than over
something which is longer established. We do not consider it
inappropriate in principle for the primary legislation to specify
the key points of principle, leaving the remainder to be dealt
with by regulations subject to affirmative procedure. It is for
the House as a whole to decide whether, as a matter of policy,
the reasons given by the Government justify the change.
Schedule 12, paragraphs 15 to 25 - Judicial Appointments
Commission
14. Part 4 of the 2005 Act deals with judicial
appointments (other than appointments to the Supreme Court). The
Judicial Appointments Commission, or a panel of the Commission,
is given the function of selecting a person to be appointed or
to be recommended for a judicial appointment, if requested to
do so by the Lord Chancellor. (But see paragraphs 19 to 25 below
for changes to be made by this Bill.)
15. Part 1 of Schedule 12 to the 2005 Act sets
out detailed provisions about the Commissioners. These include
provisions about the numbers of members overall, the number of
judicial, lay and other members, conditions for selection as members,
composition of selection panels of the Commission, what a panel
must consider and maximum term of office. There is a power to
amend some of the numbers by order subject to affirmative procedure.
16. The Bill proposes that these provisions be
replaced by powers to make regulations subject to affirmative
procedure which will cover this ground instead. These items will
be in the primary legislation:
· those not holding judicial office must
outnumber those that do;
· the chairman must be a lay member;
· membership must include holders of judicial
office, practising or employed lawyers and lay members (but what
is a "lay member" or "holder of a judicial office"
will be defined in the regulations);
· a Commissioner must be appointed for a
fixed period;
· provision for removal, including the grounds;
· power for the Lord Chancellor to pay salaries
etc. and issue codes of conduct.
17. Subject to this, among the things left to
regulations will be:
· numbers, maximum numbers or minimum numbers
of commissioners or category of commissioner;
· eligibility for appointment;
· method of selection of people to be recommended
for appointment;
· periods of appointment;
· cessation of membership if a member is
no longer eligible for appointment.
18. We consider that the framework in the primary
legislation (para 16 above) gives a sufficient indication of the
composition and tenure of office of the membership to prevent
the powers taken being inappropriately wide.
Schedule 12, paragraph 50(3) - Judicial appointments
selection process
19. Sections 67 to 75 of the 2005 Act deal with
the selection of the Lord Chief Justice, the Master of the Rolls
and other heads of division of the High Court. Under section 69
the Lord Chancellor may make a request to the Judicial Appointments
Commission for a person to be selected for a recommendation for
appointment. Section 70 requires the Commission to appoint a panel
who will determine the selection process to be applied, apply
it and make a selection accordingly. Section 71 prescribes in
some detail the composition of the panel. Sections 72 to 75 set
out in detail the process to be followed between the panel making
a selection and the actual recommendation for appointment; in
particular they deal with the Lord Chancellor's ability to reject
a selection.
20. The Bill repeals sections 71 to 75, but inserts
(page 194 of the Bill) some provisions into section 70 about the
composition of the panel.
21. The groups of sections in the 2005 Act dealing
with the Senior President of Tribunals, ordinary judges of the
Court of Appeal, puisne judges of the High Court and other judicial
offices listed in Schedule 14 to the 2005 Act (including circuit
judges and district judges) reflect, broadly speaking, the provision
in sections 67 to 75 in terms of the type of material contained
in the Act itself. Under the Bill, all these other groups of sections
are amended in a similar way.
22. The provisions of the sort currently in the
2005 Act that are removed will instead be the subject of regulations
under new section 94C of the 2005 Act. These regulations are required
to be made by the Lord Chancellor with the agreement of the Lord
Chief Justice. The regulations are subject to affirmative procedure.
23. It is apparent from paragraphs 190 and 191
of the memorandum that the reason for the change is similar to
that given in respect of the selection of judges of the Supreme
Court - the wish for greater flexibility. As with the Supreme
Court judges, the regulations will have to secure that at some
point in the process the panel's or the Commission's selection
will have to be accepted, but again, how that point is reached
will be a matter for the regulations.
24. The regulations will make provision about
the process to be applied where the Commission is requested to
select a person for a recommendation or appointment, including
the process to be applied by a selection panel under sections
70, 75B or 79 of the 2005 Act. They will also make further provision
about the membership of panels, additional to that to be inserted
into the 2005 Act by the Bill (page 194, line 21; page 195, lines
4 and 28).
25. As with the provisions about Supreme Court
judges, we do not consider the structure of what is proposed inherently
inappropriate, especially given that for so long these matters
were not the subject of legislation at all. But we draw to the
attention of the House that the change here is particularly significant
because it is happening at the same time as the changes relating
to the composition and functioning of the Commission (paragraphs
14 to 18 above). As with the powers in relation to Supreme Court
judges, the House will wish to satisfy itself of the need for
the flexibility sought in this Bill.
Clause 22 - Films etc. of court proceedings
26. Section 41 of the Criminal Justice Act 1925
prevents photographing or sketching in court any judge, juror,
witness or party in civil or criminal proceedings. Section 9 of
the Contempt of Court Act 1981 prevents the use of tape recorders
in court without the leave of the court and playing recordings
to the public.
27. Clause 22(1) enables the Lord Chancellor,
by order subject to negative procedure made with the concurrence
of the Lord Chief Justice, to prescribe visual or sound recordings
to which sections 41 of the 1925 Act or section 9 of the 1981
Act, or both, do not apply (whether or not subject to conditions).
28. Paragraph 198 of the memorandum explains
the initial use to which this power is intended to be put. This
is to permit filming and broadcasting of the judgments and advocates'
arguments in the Court of Appeal. It is said that filming or broadcasting
of any parties or witnesses will not be permitted. But there
is nothing to prevent the power being used in that way at some
point in the future.
29. The memorandum suggests that if clause 22
is enacted, Parliament will have approved the principle of filming
and broadcasting court proceedings. But that does not mean that
it would not wish a high level of scrutiny to apply to an order
setting out the extent to which it should be permitted. So
despite the fact that clause 22(3) leaves the court or tribunal
with the final say in any particular case, we recommend the affirmative
procedure should apply to orders under clause 22.
Clause 23 - Non-custodial sentencing
30. The memorandum explains that this is not
intended to reach the statute book and the Government acknowledge
that this is not an appropriate delegation (paragraph 205 of the
memorandum). We note the commitment given that this clause
will be removed from the Bill and we will consider any delegated
powers proposed in any replacement clause or Bill brought forward.
If replacement clauses are not brought forward before proceedings
in this House are completed, the House might consider removing
clause 23 from the Bill before it is sent to the House of Commons.
Clause 29 - Consequential amendments
- Clause 29 enables the Secretary of State or the
Lord Chancellor to make consequential provision by order, and
this extends to amending Acts. Paragraphs 216 and 217 of the memorandum
explain that an order is subject to affirmative procedure if it
amends an Act, and otherwise to negative procedure. We agree that
this is appropriate but a small amendment to the Bill seems necessary
to ensure that this is so for orders made by the Lord Chancellor.
1 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
2
Explanatory Notes to the Public Bodies Act 2011, paragraph 36
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