Select Committee on Delegated Powers and Deregulation Fifth Report


PART V - MAGISTRATES


Territorial organisation

86.  The administration of the magistrates courts is based on three organisational units: commission areas (the basis for jurisdiction and the appointment of magistrates); petty sessions areas (the benches - the basic level of local court organisation); and magistrates' courts committee (MCC) areas (the unit of organisation for management and administration).

87.  All three are defined in primary legislation in terms of local authority boundaries. There is power to change commission areas by secondary legislation to reflect changes in local authority boundaries; and a separate power under the Justices of the Peace Act 1997 ("the JPA 1997") to change the commission areas in Greater London only (other than the City) by Order in Council. There is also power under the JPA 1997 to change petty session areas by secondary legislation within the constraints of local authority boundaries. And there is power under section 32 of the same Act to change MCC areas, where this will increase overall administrative efficiency.

88.  It is the Government's policy to achieve a greater alignment of the boundaries of the various criminal justice agencies. It is also the Government's view that the magistrates' courts service would generally be administered more efficiently by fewer and larger units. In recent years, a number of MCCs have been amalgamated by orders under section 32 of the JPA 1997, and there will be more amalgamations in future, with the result that:

  • the primary legislation definition of MCCs in terms of local authorities is becoming increasingly removed from the reality; it is also harder to identify what the area boundaries actually are.
  • some MCC areas are no longer aligned with commission areas, which cannot generally be changed. This restricts the MCC's ability to deploy its magistrates and cases effectively, since jurisdiction is limited to the commission area.
  • an MCC which includes more than one defined local authority area cannot redraw its petty session areas so that they cross those local authority boundaries. This restricts the MCC's ability to determine its optimum internal structure.

89.  Clauses 49, 50 and 55 redefine the three types of organisational unit without reference to local authority areas, and provide a consistent set of powers to change their boundaries by order. The department believes it is no longer appropriate for magistrates' courts service boundaries to be defined in primary legislation. It may be necessary to change the boundaries from time to time to align with future changes to the boundaries of other criminal justice agencies.

CLAUSE 49 - COMMISSION AREAS

90.  Clause 49 empowers the Lord Chancellor to alter commission areas, of his own volition or following a proposal from relevant magistrates' courts committees. Commission areas in England and Wales will be specified by order made by the Lord Chancellor under the new section 1(2) of the JPA 1997, which is inserted by clause 49(1). An initial consolidating order will identify all commission areas in existence at that time (paragraph 18 of Schedule 10 to the Bill). Orders under subsection 1(2) which alter a commission will follow the negative resolution procedure (by virtue of new section 32A(6)).

91.  Clause 49(2) inserts a new section 32A in the JPA 1997. This establishes the procedural framework for changing commission area boundaries. The procedure provides for all magistrates and MCCs affected by a proposed change to be consulted. Section 32A(5) provides than an order under section 1(2) may contain such consequential and transitional provisions as appear necessary or expedient to the Lord Chancellor.

CLAUSE 50 - PETTY SESSIONS AREAS

92.  Clause 50 redefines petty session areas, and makes consequential amendments to the existing procedure for changing them. Clause 50(1) amends section 4 of the JPA 1997 so as to define petty sessions areas in terms of commission areas. Petty sessions areas in England and Wales will be specified by order made by the Lord Chancellor under the amended section 4(2). An initial consolidating order will identify all petty sessions areas in existence at the time at which the order is made (paragraph 19 of Schedule 10).

93.  Clause 50(2) amends section 33 of JPA 1997. This section provides the procedural framework for changing petty sessions areas, which remains essentially the same as now, except that the procedure for changing the names of petty sessions areas (currently in sections 35 and 36 of the JPA 1997) is incorporated.

94.  The Lord Chancellor may not initiate a change, but he may direct an MCC to consider whether change is needed. He may only make an order under section 4(2) following a recommendation by an MCC; where an MCC has failed to comply with a direction to consider change; or in consequence of changes to commission area or MCC boundaries. An order may contain such consequential and transitional provisions as appear to him necessary or expedient (new section 33(4). As is the case in existing legislation, an order under section 4(2) is not subject to any Parliamentary procedure.

95.  Clause 51 contains no delegated powers.

Justices

96.  Clauses 52 and 53 contain no delegated powers to make secondary legislation. Clause 52 (unification and renaming of stipendiary bench) effectively re-enacts (in new section 10C(3) of the JPA 1997) the Lord Chancellor's existing power to make directions about the deployment of stipendiary magistrates.

CLAUSE 54 - JURISDICTION OVER OFFENCES OUTSIDE AREA

97.  Clause 54 provides a new flexibility for summary cases to be heard in a magistrates' court outside the commission area in which the alleged offence took place. Clause 54(1) inserts section 3B in the Magistrates' Courts Act 1980. The new section 3B(3) gives the Lord Chancellor power to make regulations specifying the criteria which a court should take into consideration when determining an application to transfer a case to another commission area, and circumstances in which a court must grant or refuse an application. Examples of possible criteria are the security or convenience of witnesses, the circumstances of the defendant, and the facilities of the court-house. These criteria represent guidance to courts when determining applications. They will contain detail which would not be appropriate for the face of the Bill. It may also be necessary to amend them in the light of some experience of the new procedure. Regulations under section 3B(3) will follow the negative resolution procedure.

