Memorandum by the Lord Chancellor's Department
36. This memorandum identifies provisions for
delegated legislation in the Courts Bill 2002-2003. The purpose
of the memorandum is to explain the purpose of the delegated powers
taken; describe why the matter is to be left to delegated legislation;
and explain the procedure selected for each power and why it has
37. The Courts Bill will primarily implement
the key courts-related recommendations contained in Sir Robin
Auld's Review of the Criminal Courts in England and Wales (October
2001) and related criminal reforms. The Bill will also be used
as an opportunity to legislate on a number of other important
changes relating to judicial matters, civil and family procedure.
Many of the core contents of the Courts Bill were signalled in
the White Paper "Justice for All" published on 17th
38. The Bill will:
Reform the Courts -
- Unify the administration of the Courts, providing
for a new, centrally funded agency as part of the Lord Chancellor's
Department to replace the Court Service and magistrates' courts
- Provide for closer integration of the magistrates'
courts and the Crown Court and giving these courts the collective
title of 'the criminal courts' when exercising their criminal
- Allow more flexible deployment of judges, including
giving justices of the peace a national jurisdiction; and abolish
magistrates' youth and family panels and replace them with a personal
- Provide for a new independent inspectorate of
- Create a new statutory Criminal Procedure Rule
Committee to establish one forum for the development of rules
of procedure for all criminal courts in England and Wales;
- Strengthen court security;
- Reform procedures on appeal from the Court of
Appeal to the House of Lords for the prosecution;
- Allow judges and magistrates to make binding
rulings and directions at pre-trial hearings in criminal cases
in the magistrates' courts;
- Improve the system for enforcing fines in the
criminal courts; and
- Allow costs to be ordered against third parties
in criminal proceedings.
Make reforms concerning the role of judges and
- Correct an anomaly by confirming the validity
of the appointment of a small number of magistrates whose appointments
did not observe the nationality restriction imposed by the Act
- Change the retirement age of the Registrar of
- Allow for the modernisation of judicial titles
following consultation with members of the judiciary;
- Provide that the Lord Chief Justice can make
practice directions in all the criminal courts; and
- Make a technical amendment to the position of
the Official Solicitor in Northern Ireland.
Reform family proceedings in line with the reforms
to criminal proceedings -
- Provide that the President of the Family Division
can make practice directions in all the family courts;
- Create a Family Procedure Rule Committee; and
- Unify the Lord Chancellor's two separate powers
to set family proceeding fees.
Deal with various civil matters -
- Put beyond doubt the jurisdiction of the High
Court to direct writs of execution to responsible officers other
than High Sheriffs;
- Amend membership of Civil Procedure Rule Committee,
and allow the Lord Chancellor to amend rules proposed by the Committee
after consultation with them;
- Rationalise the Lord Chancellor's existing civil
and criminal fee setting powers; and
- Enable courts to make an order for periodical
payment of damages for future financial loss and care costs in
personal injury cases.
39. More detailed information about the purpose
and effect of the provisions in the Bill, and the background to
the proposals, can be found in the Explanatory Notes published
with the Bill.
40. The Bill contains 101 clauses and 7 Schedules,
some of which contain powers to make orders, rules or regulations
by Statutory Instrument. It also contains clauses which clarify
or amend existing powers to make Rules of Court, and clauses which
give the Lord Chancellor power to give direction and make schemes
about various matters. The Annex to this memorandum identifies
and explains all the relevant clauses fully. A table at the back
of the annex lists all of the clauses containing delegated legislation.
41. Most of the orders, rules and regulations
made under the powers in this Bill will follow the negative resolution
procedure. This is because the Department considers that none
of the considerations set out in paragraph 78 of the Second Report
of the Joint Committee on Delegated Powers ("the Brooke Report")
apply. The 1973 Joint Committee on Delegated Legislation recommended
that affirmative resolution procedure was appropriate only for:
(i) powers substantially affecting provisions
of Acts of Parliament;
(ii) powers to impose or increase taxation; and
(iii) other powers of special importance, e.g.
those creating serious criminal offences.
The annex specifically identifies the 3 clauses where
the affirmative resolution procedure is provided. Affirmative
resolution has been provided in respect of: one aspect of the
Lord Chancellor's delegated powers in relation to periodical payments
for personal injury; the power to amend Schedule 2 of the Bill
itself in the light of pilot schemes; the power to make regulations
providing for the making of a costs order against the Lord Chancellor
following the actions of a magistrate or justices clerk (re-enacting
the provision in the Justices of the Peace Act, 1997). Full details
of these provisions and the reasons why they are subject to affirmative
resolution are given in the annex.
42. Although the annex to this document includes
all delegated powers in the Bill, the Committee may wish to note
that a number of clauses effectively re-model (with minor amendments),
or take analogous powers to, existing provisions. The Bill repeals
the entire Justices of the Peace Act 1997, re-enacting and re-modelling
a number of existing provisions. This is to avoid confusion once
the Courts Bill is in force, and ensure that users of the statute
book can find all relevant and linked provisions in one place.
43. The Committee may also wish to note that
the Bill creates two new Rule Committees, for family and criminal
business, following the precedent of the Civil Procedure Rule
Committee which was established by the Civil Procedure Act 1997.
This completes the modernisation of processes for making rules
of court, so that each of the three main areas of business (civil,
criminal and family) has its own dedicated Rule Committee. This
moves away from the old principle that rules were made for particular
types of court, rather than particular types of court business.
COURTS BILL - DELEGATED POWERS
44. Clauses 1-3 contain no delegated powers.
Clause 4 - Establishment of court administration
45. Clause 4 provides for the establishment of
court administration councils. Subsection 2 provides for the Lord
Chancellor to specify the areas by order. This is in keeping with
clause 8, which allows the Lord Chancellor to specify the boundaries
of local justice areas. This will allow flexibility so that the
boundaries can be amended, for example, in line with changes to
criminal justice areas, without the need for primary legislation.
Orders under this clause will be subject to the negative resolution
procedure, as a high level of parliamentary scrutiny is not considered
necessary for this level of detailed provision.
46. Subsection 3 provides for the Lord Chancellor
to appoint members of the council and subsection 5 states that
the Lord Chancellor must provide the councils with guidance. Parliamentary
scrutiny is not considered necessary for this detailed level of
provision. The councils will have an important role in the way
the new unified administration performs its work but, in legislative
terms, they are consultative and not executive.
