Fifth Standing Committee on Delegated Legislation
Thursday 1 July 2004
[Mr. Alan Hurst in the Chair]
Draft Courts Act 2003 (Consequential Amendments) Order 2004
9.55 am
The Parliamentary Under-Secretary of State for Constitutional Affairs (Mr. Christopher Leslie): I beg to move,
That the Committee has considered the draft Courts Act 2003 (Consequential Amendments) Order 2004.
The order will complete the necessary amendments to, and repeals of, primary legislation which are consequential on the establishment of the new criminal procedure rule committee and family procedure rule committee. The order is accordingly consequential on a policy laid before, and agreed by, Parliament during the passage of the Courts Act last year.
We are now ready to establish the criminal procedure rule committee and are in the process of recruiting the members of the family procedure rule committee. When fully functioning, the criminal procedure rule committee will provide a single forum in England and Wales for the development of rules determining the practice and procedures to be used in all criminal courts. Similarly, the family procedure rule committee will make rules applying to all family proceedings in England and Wales. Until now, the criminal rule arrangements have been dealt with by the Crown court rule committee and the Lord Chancellor, working with the magistrates court rule committee. The family side was dealt with by the family proceedings committee, the Lord Chancellor and the magistrates court rule committee. The arrangements are being simplified and streamlined, as was debated and agreed in the context of the Courts Act.
The order will be made under the general power in section 109 of the Act, which allows the Lord Chancellor to make
''any supplementary, incidental or consequential provision''
for the purposes of giving full effect to any provision in the Act. It includes powers to amend or revoke any primary legislation passed before, or during the same Session as, the Courts Act. Section 109 is the type of provision that is typically debated during the Committee stage of most Bills, so it is quite common. Such provisions are found in virtually every statute and allow the Government to make any necessary tidying provisions by affirmative order, which allows for parliamentary scrutiny.
The legislative changes in the order do not take forward any new policy, nor will they effect a change in policy. The purpose of the exercise is simply to align existing legislation with the provisions in the Courts Act which relate to the criminal and family procedure
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rule committees. The combined effect of the legislative changes in the Act and the order will enable criminal procedure rules to be developed with a more strategic purpose, thus streamlining and modernising the criminal trial process. The changes will also enable procedural reform to be carried out effectively within the family jurisdiction.
Mr. Graham Allen (Nottingham, North) (Lab): Many Members on both sides of the House have been taking great care over the question of antisocial behaviour orders. They are civil orders, but when they are breached a criminal level of proof is required. Would Members who want a more reasonable, lower level of proof raise such questions with the new body, or would we carry on in the same way as before? Does the change make any practical difference to the way in which Members can make representations on clarifying the interpretation of existing law? I appreciate that I have dropped that question on the Minister. If it is more convenient for him to write to me, I would be happy to accept a letter.
Mr. Leslie: No, my hon. Friend makes a perfectly reasonable point and asks a fair question. My understanding is that the procedural rules committees simply relate to the standing orders dealing with how a court sits and how its operations work. In the same way as ''Erskine May'' helps to guide House procedures, so there are procedural rules that guide what happens in the family and criminal courts.
I know that my hon. Friend has been active in asking questions about how we can improve the antisocial behaviour order process and make it easier for the balance to be shifted so that those engaging in antisocial behaviour can be apprehended, charged, sentenced and convicted as swiftly as possible. Of course, the procedural rules could help with the swiftness of arrangements in court, but the question whether the burden of proof is civil or criminal is a matter of public policy, which would be more appropriately discussed in a legislative context in Parliament. That would be a better vehicle for the development of policy.
Mr. Allen: Perhaps a better example would be the question of the admission of hearsay evidence in antisocial behaviour cases. That is definitely a question of interpretation, guidelines and the actions of the courts. Different magistrates courts' clerks consider the matter in different ways.
The Chairman: Order. I think that we know how enthusiastic the hon. Gentleman is about promoting antisocial behaviour legislation. Nevertheless, as the Minister obviously divined, this may not be the best opportunity to pursue the matter in depth.
Mr. Leslie: Indeed, Mr. Hurst, but it is reasonable for my hon. Friend to inquire about such matters and I am sure that we shall continue our conversation about them elsewhere.
Ministers can ask rules committees to consider criminal justice issues involving court procedure, but they would need to be enabled by primary
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legislation—in a policy sense—to follow through with any enabling power they had in a procedural context. In short, policy tends to be dealt with by Parliament through legislation, and, if necessary, consequential changes are made to the rules governing the day-to-day operation of the courts.
Mr. Geoffrey Clifton-Brown (Cotswold) (Con): I have a suspicious mind. Sections 73 and 80 of the Courts Act are sunset provisions; in other words, they were deliberately inserted to ensure that subsequent procedural changes could be made only during this Session of Parliament. The Minister is taking powers under section 109, which is not a sunset provision, but a more general one. Will he explain why? Is it so that he can use that general provision in the future, after this Session, thus obviating the sunset provisions in sections 73 and 80?
Mr. Leslie: That issue has been raised already. We have thought about the different provisions under which we could make consequential changes, and we felt that it was best to use section 109 powers because they were a broader, simpler vehicle, allowing us to put the order in as simple a form as possible—I accept that it is complex and detailed. Those powers give us the scope to cover the parts of the legislative field that are dispersed between the different branches of the current procedure rule committees. As I said, three or four different committees consider rules at present, and we need a wide scope to make changes to existing Acts.
Section 109 allows an order to amend legislation made before or during the same Session in which the Court Act was passed, as the hon. Gentleman said. It is important that we are able to reach back into legislation and ensure consistency and sense. There should be a good flow to legislation, and we should not leave various lacunae and loopholes in old Acts, unchecked and unamended; we should bring them into line with the policy governing the establishment of the simpler rules committee arrangements.
The criminal procedure rule committee will have overarching responsibility for rules governing the practice and procedure of the criminal courts. That will allow the magistrates courts, the Crown court and the criminal division of the Court of Appeal to be embraced as one whole. The Lord Chancellor and the Secretary of State have approved the appointment of members to the committee, and it will take up the baton from the advance working group, which was established to ease the path for the full committee.
Mr. Clifton-Brown: On a point of order, Mr. Hurst. I was not entirely happy with the Minister's reply to my question about sections 73 and 80. It seems to me that the Government may be going outside what Parliament has decided in those sections, which are sunset provisions. Will you confirm whether the matter was considered by the Joint Committee on Statutory Instruments, and if so, whether the Committee commented on it? If the matter was not considered, can we seek an adjournment of this Committee to obtain the Joint Committee's opinion on it?
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The Chairman: I am told that the Joint Committee had no comment to make, so the matter proceeds in order thus far.
Mr. Leslie: That, too, was my understanding. That is why we have the Joint Committee: to wash through some of these issues in advance of our consideration.
The arrangements for the family procedure rule committee are similar to those for the criminal procedure rule committee, and it is intended to have overarching responsibility for the rules governing family proceedings. The arrangements for the recruitment of that committee are under way, and it will promote the modernisation and harmonisation of family procedure rules and, thus, the more effective handling of cases by the courts and practitioners.
It is proposed that the order comes into force on 1 September. It will not affect the general operation of the enactments amended, first, where they relate to criminal procedure rules, until the new rules come into force, and, secondly, where they relate to family procedure rules, until the arrangements under the new family procedure rule committee come into force. The existing rule-making bodies will continue to have the power to make rules affecting criminal and family business until the new rules are laid before Parliament.
Mr. Jonathan Djanogly (Huntingdon) (Con): Considering the delays involved, will the Minister give us some idea of when those rules are likely to come into play?
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