Title: Protection of Freedoms Bill
Author: Charles Goldie
Last saved by: Ed Collington
Company: Home Office

Crime and Courts Bill
Delegated Powers – Supplementary Memorandum by the Ministry of Justice

1.	The Government has tabled amendments to Part 2 of the Bill for Lords Committee stage, a number of which amend provisions relating to delegated powers. This supplementary memorandum explains in each case why the power has been amended. The amendment numbers are those that appear in the revised second marshalled list published on 20 June 2012. 

Amendment 75: Amendment to section 374 of the Insolvency Act 1986 by paragraph 51AP(g) of new Part 2A of Schedule 9 to the Bill – power to insolvency districts

Power conferred on:	 	The Lord Chancellor 

Power exercisable by:	 	Order made by statutory instrument 

Parliamentary procedure: 	Laid only

2.	Section 374 of the Insolvency Act 1986, enables the Lord Chancellor, by order, with the concurrence of the Lord Chief Justice, to designate particular areas of England and Wales as insolvency districts and, within those districts, to confer jurisdiction on certain county courts to hear insolvency proceedings. The amendment to this section reflects the establishment of a single county court, (which, accordingly, means that the power to confer jurisdiction upon, or remove jurisdiction from, a particular county court has been omitted), while retaining the Lord Chancellor’s current power to designate particular areas as insolvency districts with the concurrence of the Lord Chief Justice. The Government is satisfied that the amendment is needed in consequence of the creation of the single county court.

3.	Orders made under the power in section 374 of the Insolvency Act 1986 are not subject to any parliamentary procedure (see section 374(3) of that Act). The Government does not consider that this should be amended simply by virtue of the amendments to the 1986 Act.

Amendment 92: Amendment to section 38(4) of the County Courts Act 1984 - amendment of the power to make regulations about orders which the court may not make

Power conferred on:	The Lord Chancellor (after consulting with the Lord Chief Justice)

Power exercisable by:		Regulations made by statutory instrument

Parliamentary procedure: 	Affirmative resolution

4.	Section 31E(1) of the Matrimonial and Family Proceedings Act 1984, inserted by Schedule 10 to the Bill, provides that in any proceedings in the family court, the court may make any order which could be made by the High Court or the county court (were the proceedings in that court). This provision is subject to section 38(3) of the County Courts Act 1984 (see section 31E(3) of the Matrimonial and Family Proceedings Act 1984).

5.	In turn, paragraph 56 of Schedule 10 to the Bill as introduced amends section 38(3) of the County Courts Act 1984. As amended, that section will provide that neither the county court nor the family court has (amongst other things) the power to make any order of a “prescribed” kind. The reference to “prescribed” then links to regulations made under section 38 of the County Courts Act 1984 by the Lord Chancellor, after consulting with the Lord Chief Justice (section 38(5) so provides).

6.	Section 38(4) of the County Courts Act 1984 sets out what regulations under subsection (3) may provide; for example, for any of their provisions not to apply in such circumstances as may be specified in the regulations.

7.	Amendment 92 amends section 38(4) of the County Courts Act 1984 to state that regulations under subsection (3) may make different provision for different purposes.

8.	This amendment is considered necessary to put beyond doubt that regulations under section 38(3) of the County Courts Act 1984 may, for example, provide that certain judges of the family court may not make certain orders. 

9.	Regulations made under section 38(3) are subject to the affirmative resolution procedure (section 38(7) so provides) and the Government does not consider there to be a need to amend that simply because of the tabled amendment to section 38(4).

Amendment 93: Amendment to section 53(2) of the Administration of Justice Act 1985 - amendment associated with the power to prescribe the sum which payments of reimbursement of costs must not exceed

Power conferred on:	The Secretary of State, with the concurrence of the Treasury

Power exercisable by:		Order made by statutory instrument

Parliamentary procedure:	Negative resolution

10.	Section 53(2) of the Administration of Justice Act 1985 provides that if a judge dies or becomes incapacitated during proceedings and a party incurs additional costs as a result, the Secretary of State may reimburse those costs. The sum is to not exceed such sum as the Secretary of State may by order prescribe.

11.	Section 53(2) of the 1985 Act sets out the proceedings to which the provision applies. Amendment 93 amends this subsection to refer to proceedings in the family court.

12.	This may be seen as an alteration of the scope of the order-making power. The Government considers it is appropriate to make this amendment ensure parity for the family court with other courts. 

13.	An order made under the power is currently subject to the negative resolution procedure (section 53(8) of the 1985 Act) and the Government does not consider that this requires amendment simply because of the tabled amendment to section 53(2). 

Amendment 94: Amendment to section 28 of the Courts Act 2003 - power to delegate functions of a single justice to a justices’ clerk

Power conferred on:	The Lord Chancellor, with the concurrence of the Lord Chief Justice

Power exercisable by:		Rules made by statutory instrument

Parliamentary procedure:	Negative resolution

14.	Section 28(1) of the Courts Act 2003 is a power for rules to make provision enabling things authorised to be done by, to or before a single justice of the peace to be done instead by, to or before a justices’ clerk.