47. Clauses 5-7 contain no delegated powers.
Clause 8 - Local justice areas
48. Clause 8 places a duty on the Lord Chancellor
to divide England and Wales into areas known as local justice
areas and gives him the power to make orders establishing and
altering such areas. This clause, in effect makes the same provision
as parts of sections 4, 33 and 34 of the Justices of the Peace
Act 1997, but changes the name 'petty sessions areas' to local
49. Delegated legislation is considered necessary
as the Lord Chancellor may wish to change boundaries in order,
for example, to take account of other boundary changes within
the criminal justice system, such as changes to police areas (which
can be effected through delegated legislation). It would be inappropriate
to provide for the boundaries in the statute itself because it
would allow no flexibility and no opportunity to conduct effective
consultation with stakeholders. An order setting up local justice
areas will not be subject to the negative or affirmative resolution
procedure, on the basis that it will simply be renaming petty
sessions areas as local justice areas and will not change any
boundaries. Subsequent orders altering areas will be subject to
negative resolution; however there is a duty on the Lord Chancellor
to consult local magistrates, local councils and courts administration
councils affected by such changes, before making an order.
50. Clauses 9-11 contain no delegated powers.
Clause 12 - Lay justices' allowances
51. Clause 12 reproduces without change the existing
power to set rates contained in section 10 of the Justices of
the Peace Act 1997 (this Bill repeals that whole Act and replaces
material in it, amended as necessary). Clause 12(8) gives the
Lord Chancellor the power to make provision about the way in which
this section is to be administered, by regulations. There are
three allowances that are payable:
- Financial Loss Allowance - to compensate justices
for loss of earnings or social security benefits or additional
expenditure incurred by them in performing their duties.
- Travelling Allowance - to compensate justices
for expenditure incurred by them in travelling to and from the
place where they are required to perform their duties.
- Subsistence Allowance - to compensate justices
for the cost of meals and overnight accommodation if the performance
of their duties requires them to be away from their normal place
of residence for a specified period of time.
52. This has been left to delegated legislation
as the level of allowances is a matter of detail and is changed
each year. Rates are generally fixed by reference to changes in
appropriate indices e.g. "New Earnings Survey" produced
by the Office of National Statistics. It would be impracticable
and excessive for this to be done by primary legislation. This
will be subject to negative resolution, since a high level of
parliamentary scrutiny is not considered necessary for the kind
of detail involved here. Other similar powers to determine allowances
are subject to negative resolution.
53. Clause 13 contains no delegated powers.
Clause 14 - Chairmen and deputy chairmen: selection
54. Clause 14 makes the same provision as parts
of sections 22 and 24 of the Justices of the Peace Act 1997. It
provides that for each local justice area, the magistrates assigned
to that area will elect a chairman and one or more deputy chairmen.
The clause allows the Lord Chancellor to make rules governing,
inter alia, the term of office of the chairman and deputy chairmen,
the number of deputy chairmen, and the election procedures to
55. This was thought suitable for delegated legislation
in the 1997 Act, and there are no changes that affect that assessment.
The level of detail makes this inappropriate for primary legislation
and also means that the rules will require amendment from time
to time. This will be subject to negative resolution in view of
the limited nature of the delegated power and the fact that this
is of limited interest to those outside the magistrates' community.
Clause 15 - Right to preside and size of bench
56. Clause 15, along with clause 14, makes the
same provision as parts of section 24 of the Justices of the Peace
Act 1997. It provides for the Lord Chancellor to make rules specifying,
inter alia, the maximum number of magistrates who may sit to deal
with a case as a magistrates' court, arrangements for securing
enough magistrates to a bench, and the training to be completed
before a magistrate can preside in court.
57. This was thought suitable for delegated legislation
in the current statute, and there are no changes that affect that
assessment. The level of detail makes this inappropriate for primary
legislation and also means that the rules will require amendment
from time to time. This will be subject to negative resolution
in view of the limited nature of the delegated power. These rules
will relate to technical knowledge of procedures of the magistrates'
court, and the subsequent clause provides that they may not be
made without consultation with the relevant Rule Committees.
Clause 16 - Rules about chairmen, deputy chairmen
and the bench: supplementary
58. Contains no delegated powers but qualifies
the powers in Clauses 14 and 15 to provide that rules are not
made without appropriate consultation.
59. Clauses 17-21 contain no delegated powers.
Clause 22 - Justices' clerks and assistant clerks
60. Clause 22(4) makes similar provision to s.44(3)
of the Justices of the Peace Act 1997, enabling the Lord Chancellor
to make regulations about the qualifications required for an assistant
to a justices' clerk (although in future these will be regulations
rather than rules). It is considered important that there should
be provision in a statutory instrument, so that it is clear what
minimum standard the Lord Chancellor will expect all assistant
clerks to meet.
61. This will be subject to negative resolution,
in keeping with current practice, and due to the fact that a high
level of parliamentary scrutiny is not necessary for such detailed
Clause 23 - Functions
62. Clause 23 makes the same provision as section
45 of the Justices of the Peace Act 1997 with minor amendments.
Currently section 144 of the Magistrates' Courts Act 1980 allows
the Lord Chancellor to make rules which, among other things, regulate
and prescribe the procedure and practice to be followed by justices'
clerks. He does so on the advice of, or after consultation with
the Magistrates' Courts Rule Committee. Clause 23 reflects that
in future the Lord Chancellor will also consult the Criminal Procedure
Rule Committee and the Family Procedure Rule Committee before
making such rules. These rules will, like the equivalent rules
under the current law, be subject to negative resolution. They
will deal with details about procedural matters within magistrates'
courts and will require amendment to reflect changes in other
primary legislation, for example imposing new functions on justices
of the peace.
63. Clauses 24-28 contain no delegated powers.
Clause 29 - Costs in legal proceedings
64. Clause 29 makes the same provision as section
53A of the Justices of the Peace Act 1997, with minor amendments.
This clause gives justices of the peace and their clerks statutory
immunity against being ordered to pay the costs of legal actions
arising out of the conduct of their judicial functions, unless
it is proved that they acted in bad faith. The clause empowers
the court to order the Lord Chancellor to pay any costs that,
but for the provisions of the clause, it would have ordered against
the justice or clerk. The clause also provides for the Lord Chancellor
to make regulations covering how the court is to exercise the
power to award costs against him and how those costs are to be
65. This power continues to be left to delegated
legislation as the issues to be covered in the regulations may
need to be changed from time to time. This is also to avoid including
details that are not appropriate to the face of the statute. This
will be subject to affirmative resolution as is currently the
case. This is appropriate in view of the fact that the regulations
make provisions in respect of costs orders which can be made against
the Lord Chancellor.