98.  Clause 54(2) amends section 145 of the Magistrates' Courts Act 1980, to confirm that the Lord Chancellor's power to make rules of court extend to rules setting out the procedure for the making and determination of applications for transfer. (Section 144 of the 1980 Act allows the Lord Chancellor, having consulted the Magistrates' Courts Rules Committee, to make rules of court. These are subject to the negative resolution procedure.)

Magistrates' courts committees

CLAUSE 55 - AREAS OUTSIDE GREATER LONDON

99.  Clause 55 redefines MCC areas, and makes consequential changes to the procedure for changing areas outside Greater London. The clause inserts new sections 27A & B in the JPA 1997. Section 27A(2) enables the Lord Chancellor to specify MCC areas outside Greater London by order, each area to consist of one or more entire petty sessions areas. An initial consolidating order will identify all MCC areas in existence at the time at which the order is made (paragraph 25 of Schedule 10 to the Bill).

100.  Section 27B provides the procedure for changing MCC areas. It replicates the existing procedure under section 32 of the JPA 1997, which is repealed by Schedule 11 to the Bill, subject to consequential textual amendments which do not alter the procedure. Changes can be made by the Lord Chancellor of his own volition, or on the recommendation of an MCC. All affected magistrates, MCCs and local authorities must be consulted about a proposal before any order is made (section 27B(2) & (4)). The Lord Chancellor may only make an order under section 27A(2) where he considers it likely to lead to an overall increase in efficiency (section 27B(3)). An order under section 27A(2) may contain such transitional or consequential amendments as the Lord Chancellor considers necessary or expedient (section 27B(6)). The Lord Chancellor may issue directions about the first meeting of a new MCC (section 27B(7)). As now, orders under section 27A(2) will follow the negative resolution procedure. These provisions do not apply to Greater London, which will be subject to the separate new provisions introduced by clause 57.

CLAUSE 56 - CONSTITUTION OF COMMITTEES OUTSIDE GREATER LONDON

101.  Clause 56 makes consequential amendments to sections 28 to 30 of the JPA 1997 which govern the constitution of MCCs. It excludes Greater London from the operation of the provisions, as it will be subject to separate provisions. The amended section 29(1) re-enacts the Lord Chancellor's existing powers to make regulations, subject to the negative approval procedure, about the constitution, quorum and procedure of MCCs. Section 29(5), which allows regulations to make different provisions for different areas, is novel. This power will allow the Lord Chancellor to fashion alternative regulations for an MCC or MCCs whose circumstances are such that the general regulations are insufficient.

CLAUSE 57 - GREATER LONDON MAGISTRATES' COURTS AUTHORITY

102.  Clause 57 creates the Greater London Magistrates' Courts Authority (GLMCA) to manage the magistrates' courts in Greater London. The clause inserts new sections 30A & B in the JPA 1997. New section 30B(1) empowers the Lord Chancellor to make regulations about the GLMCA, including provision for its membership (including who shall chair it); its procedures (including quorum and meetings); and its committees and subcommittees. These regulations will follow the negative resolution procedure.

103.  Similar matters to those for traditional MCCs are currently dealt with under delegated legislation (eg. The Magistrates' Courts' Committees (Constitution) Regulations, 1994 under section 29 of the JPA 1997), because they relate to administrative details which may need to change from time to time.

104.  The GLMCA will have a number of different functions to those of a traditional MCC (eg. the power to own property, and to pay for its own goods and services); and it will have a significantly larger case-load (with a consequently larger work-force and budget) and cover more local authorities. The membership of the GLMCA will need a different mix of skills, experience and representation to that of a traditional MCC. As a newly established body with some new functions, there is a particular need to retain flexibility to make changes in the light of some experience.

CLAUSE 58 - STANDARD GOODS AND SERVICES

105.  Clause 58 gives the Lord Chancellor a new power to make regulations requiring all MCCs, or specified MCCs, to obtain specified goods or services, or goods or services of a specified description, where he considers that this would be in the interests of the efficiency and effectiveness of the magistrates' courts generally. These regulations, under a new section 56A of the JPA 1997, will follow the negative resolution procedure.

106.  Magistrates' courts are managed locally within a national framework, which requires them to achieve national standards and work with other criminal justice agencies towards common objectives. The regulations will enable the Lord Chancellor to ensure that MCCs adopt common systems and services, where greater consistency would contribute to the achievement of standards and objectives, or where joint procurement would lead to better value for money. (The Home Secretary has similar powers in relation to the police under section 57 of the Police Act 1996).

