COURTS BILL - CONSIDERATION OF COMMONS
Further supplementary memorandum by the
Department for Constitutional Affairs
This memorandum is supplementary to those already
provided to the Committee, and relates to amendments tabled to
the Courts Bill in Committee in the House of Commons, and debated
on 10 July 2003.
1. This clause contains two order making powers,
which were formerly contained in clause 31 of the Bill as introduced
to the House of Lords. The following explanation of the powers
(paragraphs 2-7) is taken from the memorandum to the Committee
in November 2002, which the Committee reported on and agreed on
11 December (HL Paper 20).
2. The first order making power, under subsection
(5) is necessary to enable the fine enforcement measures set out
in Schedules 5 and 6 to the Bill to be piloted. Subsection (5)
empowers the Lord Chancellor to bring into effect the provisions
of Schedules 5 and 6 to the Bill in relation to one or more local
justice areas. Subsection (6) stipulates that an order under subsection
(5) may make provision for modifying Schedules 5 and 6 or any
enactment in connection with Schedules 5 and 6 in relation to
the specified local justice areas.
3. The enforcement measures are a radical departure
from existing practice, and the intention is to pilot different
elements of the package in different areas so that their effectiveness
in improving the payment rate can be assessed (for example, an
increase for default may be piloted in one area; wheelclamping
or registration of the debt as sanctions for defaulters may be
piloted in another. The pilots will also be used to assess the
best means of providing help to those having difficulty in meeting
their repayment terms).
4. It is not considered that the detail, of which
part of the scheme is to be piloted in which particular local
justice area(s), would be in any way contentious and would only
be applying different parts, or the whole, of the legislation
in Schedules 5 and 6. Therefore it is not necessary for this to
be contained in primary legislation or be subject to affirmative
5. The proposal is for the power to be subject
to negative resolution because a high level of parliamentary scrutiny
is not considered necessary for the kind of detail and flexibility
involved in establishing the pilots.
6. The second order making power, under Clause
97 subsection (7), is intended to be used once the pilot schemes
established under subsections (5) and (6) have been evaluated.
Subsection (7) provides that the Lord Chancellor may bring Clause
97 and Schedules 5 and 6 into effect in all local justice areas
and indefinitely (i.e. to facilitate national implementation).
Subsection (9) allows the Lord Chancellor, when making an order
under subsection (7) to make such amendments to the provisions
of Schedules 5 and 6 and any other enactments as appear appropriate
in the light of the pilot schemes. The power is necessary to
ensure that the fines package and the scheme to discharge fines
by unpaid work can be modified in the light of experience, so
that the enforcement measures which are implemented nationally
are both practicable and effective.
7. Given the possibility that the provisions
of the primary legislation in Schedule 2 may require modification,
it is considered appropriate that any order made under subsections
(7) to (9) should be subject to affirmative resolution of Parliament.
Schedule 5, Paragraph 45
8. Paragraph 45 of Schedule 5 allows the Lord
Chancellor to make regulations for the purpose of giving effect
to the attachment of earnings orders as to be used in accordance
with Schedule 5, and to allow for regulations to be made for the
calculation of the amounts to be deducted from pay. This power
is necessary to allow the new attachment proposals to operate
with the existing legislation on attachment orders e.g. currently
an attachment order can only be imposed on default, the new scheme
would be looking to apply them at the outset where an offender
has previously defaulted on another fine. The power would only
be used for the operation of the pilots. Once the scheme is tested
any final amendments to existing legislation will be put before
Parliament for affirmative resolution.
9. It is considered that negative resolution
is appropriate in this instance as the power is only to be used
for the duration of the pilots, to facilitate the operation of
Schedule 5 with the existing legislation and any permanent alteration
of the existing legislation will be subject to affirmative resolution
by virtue of Clause 97(7) and (9).
Schedule 6, Paragraph 1(2)
10. Paragraph 1(2) of Schedule 6 provides for
the Lord Chancellor to make regulations to set the "prescribed
hourly sum" which will determine the rate at which the work
set by a work order will discharge the fine imposed on the offender.
Paragraph 3(3) provides that the number of hours of work that
an offender must perform is to be determined by dividing the amount
of the fine by the prescribed hourly sum and rounding up to the
nearest whole number.
11. Delegated legislation is considered appropriate
for setting this sum, as a provision governing the rate at which
fines are to be discharged through work would appear to involve
too great a level of detail for primary legislation. Also, the
prescribed hourly rate will be subject to frequent review and
could require regular amendment. This could involve a significant
and inappropriate use of parliamentary time if the sum was to
be set by primary legislation.
12. The Bill provides that these regulations
will be subject to negative resolution, as the negative resolution
procedure is thought to provide an appropriate level of parliamentary
Schedule 6, paragraph 8(5)
13. Paragraph 8(5) of Schedule 6 provides for
the Lord Chancellor to make regulations to enable the fines officer
to issue a summons for the purpose of ensuring that the offender
attends the court when an application has been made under paragraph
8(1) or (2). An application is made by the fines officer to the
court under paragraph 8(1) that the offender is failing or has
failed to comply with a work order without reasonable excuse.
An application under paragraph 8(2) is similarly made where the
offender has so failed, but has a reasonable excuse; or where
a change in the offender's circumstances means that he is unlikely
to be able to comply with the work order.
14. This power to make regulations is similar
to that in paragraph 42(3) of Schedule 5, which provides for regulations
to be made giving a fines officer the power to issue a summons
in connection with a collection order. It may be that one set
of regulations can give fines officers all their powers to issue
15. It is not considered that the detail is in
any way contentious and is therefore considered suitable for secondary
16. The Bill provides that such regulations will
be subject to negative resolution, as the negative resolution
procedure is thought to provide an appropriate level of parliamentary
Schedule 6, Paragraph 13
17. Paragraph 13 of Schedule 6 gives a power
to make regulations about the provision of information in relation
to work orders. These regulations may specify the information
to be included in a work order; that the court making a work order
is to give a copy of the order to such persons as may be prescribed,
and that the court revoking or varying a work order is to give
notice of that revocation or variation in writing to the persons
18. This was thought appropriate to delegated
legislation, given the level of detail involved. The Bill provides
that such regulations will be subject to negative resolution,
as the negative resolution procedure is thought to provide an
appropriate level of parliamentary scrutiny.