66. Clause 30 has no delegated powers.
Clause 31 - Fines officers
67. This clause contains two order making powers.
The first, under subsection (4) is necessary to enable the fine
enforcement measures set out in Schedule 2 to the Bill to be piloted.
Subsection (4) empowers the Lord Chancellor to bring into effect
the provisions of Schedule 2 to the Bill in relation to one or
more local justice areas. Subsection (5) stipulates that an order
under subsection (4) may make provision for modifying Schedule
2 or any enactment in connection with Schedule 2 in relation to
the specified local justice areas.
68. 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, a
discount for prompt payment and/or 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).
69. 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 Schedule 2. Therefore it is not necessary for this to be contained
in primary legislation or be subject to affirmative resolution.
70. 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.
71. The second order making power, under subsections
(6) and (7), is intended to be used once the pilot schemes established
under subsections (4) and (5) have been evaluated. Subsection
(6) provides that the Lord Chancellor may bring Schedule 2 into
effect in all local justice areas and indefinitely (i.e. to facilitate
national implementation of the scheme). Subsection (8) allows
the Lord Chancellor, when making an order under subsection (6)
to make such amendments to the provisions of Schedule 2 and any
other enactments as appear appropriate in the light of the pilot
schemes. The power is necessary to ensure that the fines package
can be modified in the light of experience, so that the enforcement
measures which are implemented nationally are both practicable
and effective in reducing arrears. Subsection (9) allows an order
made under clause 31 to make such transitional provisions as appear
to the Lord Chancellor to be appropriate. This would enable the
smooth progression from pilot schemes to a national scheme.
72. 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
(6) and (7) should be subject to affirmative resolution of Parliament.
Schedule 2: Collection of fines by fines officers
73. Schedule 2 sets out the circumstances in
which the Schedule applies, and the ability of the court to require
a financial penalty to be enforced through the "fines collection
74. The schedule provides for a "fines officer",
who as an officer of the court will be a civil servant, to manage
and administer the collection of fines. Under the schedule the
fines officer is able to apply a number of measures to enforce
the collection of the fine. The court will have the equivalent
powers as well as its existing enforcement powers and will be
the independent tribunal for appeal from fines officers' decisions.
The new powers of the fines officer and the court, including the
appeal process, are set out in primary legislation in Schedule
75. These new powers allow for an incentive for
payment in line with agreed terms (i.e. a discount) and discretion
to impose increasingly severe penalties (including an increase
in the fine and a clamping order) for continuing default. Where
a defaulter does not keep in contact a fines officer can issue
a summons requiring the defaulter to attend court. This saves
an administrative procedure on the part of the court. Again this
power is given to the fines officer by virtue of primary legislation.
As the fines collection scheme is being piloted amendments to
other acts need to be done by regulations until the completion
of the pilots. When the scheme (or a form of the scheme) is implemented
nationally these amendments will be placed before Parliament for
affirmative resolution by virtue of clause 31. A number of regulations
will be needed to deal with the details and procedures of the
76. Paragraph 2(5)(b) gives the power to the
Lord Chancellor to make regulations for the purpose of giving
effect to "the fines collection scheme". Regulations
made for this purpose are to be called the "fines collection
regulations". Various paragraphs of the Schedule (as listed
below) specify the measures for which fine collection regulations
may or must be made.
77. Paragraph 6(3) allows for fine collection
regulations to be made to set the level of any discount that may
be offered (50% or such lesser amount as may be stipulated). Subsection
(6) limits the amount of the discount that can be set in the regulations
to not more than 50% of the original fine.
78. Paragraph 10(3) allows for fine collection
regulations to be made to set the level of any increase that may
be imposed, that level being limited to no greater than 50% of
the original fine.
79. Paragraph 14(2)(b) defines a clamping order
as one that complies with any requirements that are imposed by
fines collection regulations with respect to the making of clamping
orders. The details of the procedure and safeguards to be taken
and circumstances which apply to the making of the order are to
be set out in regulations. Paragraph 23(1) lists a number of areas
where fine regulations may or must make provisions for the purpose
of giving effect to the power to make a clamping order. The regulations
may make provisions as to the fitting of immobilisation devices
and notices, the removal and storage of motor vehicles and the
circumstances or release of the vehicle and for the sale and destruction
of the vehicle. The regulations must provide that an immobilisation
device may not be fitted where there is reasonable grounds for
believing that the vehicle is used for a disabled person.
80. Paragraph 17(3) allows for fines collection
regulations to provide for the fines officer to have the power
to issue a summons to ensure a defaulter attends a magistrates'
court where the fines officer has referred the case back to court.
The summons would be concerned with telling a defaulter the date
and time to attend court where the defaulter's case has been sent
back to court. Failure to attend in accordance with the summons
results in the matter being brought back before the court, where
a decision is made as to the issuing of a warrant. The circumstances
and procedure for the issuing of the summons will be detailed
in the regulations.
81. Paragraph 24 allows for fines collection
regulations to make provision where a person subject to a collection
order changes his place of residence. This would detail the procedure
in moving a fines collection order to a fines officer of another
court and is essentially an administrative requirement.
82. Paragraph 25 allows for fines collection
regulations, for the purpose of giving effect to the Schedule
and Section 31, to make provision to modify any enactment which
related to the enforcement of sums due. It enables those Acts
to be amended for the purposes of the pilot scheme i.e. an amendment
to the Attachment to Earnings Act to allow an attachment to earnings
order to be made by a fines officer on default or, with the defaulters
consent, at any time.
83. The regulations made under the fines collection
regulations by virtue of paragraph 2(5)(b) are concerned with
administrative issues, procedures, or details of application.
Therefore it is not considered that primary legislation or affirmative
resolution would be required for any regulation made in pursuant
of paragraph 2(5)(b).
84. The level of detail and flexibility required
suggests that a high level of parliamentary scrutiny is not required.
Therefore the regulations will be laid before Parliament and subject
to negative resolution.
85. Clauses 32-34 contain no delegated powers.
Clause 35 - Regulations about payments, accounting
and banking by designated officers
86. Clause 35 contains provisions similar to
section 60A of the Justices of the Peace Act and will allow the
Lord Chancellor, with the concurrence of the Treasury, to make
regulations about the payment, accounting for and banking of money
paid to designated officers in the magistrates' courts. As now,
no provision is made for any Parliamentary procedure. The power
extends to all monies payable to a magistrates' court, not just
those (principally fines and court fees) due to the Lord Chancellor.