15.	New section 31O of the Matrimonial and Family Proceedings Act 1984, inserted by Schedule 10 to the Bill, gives the Lord Chancellor power to make rules in relation to the functions of legal advisers and assistant legal advisers in the family court. Legal advisers and assistants are the same people as justices’ clerks and assistant justices’ clerks (see new section 31O(1) and (2) of the Matrimonial and Family Proceedings Act 1984 inserted by the Bill).

16.	This new power in the Matrimonial and Family Proceedings Act 1984 is exercisable with the agreement of the Lord Chief Justice, after consultation with the Family Procedure Rule Committee (see new section 31O(4) of the Matrimonial and Family Proceedings Act 1984). 

17.	Given this new power in the Matrimonial and Family Proceedings Act 1984 it will not be necessary to exercise the power in section 28(1) of the Courts Act 2003 as regards functions of the family court. 

18.	This being the case, amendment 94 inserts a new subsection (5A) into section 28 of the Courts Act 2003 to remove functions of a judge of the family court. Section 28 is also amended to remove the need to consult with the Family Procedure Rule Committee regarding rules made under that section. 

19.	It follows that this amendment alters the scope of the rule-making power in the Courts Act 2003. The Government considers the amendment to be necessary in consequence of the new power taken in section 31O of the Matrimonial and Family Proceedings Act 1984.

20.	Rules made under the power in section 28 of the Courts Act 2003 are currently subject to the negative resolution procedure and the Government does not consider that this should be amended simply as a result of the amendments made by amendment 94.

Amendment 95: Amendment to paragraph 1(10) of Schedule 3 to the Legal Services Act 2007 - associated with the power to prescribe what are “reserved family proceedings”

Power conferred on:	The Lord Chancellor, after consulting with the President of the Law Society and with the concurrence of the President of the Family Division

Power exercisable by:		Order made by statutory instrument

Parliamentary procedure:	Negative procedure

21.	Paragraph 1 of Schedule 3 to the Legal Services Act 2007 makes provision for when a person is an “exempt” person for the purposes of exercising a right of audience before a court in relation to any proceedings. Paragraph 1(7) of Schedule 3 is amended by amendment 95 to provide that a person is exempt if (amongst other things) the proceedings in relation to which the right of audience is to be exercised are not “reserved family proceedings”. 

22.	This links to the definitions of “family proceedings” and “reserved family proceedings” in paragraph 1(10) of Schedule 3 to the Legal Services Act 2007. The definition of “family proceedings” is amended by amendment 95 to include any proceedings in the family court.

23.	The term “reserved family proceedings” means such category of family proceedings as the Lord Chancellor may by order prescribe (after consulting with the President of the Law Society and with the concurrence of the President of the Family Division).

24.	By amending the definition of “family proceedings” it is arguable that the scope of what may be prescribed as “reserved family proceedings” will be altered. The Government is satisfied that the amendment is necessary in consequence of the creation of the family court.

25.	An order made under the power in paragraph 1(10) of Schedule 3 to the Legal Services Act 2007 is subject to the negative resolution procedure (see section 206(1) of that Act). The Government does not consider that this requires amendment simply in light of the consequential amendment being made to the definition of “family proceedings”.

Amendment 101: New paragraph 27K of Schedule 10 to the Bill: amendment to section 18 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 - provision as to rules of court

Amendment 101: New paragraph 27Z1 of Schedule 10 to the Bill: amendment to section 38A of the Maintenance Orders (Reciprocal Enforcement) Act 1972 - provision as to rules of court

Amendment 102: New paragraph 55A(16) of Schedule 10 to the Bill: amendment to section 48(3) of the Civil Jurisdiction and Judgments Act 1982: provision as to rules of court

Power conferred on:	The Family Procedure Rule Committee (allowed by the Lord Chancellor), under section 75 of the Courts Act 2003

Power exercisable by:		Rules made by statutory instrument

Parliamentary procedure:	Negative resolution

26.	Section 18 of the Maintenance Orders (Reciprocal Enforcement) Act 1972 (“the 1972 Act”) sets out what rules of court may make provision for with respect to Part 1 of the 1972 Act. Section 38A of the 1972 Act sets out what rules of court may make provision for with respect to under Part 2 of the 1972 Act.

27.	Section 48 of the Civil Jurisdiction and Judgments Act 1982 (“the 1982 Act”) sets out what rules of court may make provision for with respect to the 1982 Act (and other matters specified in subsection (1) of that section).

28.	The 1972 Act and the 1982 Act are amended by amendments 101 and 102 respectively. The purpose of the amendments is primarily to ensure that where currently a matter under the 1972 Act or the 1982 Act is currently dealt with in a magistrates' court in England and Wales, it will in future be dealt with in the family court.

29.	Sections 18 and 48 of the 1972 Act and section 48 of the 1982 Act are amended by amendment 101 and 102 respectively to reflect this change. 

30.	Rules of court relating to the 1972 Act and the 1982 Act will be the Family Procedure Rules. This is by virtue of the fact that section 75 of the Courts Act 2003 as amended by the Bill (see paragraph 77(3) of Schedule 10 to the Bill as introduced) will provide that the Family Procedure Rules apply in respect of proceedings in the family court.