107.  These powers are likely to be most useful in relation to information technology, but they could also be used in respect of other items, such as court forms. The Lord Chancellor might require MCCs to purchase items from a particular supplier, with whom the department has negotiated a national contract on beneficial terms. Or he might require MCCs to purchase items of a specified description which is compatible with those used by other MCCs or criminal justice agencies, but leave it up to each MCC to which supplier to use. The matter is left to delegated legislation to allow specific requirements to be imposed from time to time, reflecting, for example, developments in IT, the negotiation of national contracts etc.

Justices' chief executives

108.  Clauses 59 and 60 contain no delegated powers.

CLAUSE 61 - TRANSFER OF ADMINISTRATIVE FUNCTIONS OF JUSTICES' CLERKS

109.  Clause 61 and Schedule 9 transfer various statutory responsibilities from justices' clerks to justices' chief executives. This reflects the Government's policy of establishing a clearer distinction between the legal and judicial functions of justices' clerks, and the administrative and managerial functions of justices' chief executives. A consultation exercise about the future role of justices' clerks has recently been completed.

110.  Clause 61(2) empowers the Lord Chancellor, by order subject to the negative resolution procedure, to transfer further administrative functions from justices' clerks to justices' chief executives. This allows for the transfer of other functions not specified in Schedule 9. Schedule 9 identifies more than seventy separate provisions in legislation, dating back as far as 1920.

CLAUSE 62 - COLLECTION, PAYMENT, ACCOUNTING AND BANKING

111.  Clause 62 deals with the transfer from justices' clerks to justices' chief executives of functions relating to the fines, fees and other monies ordered to be paid to magistrates' courts. Clause 62(3) inserts a new section 60A to the JPA 1997, which empowers the Lord Chancellor, with the concurrence of Treasury, to make regulations about:

  • the times at which, and the manner in which, justices' chief executives shall remit sums they have collected to the Lord Chancellor or any other person to whom they are due (eg. the beneficiary of a maintenance or compensation order).
  • the keeping and production of accounts by JCEs in respect of all monies received by them (apart from their salaries and expenses), and the inspection and audit of those accounts.
  • the use of specified banking arrangements or facilities.

112.  The new section replaces and extends the existing power to make regulations under section 60(4) of the JPA 1997. As now, no provision is made for any Parliamentary procedure. The new power extends to all monies payable to a magistrates' court, not just those (principally fines and court fees) due to the Lord Chancellor. The power to make regulations about banking arrangements is novel.

113.  These matters have been left to delegated legislation to avoid including excessive detail which would obscure the main principles of the Bill, and to enable adjustments to be made, for example to reflect changes in accounting practice or to ensure that MCCs benefit from new banking services that become available.

Execution of warrants

CLAUSE 63 - CIVILIAN ENFORCEMENT OFFICERS

114.  Clause 63 extends and clarifies the range of warrants issued by a magistrates' court which may be executed by civilian enforcement officers employed by MCCs, local authorities or police authorities. The clause inserts a new section 125A in the Magistrates' Court Act 1980. The new section 125A empowers the Lord Chancellor and the Home Secretary, acting jointly, to make an order listing the warrants that civilians may execute. Annex B of the Explanatory Notes to this Bill lists the warrants that it is intended such an order might cover. Orders under new section 125A will follow the negative resolution procedure.

115.  By virtue of clause 64 of the Bill, approved enforcement agencies and their employees will also be able to execute the warrants listed in the order. By virtue of clause 66, police constables, civilian enforcement officers, approved enforcement agencies and their employees will all be able (subject to safeguards) to execute such warrants without necessarily having them in their possession at the time.

116.  This matter is left to delegated legislation because it is not considered appropriate to include such a detailed list on the face of the statute; and because it will be necessary to update the list from time to time to reflect changes to the criminal law which introduce new orders or abolish existing ones.

CLAUSE 64 - APPROVED ENFORCEMENT AGENCIES

117.  Clause 64 enables MCCs to authorise private companies or firms to execute warrants on its behalf. Clause 64(1) inserts a new section 31A in the JPA 1997. The new section 31A(2) empowers the Lord Chancellor to make regulations, subject to the negative resolution procedure, governing the conditions which must be satisfied by a person if he is to qualify as an approved enforcement agency, and the procedure by which a person may be so approved. Examples of matters that might be covered include that the applicant (and any of his employees engaged in the enforcement of warrants):

  • should be a fit and proper person and possess a sufficient knowledge of the law governing warrant enforcement;
  • must not carry on, or be employed in, any business which involves buying debts;
  • must provide satisfactory references;
  • must provide a certified copy of the results of a search of the Register of County Court Judgements;
  • must supply photographs to accompany the application;
  • may be required to swear an oath that the statements in their application are correct;
  • must publish notice of the application in 3 separate editions of the local and national newspapers;
  • must lodge a bank bond or deposit or provide other guarantees to protect the MCC from financial loss.  

118.  This matter has been left to delegated legislation to leave flexibility to make changes in the light of experience and to respond to the development of new working practices in the private enforcement sector.

119.  Clauses 65-67 contain no delegated powers. As explained in paragraph 240 of the Explanatory Notes, clauses 65 & 67 are intended to facilitate changes to the Magistrates' Courts Rules 1981, made under existing powers.


 
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