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.
87. Clauses 36-43 contain no delegated powers.
Clause 44 - Family proceedings courts
88. Clause 44 provides the Lord Chancellor with
powers to grant and remove personal authorisations to justices
of the peace and District Judges (Magistrates' Courts) to sit
as a member of family proceedings courts. The purpose of this
legislation is to ensure that only those justices and District
Judges (Magistrates' Courts) authorised by the Lord Chancellor
can sit as a member of a family proceedings court. The clause
provides that the Lord Chancellor may make rules as to how such
authorisations are granted and revoked, how chairmen of family
proceedings courts are appointed and as to the composition of
family proceedings courts.
89. The issues to be covered in the rules have
been left to delegated legislation as the level of detail makes
them inappropriate for primary legislation and also means that
they will require amendment from time to time in the light of
experience. Currently authorisation systems for magistrates are
covered by a complicated mixture of primary and secondary legislation
which we believe is inappropriate - we wish to be able to make
rules, and alter them, consistently and without need for primary
legislation. The rules will only be made after consultation with
the new Family Procedure Rule Committee and will be subject to
Clause 45 - Youth courts
90. Clause 45 provides for the Lord Chancellor
to grant and revoke personal authorisations to justices of the
peace and District Judges (Magistrates' Courts) to sit in youth
courts. The purpose of this legislation is to ensure that only
those justices and District Judges (Magistrates' Courts) authorised
by the Lord Chancellor can sit in youth courts.
91. The Lord Chancellor's rule-making powers
under this clause are equivalent to those set out in the preceding
clause (family proceedings courts), and are proposed for delegation
for the same reasons.
Clause 46 - Court security officers
92. Subsection 2 of clause 46 enables the Lord
Chancellor to specify, by way of regulations, the training to
be undertaken by court security officers and also any pre-conditions
which must be satisfied before anyone can be designated an officer.
This is to enable external scrutiny of the proposed training regime
and pre-qualification criteria to take place in order to ensure
that anyone who is so designated (and consequently entitled to
search, exclude, evict, restrain etc) is suitable and trained
to undertake their duties.
93. The matter has been left to delegated legislation
as we do not currently know in sufficient detail what the training
or pre-qualification criteria will comprise and we are looking
to the Home Office experience in training their Community Support
Officers to inform this process. This will be subject to negative
resolution of either House since these procedures do not justify
a high level of parliamentary scrutiny.
94. Clauses 47-50 contain no delegated powers.
Clause 51 - Regulations about retention of articles
95. As court security officers will have the
power to require surrender of or seize items in certain circumstances,
it is essential that any items so retained/seized but which are
uncollected are recorded in a suitable way and any eventual disposal
adequately recorded. Clause 51 enables the Lord Chancellor to
specify the nature of the records which have to be kept about
such unclaimed items, the period for retention and the acceptable
means of disposal. Again, it is important that these procedures
be subject to external scrutiny before implementation to ensure
that individuals' rights (of ownership or possession) are not
96. It is again proposed that this be by way
of negative resolution since the regulations simply ensure that
the power to retain articles is subject to suitable safeguards.
97. Clauses 52-53 contain no delegated powers.
Clause 54 - Functions of inspectors
98. Clause 54 establishes Her Majesty's Inspectorate
of Courts Administration. Clause 54(2) lists the courts which
the Inspectorate will inspect. Clause 54(3) provides that the
Lord Chancellor may, by order, add or remove courts which are
subject to inspection.
99. Delegated legislation is appropriate since
the power deals with administrative arrangements which may need
to be changed from time to time in light of experience and availability
of resources. The order will be subject to negative resolution
since the changes relate to courts which are already the responsibility
of the Lord Chancellor.
100. Clauses 55-58 contain no delegated powers.
Clause 59 - Power to alter judicial titles
101. Clause 59 delegates power to the Lord Chancellor
to alter the titles of certain judicial offices or the way in
which the holders of those offices are styled and to make consequential
102. The preceding clause (clause 58) deals with
a specific problem: the current requirement for an ordinary judge
of the Court of Appeal to be styled a "Lord" Justice
of Appeal whatever his or her gender. However, because some other
titles may need modernisation - to make them more helpfully explanatory
to court users or to deal with a change in the general acceptance
commanded by titles containing a presumption of male gender -
a power to make further changes in delegated legislation is necessary.
The Government would wish to consult on any new titles or styles
of postholders before making any changes.
103. The order making power extends only to the
titles of the posts and does not impact in any way upon the functions
associated with the posts. An order under this clause may be made
by the Lord Chancellor, after consultation with the four Heads
of Division of the Supreme Court, and is subject to the negative
resolution procedure since the power only extends to changing
a title - following consultation with the judiciary.
104. Clauses 60-63 contain no delegated powers.
Criminal Procedure Rules & Practice Directions
105. The Bill creates a new statutory Criminal
Procedure Rule Committee to make criminal procedure rules. At
present the Crown Court and the magistrates' courts have their
own separate Rule Committees (the Crown Court Rule Committee and
the Magistrates' Courts Rule Committee). Acting independently
of each other, neither committee has responsibility to ensure
consistency across the courts.
Clause 64 - Criminal Procedure Rules
106. Clause 64 provides that there should be
rules of criminal procedure, to be made by a Criminal Procedure
Rule Committee. The clause establishes the basis for the exercising
of any power to make or alter any criminal procedure rules. Those
powers must be exercised with a view to securing that the criminal
justice system is accessible, fair and efficient and that the
rules should be simple and simply expressed.
107. The Criminal Procedure Rule Committee will
take on responsibilities currently exercised by the Magistrates'
Courts Rule Committee and the Crown Court Rule Committee insofar
as they relate to rules of criminal procedure. It is intended
that the new Committee will develop the rules of procedure, in
a more consistent way, for all the criminal courts in England
and Wales. This in turn will underpin the goal of greater integration
in the criminal justice system.
108. The power will enable the Committee to make
rules governing the practice and procedure to be followed in the
criminal courts. The power (see clause 66) is required in order
to ensure that the Committee has flexibility to address all procedures.
The power is necessary in order to enable Committee to make prompt
arrangements to ensure that the courts are positioned to introduce
new procedures required as a result of further primary legislation.
The procedure for making rules is contained in clause 67.
109. Clause 65 contains no delegated powers.
Clause 66 - Power to change certain requirements
relating to Committee
110. Clause 66 contains powers to enable the
Lord Chancellor, after consulting the Lord Chief Justice, to change
the composition of the Criminal Procedure Rule Committee and to
make any consequential changes to any other provision in clause
65 in which membership of the Committee is set out.