31.	It follows that, as regards England and Wales, references to “rules of court” in sections 18 and 48 of the 1972 Act and section 48 of the 1982 Act will mean Family Procedure Rules. The amendments made to those sections by amendments 101 and 102 are arguably altering the scope of the rule-making power in section 75 of the Courts Act 2003. The Government is satisfied that the amendments are needed in consequence of the creation of the family court.

32.	Rules made under the power in section 75 of the Courts Act 2003 are subject to the negative resolution procedure (see section 79(6) of that Act). The Government does not consider that this should be amended simply by virtue of the amendments to the 1972 Act and 1982 Act.

Amendment 102: New paragraph 55A(3) and (8) of Schedule 10 to the Bill: amendments to section 5(2) and section 5A(2) of the Civil Jurisdiction and Judgments Act 1982 - power to prescribe officers who will determine applications in the first instance

Power conferred on:	The Family Procedure Rule Committee (allowed by the Lord Chancellor), under section 75 of the Courts Act 2003

Power exercisable by: 		Rules made by statutory instrument

Parliamentary procedure:	Negative resolution

33.	Section 5 and 5A of the 1982 Act provide that certain applications must be transmitted to “the appropriate court”. These provisions are amended by amendment 102 to provide that where the appropriate court is a magistrates' court in England and Wales, the application is to be transmitted to the family court.

34.	Sections 5(2) and 5A(2) of the 1982 Act provide that applications under sections 5 and 5A respectively are to be determined in the first instance by the “prescribed officer” of the court in question. Section 15(1) of the 1982 Act defines “prescribed” to mean prescribed by rules of court.

35.	As noted, rules of court relating to the 1982 Act will be the Family Procedure Rules. This is by virtue of the fact that section 75 of the Courts Act 2003 as amended by the Bill (see paragraph 77(3) of Schedule 10 to the Bill as introduced) will provide that the Family Procedure Rules apply in respect of proceedings in the family court.

36.	It follows that the Family Procedure Rules will be used to set out who is a “prescribed officer” for the purposes of sections 5 and 5A of the 1982 Act, as amended by amendment 102. 

37.	Given that the rule-making power will extend to making provision about prescribed officers of the family court (which it currently does not extend to), the amendments made to sections 5 and 5A of the 1982 Act by amendment 102 are arguably altering the scope of the rule-making power in section 75 of the Courts Act 2003. The Government is satisfied that the amendments are needed in consequence of the creation of the family court.

38.	Rules made under the power in section 75 of the Courts Act 2003 are subject to the negative resolution procedure (see section 79(6) of that Act). The Government does not consider that this should be amended simply by virtue of the amendments to the 1982 Act.

Amendments 122 and 123: Replacement paragraph 19 of Schedule 12 to the Crime and Courts Bill: new paragraph 11 of Schedule 12 to the Constitutional Reform Act 2005 – power to determine seniority of holders of judicial office for the purposes of determining the vice-chairman of the Judicial Appointments Commission; and revised new paragraph 3C of Schedule 12 to the Constitutional Reform Act 2005 – power to specify functions of the chairman of the Judicial Appointments Commission that may not be exercised by vice-chairman.

      Power conferred on:	Lord Chancellor with the agreement of the Lord Chief Justice.

Power exercisable by:	Regulations made by statutory instrument

      Parliamentary procedure:	Affirmative resolution

39.	Amendment 123 substitutes a narrower regulation-making power in place of paragraph 19 of Schedule 12 to the Bill. Paragraph 19 enables regulations to be made to provide for the appointment of a Commissioner to be vice-chairman of the Commission and to provide for the carrying out by the vice-chairman of functions of the chairman.

40.	The amendment establishes that the Commissioner who is the most senior holder of judicial office shall be vice-chairman of the Judicial Appointments Commission; and that this is set out in paragraph 11 of Schedule 12 to the Constitutional Reform Act 2005 (the 2005 Act). Amendment 122 to paragraph 17 of Schedule 12 to the Bill amends new paragraph 3C of Schedule 12 to the 2005 Act so that the regulation-making power provided for in that paragraph (see paragraph 181 of the Government’s earlier delegated powers memorandum) is extended so that regulations made under that power may also define the term “holder of judicial office” for the purposes of paragraph 11 of Schedule 12 to the 2005 Act as amended.  The Government considers it appropriate to establish on the face of the primary legislation that the vice-chairman of the Judicial Appointments Commission should be a judge in the same way as provision for appointing the chairman of the Commission remains in Schedule 12 to the 2005 Act. The regulation-making power in paragraph 11 of Schedule 12 to the 2005 Act is therefore confined to specifying the functions of the chairman that may not be performed by the vice-chairman. It is considered appropriate to specify this level of detail via regulations. For the reasons set out in paragraph 175 of the earlier delegated powers memorandum, the Government considers that the affirmative procedure should continue to apply to these two modified regulation-making powers. 

Ministry of Justice
20 June 2012