COURTS BILL [HL] - GOVERNMENT AMENDMENTS
FOR REPORT STAGE
Supplementary Memorandum by the Lord Chancellor's
224. Further to the memoranda from the Lord Chancellor's
Department reported on by the Committee in its 2nd Report on 11
December 2002 and 14th Report on 19 March 2003, this supplementary
memorandum covers Government amendments to clauses 2 and 10 and
three new clauses (4, 5 and 15), as well as a new supporting Schedule
to be inserted in the Courts Bill.
2 - COURT
225. Clause 2 re-models section 27 of the Courts
Act 1971, but covers staff for magistrates' courts as well as
the Supreme Court and the county courts. It allows the Lord Chancellor
to employ civil servants as court staff, so that he can discharge
his duty of administering the courts and providing support services.
226. New subsections (4) and (8), which have
been tabled as Government amendments, provides that contracting
out, in respect of certain staff functions only, should be after
the making of an enabling order, and subject to prior consultation
with the Heads of Division. As in section 27 (5) of the 1971 Act,
an order may authorise the contracting out of any functions (a)
either wholly or to such extent as may be specified in the order
(b) either generally or in such cases or areas as may be so specified;
and (c) either unconditionally or subject to the fulfilment of
such conditions as may be so specified. Currently, the Contracting
Out (Administrative and other Court Staff) Order 2001, SI 2001/3698
provides for contracting out in relation to Supreme Court and
county court officers and staff. As a result, the Lord Chancellor
can contract with employment agencies for secretarial and casual
staff; and can contract with specialist IT firms.
227. This was thought suitable for delegated
legislation. Orders under this clause will, like orders under
the current law in section 27 of the Courts Act 1971, be subject
to the negative resolution procedure, as a high level of parliamentary
scrutiny is not considered necessary.
4 - ESTABLISHMENT
228. A new clause 4 is included in the Government
amendments tabled for the Report stage of the Courts Bill, providing
for the establishment of courts boards. Subsection (2) provides,
as the previous clause 4 had done, for the Lord Chancellor to
specify the boards' areas by order. Subsection (4) is a new provision
which empowers the Lord Chancellor to make orders altering the
areas. Before doing so, he must consult any courts board affected
by the proposed order. This will allow flexibility so that the
boundaries can be amended, for example, in line with changes to
the criminal justice areas, without the need for primary legislation.
It will also ensure that there is local involvement in any decision
to alter area boundaries. In a further change from the original
clause 4, orders under the clause will be subject to the affirmative
resolution procedure in the first instance, in recognition of
concern expressed at Committee Stage that negative resolution
did not permit appropriate Parliamentary scrutiny. Any orders
altering areas subsequently will be subject to the negative resolution
229. The Government has also tabled for Report
an amendment introducing a new Schedule (Constitution and procedure
of courts boards) containing provisions about the constitution
and procedure of courts boards.
230. Paragraph 3 provides that regulations may
make provision in relation to the appointment of members of court
boards, including in particular provision about the procedures
to be followed in connection with appointments. Paragraph 4 provides
that regulations may make provision as to the selection of one
of the members of each courts board to be its chairman. Paragraph
5 provides that regulations may make provision as to the term
of office of chairmen and members of courts boards and their resignation,
suspension or removal. This will enable Parliamentary scrutiny
of the detail of how the Lord Chancellor will exercise the power
to appoint members to courts boards and the terms of their appointment.
231. Paragraph 6 provides that regulations may
make provision about the procedure of courts boards. This recognises
concerns expressed at Committee that dealing with such matters
in "guidance" afforded insufficient opportunity for
232. The regulations under this Schedule will
be subject to the affirmative resolution procedure.
5 - FUNCTIONS
233. New clause 5 provides that the function
of courts boards is to scrutinise, review and make recommendations
about the way in which the Lord Chancellor exercises his general
duty. Subsection (5) provides for guidance about how the boards
should carry out this function. Subsection (7) provides that the
guidance must be laid before both Houses of Parliament.
234. The matters that will be contained in the
guidance are not considered appropriate for a statutory instrument
but the new requirement that they must be laid before Parliament
will ensure that there is appropriate parliamentary scrutiny.
10 - APPOINTMENT
235. New subsection (4) of Clause 10 provides
that rules may provide for the training which justices must undergo
before exercising their powers in specified classes of proceedings.
By a consequential amendment to clause 16, the rules will be made
by the Lord Chancellor after consultation with the appropriate
236. Currently the Bill contains statutory powers
by means of which the Lord Chancellor can, inter alia, set out
training requirements that must be fulfilled before magistrates
may be authorised to do youth and family work, and to preside
in court. However, there is no statutory power enabling such training
requirements to be set out in respect of other classes of proceedings,
if needed - and, although it may be arguable that the Lord Chancellor
could set out such requirements in his capacity as Head of the
Judiciary, it would be preferable to clarify this point. Under
the unified administration, it is intended that the current localised
arrangements for training magistrates will be more consistent
and will be subject to a stronger supervisory role from the Judicial
Studies Board; this power will be consistent with that policy.
237. It should be noted that a further proposed
amendment to the Bill will oblige the Lord Chancellor to make
arrangements to provide for any training prescribed by him under
238. The Committee has accepted that delegated
legislation is appropriate for the Bill's similar powers relating
to presiding in court, youth work, and family work; training requirements
are too detailed and fast-moving to be appropriate for primary
legislation. (As described in the original memorandum, in the
case of presiding in court the Bill simply replicates current
powers. With youth and family the situation is slightly more complicated
- some provision is set out in primary legislation, but much is
set out in the Youth Constitution Rules 1954, and the Family Proceedings
Courts Rules 1991, made respectively as though pursuant to the
Children and Young Persons Act 1969, and pursuant to the Magistrates'
Courts Act 1980. The Committee has accepted that this framework
may appropriately be replaced by simpler legislation powers.)
239. Such rules (as with the Bill's rule making
powers relating to presiding in court, youth work, and family
work) will be subject to the negative resolution procedure, as
a high level of parliamentary scrutiny is not considered necessary.
15 - TRAINING
240. This new clause makes various provisions
about the training and development of lay justices. Subsection
(1) provides that rules (as above, made by the Lord Chancellor
after consultation) may make provision about the training, development
and appraisal of lay justices.
241. Subsection (2) envisages that the main use
of these rules will be to give statutory force to the role of
Bench Training and Development Committees (BTDCs). BTDCs currently
have various important roles in the training and development of
magistrates, of which the key functions are covered in sub-section
(2). There is currently no statutory backing for these roles,
however, although some functions have nonetheless been covered
by rules made under section 24 of the Justices of the Peace Act
1997 (Size and Chairmanship of the Bench).
242. Delegated legislation is considered necessary
as provision governing the training and appraisal of magistrates
would involve too great a level of detail for primary legislation.
The training and development framework for magistrates needs to
change and evolve swiftly to reflect arising needs and issues.
243. There is also provision in this clause to
oblige the Lord Chancellor to ensure that training and that training
materials are provided for lay justices.
244. Such rules (as with the current Size and
Chairmanship of the Bench rules) will be subject to the negative
resolution procedure, as a high level of parliamentary scrutiny
is not considered necessary. It is likely that a single set of
rules will be made pursuant to clause 10 new subsection (4) (training
courses), this new clause (training and appraisal) and clause
15(6) (chairmanship) and 15(7) (size of bench). Consistent parliamentary
procedures are desirable: the Bill currently provides that rules
made pursuant to clause 15(6) and (7) are subject to the negative