111. These powers are required in order to provide
flexibility in the arrangements for the constitution of the Committee
and are necessary in order to ensure that, once established, the
Committee will continue to be representative of the criminal justice
community without requiring further primary legislation. The power
to amend the membership is similar to those already established
in statute for the Magistrates' Courts Rule Committee - s.144(2)
of the Magistrates' Courts Act, 1980, refers. However, this clause
proposes that the Lord Chancellor must consult the Lord Chief
Justice before making any such order.
112. A high level of Parliamentary scrutiny is
not necessary since the changes will only be made to enable the
effective working of the Committee. Delegated legislation is appropriate
since the power deals with administrative arrangements which may
need to be changed from time to time. Negative resolution is appropriate
as the Lord Chancellor must consult with the Lord Chief Justice
beforehand and changes will only be made to enable the effective
working of the Criminal Procedure Rule Committee.
113. This power will be exercised by order, to
mirror the arrangements already in existence for the Civil Procedure
Rule Committee and is in keeping with provisions for the new Family
Procedure Rule Committee.
Clause 67 - Process for making Criminal Procedure
114. Clause 67 sets out the procedure to be followed
by the Criminal Procedure Rule Committee in making rules and by
the Lord Chancellor in dealing with those rules.
115. When the Criminal Procedure Rule Committee
is established, the power to make rules of criminal procedure
will be vested in one Committee. The new arrangements will enable
the Committee to review the procedures to be followed in the criminal
courts and introduce simple rules to establish efficient practices.
The Rules made by the Committee will be submitted to the Lord
Chancellor as a matter of course.
116. Clause 67 provides for the Lord Chancellor,
with the concurrence of the Home Secretary, to allow, disallow
or alter rules made by the Committee. The power to alter any rules
made by the Committee is required in order to ensure consistency
in the making of rules of court. It is not intended that the Lord
Chancellor should use this power to make rules of his own volition
or to add something unrelated to the Rules made by the Committee
and the Rules may only be altered after consultation with the
117. This provision will be subject to negative
resolution of either House. The power to make rules of court has
historically been established in primary legislation and is exercised
by delegated legislation. It is not considered necessary to alter
this arrangement. As with other rules of court, Criminal Procedure
Rules will be subject to frequent review and, as necessary, amendment.
A high level of Parliamentary scrutiny is not considered appropriate
for two reasons. First, that the power is to be exercised with
the agreement of the Home Secretary and second, given the historical
precedents of the powers of the Lord Chancellor to make rules
of court, for example in s. 144(4) of the Magistrates' Courts
Act, 1980 and s. 84(8) of the Supreme Court Act, 1981. There is
no reason to alter the method for the new Committee, as similar
flexibility to make rules is required.
Clause 68 - Power to amend legislation in connection
with the rules
118. Clause 68 introduces a power for the Lord
Chancellor, with the agreement of the Home Secretary, to amend
or repeal any enactment, or amend or revoke any provision of subordinate
legislation, to the extent considered necessary or desirable in
order to facilitate the making of Criminal Procedure Rules, or
in consequence of Criminal Procedure Rules.
119. The power is needed in order to ensure that
any anomalies in the criminal law can be dealt with promptly and
appropriately, enabling new procedures and practices to be introduced.
The power will enable the Lord Chancellor, in consultation with
the Home Secretary, to take swift remedial action. The scope of
this power is narrowly defined, being limited to the facilitating
of the making of Criminal Procedure Rules, or in consequence of
Criminal Procedure Rules. It would not be practical or desirable
to detail such provisions in primary legislation.
120. We have also taken note of the 1973 Joint
Committee's recommendations on Delegated Legislation - amendments
by virtue of this section will be relatively minor and affirmative
resolution would not be justified. This adopts a similar approach
to that specified for rules of civil procedure, as set out in
the Civil Procedure Act, 1997. In this case, however, the Lord
Chancellor will only exercise the power with the express agreement
of the Home Secretary, who has responsibility for criminal policy.
121. Clause 69 contains no delegated powers.
Family Procedure Rules & Practice Directions
122. Clauses 70-76 of the Bill make provision
for a single Family Procedure Rule Committee with power to make
rules for the magistrates' courts as well as the higher family
courts. This is consistent with the criminal procedure changes.
Clauses 71-73 contain the basis for the establishment of the Committee.
123. Clauses 70-72 contain no delegated powers.
Clause 73 - Power to change certain requirements
relating to Committee
124. The power in clause 73 allows the Lord Chancellor,
after consulting the President of the Family Division, to alter
the composition of the Family Procedure Rule Committee (FPRC)
125. This matter has been left to delegated legislation
as it is felt that should the composition of the committee need
to be altered, it would be an inappropriate use of Parliamentary
time if this had to be done by primary legislation. In light of
the experience of the Civil Procedure Rule Committee, and as the
FPRC is a new body, it is considered necessary to have the power
to alter the composition of the FPRC by secondary legislation.
Negative resolution is appropriate since the Lord Chancellor must
consult with the President of the Family Division before amending
the membership of the Committee and changes will only be made
to enable the effective working of the FPRC.
Clause 74 - Process for Making Family Procedure
126. The power enshrined in clause 74 enables
the Family Procedure Rule Committee to make rules for all levels
of court in the family jurisdiction by delegated legislation.
The Rules made by the Committee will be submitted to the Lord
Chancellor by the Family Procedure Rule Committee as a matter
127. The power to make rules of court has historically
been left to delegated legislation, and it is not considered necessary
to alter this arrangement. (The power to make rules is set out
in primary legislation and is exercised by delegated legislation).
As with other rules of court, Family Procedure Rules are likely
to need frequent amendment. Rules contained in primary legislation
would be unwieldy and inflexible. The Family Procedure Rules are,
like other rules of court, procedural rules which are best settled
in the light of judicial and legal experience. The Rules will
be made by negative resolution. This mirrors the provisions in
the Civil Procedure Act, which established the Civil Procedure
Rule Committee and which was the model closely followed in developing
Clause 75 - Power to amend legislation in connection
with the rules
128. Clause 75 mirrors the provision put forward
in relation to the Criminal Procedure Rule Committee (CrimPRC),
and is modelled on s.4 of the Civil Procedure Act 1997 (CPA 1997).
129. At present s.4 of the CPA 1997 allows the
Lord Chancellor by order to amend, repeal or revoke any enactment
in consequence of Civil Procedure Rules (subject to negative resolution),
and under s.4(2) to the extent the Lord Chancellor considers necessary
or desirable to facilitate the making of Civil Procedure Rules
(subject to affirmative resolution).
130. Clause 75 allows the Lord Chancellor to
amend, repeal or revoke primary legislation in anticipation of,
or as a consequence of Family Proceedings Rules, and this will
be subject to the negative resolution procedure.
131. The great majority of amendments, repeals
and revocations made by virtue of this section will be relatively
minor and will not justify affirmative resolution. We have also
taken note of the 1973 Joint Committee on Delegated Legislation's
recommendations. It would be useful to retain the affirmative
resolution procedure for those orders which make substantial revision
to provisions of Acts of Parliament. However, there appears to
be no real objective criterion by which such amendments could
be judged or defined. In practical terms, we would expect any
amendments to Acts of Parliament in anticipation, or as a consequence,
of Family Procedure Rules would be limited to minor 'tidying'
measures, for example alteration of nomenclature, i.e. altering
'writ' to 'claim form', and not substantive alterations. There
is not, therefore, any need for affirmative resolution procedure
in this case.
132. Clauses 76-78 contain no delegated powers.
Clause 79 - Power to change certain requirements
relating to Committee
133. Clause 79 allows the Lord Chancellor to
alter the composition of the Civil Procedure Rule Committee (CivilPRC)
after consultation with the judiciary. This power to amend the
composition of the Committee only extends to appointed members
under s.2 (2) of the Civil Procedure Act 1997. This is necessary
to accommodate the development of the Civil Procedure Rules and
the need for the Committee to have the necessary expertise available
from its membership. This will be subject to negative resolution
of either House of Parliament, the same level of scrutiny as for
the rules made by the committee. A high level of parliamentary
scrutiny is not necessary since the changes will only be made
to enable the effective working of the CivilPRC.
Clause 80 - Process for making Civil Procedure
134. The Civil Procedure Rules (CPR), created
under the Civil Procedure Act 1997 (the 1997 Act), govern the
practice and procedure of the civil division of the Court of Appeal,
the High Court and the county courts.
135. Clause 80 allows for the Lord Chancellor
to allow, disallow or alter rules made by the Committee. It is
not intended that the Lord Chancellor should use this power to
make rules of his own volition or to add something unrelated to
the Rules made by the Committee, and the Rules may only be altered
after consultation with the Committee.
136. This provision will be subject to negative
resolution of either House of Parliament given the historical
precedents. Historically the power of the Lord Chancellor to alter
County Court rules dates back to the County Courts Act 1888 and
the rules of the Supreme Court could only be made with the agreement
of the Lord Chancellor.
137. Clauses 81-86 contain no delegated powers.
Clause 87 - Fees
138. Clause 87 provides a single unified power
for the Lord Chancellor to prescribe the fees payable in the Supreme
Court, county courts and the magistrates' courts. This single
power replaces the current separate powers under section 130 of
the Supreme Court Act 1981, section 128 of the County Courts Act
1984 and section 137 of the Magistrates' Courts Act 1980 for civil
work; and s.137(4) of the Magistrates' Courts Act 1980 and s.41
of the Matrimonial and Family Proceedings Act 1984 for family
139. The power provides for the Lord Chancellor
to make either a single fees order covering all three tiers of
court or separate orders covering one or more tiers of court.
It will also allow the Lord Chancellor to set different fees and
different levels of fees for the three different tiers of court,
and to set different fees for family, civil and criminal matters.
140. This power is to be contained in delegated
legislation as it is sometimes necessary to amend the level of
court fees if the business costs and requirements of the courts
change during a year, due to unforeseen circumstances. It is also
sometimes necessary to set new fees, for example, as a result
of the introduction of new Government legislation which may place
new or additional requirements on the courts. These changes may
need to be introduced quickly. As such, it would not be appropriate
for such matters to be dealt with on the face of the Bill, or
to require further primary legislation.
141. In common with the convention adopted by
both Houses of Parliament in respect of Fees Orders issued under
the current separate powers, any Fees Orders laid under the new
unified fee setting power will be laid before Parliament and will
not be subject to affirmative or negative resolution. However,
any Fees Orders made under this new power will be subject to obtaining
the Treasury's consent and wide consultation with the relevant
Heads of Division, the Head and Deputy Head of Civil Justice,
and for civil business only, the Civil Justice Council; as well
as, in relation to family and criminal matters, such other body
as the Lord Chancellor considers appropriate. Proposals for a
body similar to the Civil Justice Council for the family justice
system are currently being considered. Should this body be established,
it would be consulted on family fee increases. The same will apply
in relation to the non-statutory Criminal Justice Council likely
to be created as part of the Home Office's Auld reforms. Until
then there is no appropriate body to consult in relation to family
and criminal fees.
142. Subsection 2 of clause 87 enables the Lord
Chancellor when exercising his order making power under subsection
1, to make provision for fees concessions in the areas of automatic
exemption from the payment of fees, and remission and reductions
of fees. The Lord Chancellor already prescribes the criteria for
exemption, remission and reduction of fees in the exercise of
his general power to prescribe the fees to be taken in the Supreme
Court and county courts, whereas for the magistrates' courts it
is expressly provided in section 138 and Part 1 of Schedule 6
of the Magistrates' Courts Act 1980. Subsection 2 lays out, expressly,
that the Lord Chancellor may exercise his fee making power in
relation to exemption, remission or reduction of court fees in
all of these courts and will allow the introduction of a single
143. This is contained in delegated legislation
as the criteria for automatic exemption in the Supreme and County
Courts are linked to qualifying social security benefits or tax
credits which may change and need to be dealt with quickly.
144. Currently, criteria for exemptions from
paying fees are laid before Parliament and are not subject to
affirmative or negative resolution. Unlike the existing powers,
the Bill ensures that the criteria for automatic exemption from
court fees will (like the rest of any proposed fees order) be
subject to wide consultation with the judiciary and appropriate
bodies as above. The remission or reduction of court fees is not
automatic and is subject to the exercise of discretion by court
officers on behalf of the Lord Chancellor. Guidance and criteria
for court staff will be placed in the libraries of the Houses
Clause 88 - Award of costs against third parties
145. Clause 88 gives the Lord Chancellor the
power to make regulations empowering the courts to order costs
against a non-party. This is achieved by inserting a new section
into Part 2 of the Prosecution of Offences Act 1985.
146. The draft clause therefore inserts a new
section (section 19B), into the 1985 Act. Sections 19B(1), 19B(2)
and 19B(3) empower the Lord Chancellor to make the relevant regulations,
allowing the criminal courts to order a non-party to pay all or
some of any costs wasted or incurred unnecessarily by a party
or parties to proceedings as a result of the improper or unnecessary
action of a third party.
147. Section 19 of the Prosecution of Offences
Act 1985 deals with costs incurred by one party as a result of
the improper or unnecessary action of another. Section 19(1) of
the 1985 Act is a regulation-making power for the Lord Chancellor
to empower the criminal courts to make an order for costs incurred
"as a result of an unnecessary or improper act or omission
by, or on behalf of, another party to the proceedings". The
new section seeks to extend potential liability for such unnecessary
costs to third parties. It follows section 19 in providing for
the Lord Chancellor to introduce the power by making regulations.
This approach would enable the Lord Chancellor to provide that
only some levels of criminal court should have the new power.
148. Subsection 19B(4) provides for the regulations
to deal with issues of detail:
- paragraph (a) allow regulations to prescribe
when an order can be made; this could be at any time during the
proceedings or for a reasonable afterwards;
- paragraphs (b) and (c) enable regulations to
ensure that the court may take account of other costs orders,
or grant of funding by the Legal Services Commission, made in
Similar powers are already provided by subsection
19(2) of the 1985 Act.
149. Subsections 19B(5) and 19B(6) require regulations
to provide a right of appeal against the making of a third party
order at (5) and (6) by a magistrates' court or the Crown Court.
Similar powers already exist in section 19A(2) of the 1985 Act.
150. The new powers, like the regulation making
powers that can already be found in sections 19, 19A and 20 of
the 1985 Act, will be subject to the negative resolution procedure.
As the clause is concerned with the court's power to make an order
for costs, which is primarily a procedural matter, it is appropriate
that this is dealt with in secondary rather than primary legislation.
The proposed regulation making power will provide a remedy that
would be used only at the court's discretion.
151. Clause 89 contains no delegated powers.
Clause 90 - Register of judgments and orders etc.
152. Clause 90 when enacted will repeal sections
73 and 73A of the County Courts Act 1984. Under the County Courts
Act a register of judgements and orders is kept. A new register
of default will be created by this new clause so that one register
can be kept for all defaults in the civil and criminal courts.
153. Subsection (2) allows for regulations to
be made by the Lord Chancellor for the purpose of clause 90, and
subsection (3) lists specific areas that the regulations may provide
for. These include circumstances previously included in section
73, which are: exclusion of specified classes of judgments, orders
or adjudged sums and the circumstances in which they can be exempted.
Additional requirements are contained in clause 90 so that regulations
may be made to prescribe the circumstances in which an entry in
the register is to be cancelled and in 3(d) to allow for the circumstances
in which default in the criminal courts can be registered. The
civil defaults work in the way that all judgements are registered
unless one of the exceptions applied. Subsection 3(d) is necessary
as in criminal cases only certain cases, i.e. where default has
occurred, will be registered and they will be considered on an
individual basis. The registering of criminal defaults is a measure
that can be used by the fines officers or magistrates' court under
the fines collection scheme contained in Schedule 2.
154. It is not considered that a high level of
scrutiny by Parliament would be required for details of the circumstances
and procedure concerning an entry on the register. Therefore primary
legislation or affirmative resolution would not be suitable and
it is proposed that the regulations be laid before Parliament
and subject to negative resolution. This would also be in keeping
with the current practice as set out in section 73 of the County
Courts Act 1984.
Clause 91 - High Court writs of execution
155. Clause 91 and Schedule 5 to the Bill provide
for a new system of enforcement of High Court writs, removing
this obligation from Sheriffs.
156. Paragraph 4(5) of the schedule allows the
Lord Chancellor or his delegate to approve the arrangements that
will apply in certain circumstances for the allocation of writs
to enforcement officers. These will be administrative arrangements
based on existing arrangements for the distribution of writs to
Under Sheriffs. The character and detailed nature of those arrangements,
and the importance of being able to amend and adapt them swiftly
and informally, make it appropriate for them to be approved in
157. Paragraph 12 of the schedule delegates to
the Lord Chancellor the power to make regulations defining enforcement
districts (see also paragraph 1 of the schedule), prescribing
the fees to be taken by enforcement officers, and making detailed
provision in relation to the authorisation of enforcement officers.
The regulations will be subject to negative resolution. The character
and detailed nature of those various provisions make them appropriate
for delegation to the Lord Chancellor, and inappropriate to affirmative
resolution. Fees are likely to be modelled closely on the sheriffs'
fees already fixed by the Lord Chancellor under section 20 of
the Sheriffs Act 1887. The Lord Chancellor will be required to
consult with the Heads of Division of the High Court, the Master
of the Rolls and the Head of Civil Justice (if not one of those
others). Each of those senior judges has an obvious interest in
the effective enforcement of the High Court's judgments.
Clauses 92 and 93 - Periodical payments: jurisdiction
158. Clause 92 replaces section 2 of the Damages
Act 1996 for England, Wales and Northern Ireland with new sections
2, 2A and 2B, and gives courts the power to order periodical payments
for future pecuniary loss in personal injury cases without the
consent of the parties. It also requires courts to consider whether
to make such an order. The amendments implement proposals set
out in the LCD's consultation paper "Damages for Future Loss",
published in March 2002 and which were supported by the majority
of those who responded to the consultation.
159. Subsection (1) of new section 2A provides
that Civil Procedure Rules may require the court to take specified
matters into account when considering a) whether to order periodical
payments, b) the security of the continuity of payment and c)
whether to approve an assignment or charge. The Civil Procedure
Act 1997 provides that Civil Procedure Rules are subject to annulment
in pursuance of a resolution of either House of Parliament.
160. Subsection 2A (1) (a): Periodical payments
Subsection (1) of the new section 2 provides that
courts may order periodical payments without consent. This creates
a new judicial power and it is necessary to provide criteria to
assist the judiciary and the parties in identifying appropriate
cases, and to ensure clarity and consistency in its application.
In addition, as this is a developing area of law, it is essential
that there is flexibility to adjust the specified matters in the
light of experience. For these reasons, and given the level of
detail required, provisions governing the appropriate use of periodical
payments are thought to be best dealt with through delegated legislation.
Subsection 2A (1) (b): Security of the continuity
It is essential that periodical payments for future
loss are secure, and that they are protected in the event of the
failure of the funding provider. The court will need to be satisfied
as to this security before making a periodical payment order.
The Bill provides statutory protection for periodical payments
made by insurers and certain public bodies under section 4 of
clause 93. However, it may be that the court will be asked to
consider other funding options that may emerge or develop in light
of experience. It is envisaged that any rules made under subsection
1(b) of new section 2A would specify matters that the court should
consider when assessing the security of funding methods that do
not attract the statutory protection provided by the Bill. It
is essential that these matters can be specified or changed swiftly
in the light of experience and to reflect any future developments
in funding options. This is therefore thought best dealt with
through delegated legislation.
Subsection 2A (1) (c): Assignment
Subsection (6) of new section 2 prevents assignment
of the right to receive periodical payments without the approval
of the court. Rules will provide the judiciary with guidance on
what the court should take into account when considering whether
compelling reasons exist for assignment. The level of detail and
substance of this is thought inappropriate for primary legislation
and it is therefore best dealt with in delegated legislation.
161. Subsection (1) of new section 2B provides
that the Lord Chancellor may by Order enable a court which has
made an order for periodical payments to vary the order in specified
circumstances. Subsection (2) provides that the Lord Chancellor
may by order enable a court to vary periodical payments provided
for in a settlement, where the terms of the settlement expressly
permit a party to apply for variation.
162. In order to meet the future needs of claimants
most accurately, it is considered desirable that under certain
circumstances the court should be able to vary the level of payments
specified in the original order or settlement. Subsections 2B(1)
and (2) provide a power for the Lord Chancellor to prescribe the
circumstances under which courts can vary original orders or settlements
for periodical payments. Subsection 2B(3) lists the nature of
the provisions that such an order for variation might contain.
163. It is considered appropriate that provisions
governing the specific nature of variable periodical payments
should be contained in delegated legislation. This is a developing
area of law and one which the Government considers requires a
cautious approach to strike the right balance between ensuring
that claimants receive compensation which accurately reflects
their needs without imposing unacceptable burdens on the NHS and
insurers. It is intended initially to provide only very limited
scope for variation in line with the results of the recent consultation.
Subsequently, in the light of experience, and developments in
the insurance market, the Government may wish to extend or limit
further the extent of review. Any order will be subject to appropriate
consultation and affirmative resolution.
164. Subsection (4) of the new section 2B is
a power to amend primary legislation that will allow consequential
amendments to be made to legislation concerning provisional damages.
Section 32A of the Supreme Court Act 1981 provides that a court
may make an order for provisional damages and may then, at a later
date, make an order for further damages. As provisional damages
may in future be awarded alongside variable periodical payments,
consequential amendments might need to be made to the 1981 Act
to ensure consistency of approach in application and procedure.
165. Subsection (6)(c) of the new section 2B
provides that an order made under subsection 2B(1) or (2) shall
be subject to approval by resolution of each House of Parliament;
this is because the order contains a power to amend primary legislation,
may be controversial and may have financial implications for claimants,
defendants and their insurers. Subsection (6) (b) of the new section
2B provides that the exercise of the power is subject to a duty
of prior consultation with such persons as the Lord Chancellor
Clause 94 - Power to alter judicial titles: Northern
166. Clause 94 delegates power to the Lord Chancellor
to alter the titles of certain judicial offices or the way in
which the holders of those offices are styled and to make consequential
amendments in Northern Ireland. This is the same provision as
that in clause 59 for England and Wales.
167. Clauses 95-97 contain no delegated powers.
Clause 98 - Minor and consequential amendments,
168. Clause 98 enacts the consequential and repeal
Schedules of the Bill. Subsection (3) allows the Lord Chancellor
to make an order for supplementary, consequential and transitional
provisions, while subsection (4) makes it clear that such an order
can, if necessary, amend or repeal other enactments. This type
of clause is not unusual in Bills which reform existing statutory
schemes and therefore require transitional provisions and/or which
have a large number of consequential amendments, see for example
the Adoption and Children Act 2002. The Bill does not currently
include any transitional provisions and Ministers will decide
in due course whether they will seek to introduce any such provisions
by amendment to the Bill. If that is not possible, then a power
to make transitional provision by order is essential, for example
to make provision for existing court security staff in the higher
courts to be designated court security officers and acquire the
enhanced security powers in Part 4, or to ensure that information
registered in the current register of judgments can be transferred
to the new register of judgments and orders. Schedule 6 contains
312 minor and consequential amendments arising from, among other
things, provisions in this Bill abolishing magistrates' courts
committees, the post of justices' chief executive, commission
areas and petty sessions areas. Given the scale of these consequential
amendments, the power contained in clause 98 is considered necessary
for two reasons. Firstly, further statutory references in need
of amendment may come to light that have not been provided for
in the Bill. Secondly, and more importantly, Bills in the current
parliamentary session that contain references to petty sessions
areas could be implemented before provisions in the Courts Bill,
requiring a consequential amendment.
169. This has been left to delegated legislation
as these are transitional, minor and consequential provisions
which are necessary to fulfil the provisions of the Bill, once
it has been scrutinised and completed its parliamentary passage.
The consequential amendments will not affect the substance of
the statutes concerned. It is also impossible to know which other
Bills in the session will get Royal Assent before the Courts Bill.
This is subject to negative resolution in view of the fact that
these will only be transitional and consequential amendments and
follows precedents in other legislation.
170. Clauses 99-101 contain no delegated powers.
Clauses containing powers to make secondary
||Affirmative or Negative Resolution
||Establishment of court administration councils
||Local justice areas
||Laying only (first order) then negative
||Lay justices' allowances
||Chairmen and deputy chairmen: selection
||Right to preside and size of bench
||Justices' clerks and assistant clerks (qualifications)
||Functions (of justices' clerks and assistants)
||Costs in legal proceedings
||35||Regulations about payments, accounting and banking by designated officers
||44||Family proceedings courts
||46||Court security officers
||51||Regulations about retention of articles
||54||Functions of inspectors
||59||Power to alter judicial titles
||66||Power to change certain requirements relating to Committee
||67||Process for making Criminal Procedure Rules
||68||Power to amend legislation in connection with the rules
||73||Power to change certain requirements relating to Committee
||74||Process for making Family Procedure Rules
||75||Power to amend legislation in connection with the rules
||79||Power to change certain requirements relating to Committee
||80||Process for making Civil Procedure Rules
||88||Award of costs against third parties
||90||Register of judgments & orders etc.
||Schedule 5 (91)
||High Court writs of execution
||92||Periodical payments: jurisdiction
||94||Power to alter judicial titles: Northern Ireland
||98||Minor and consequential amendments, repeals, etc