Criminal Procedure (Amendment No. 2) Rules 2007 (S.I. 2007/2317)

6.1 The Committee draws the special attention of the House to these Rules on the ground that there appears to be a doubt as to whether they are intra vires.

6.2 The Rules were made under section 69 of the Courts Act 2003 by the Criminal Procedure Rule Committee. The procedure for making them is set out in section 72 in that Act. As an essential part of the procedure before 22 August 2007 they had to be allowed by the Lord Chancellor 'with the concurrence of the Secretary of State' - see section 72(3). By virtue of Schedule 1 to the Interpretation Act 1978 a function vested in 'the Secretary of State' can be exercised by any Secretary of State.

6.3 Two features thus distinguish functions vested in 'the Secretary of State' from those vested in specific Secretaries of State or other named Ministers of the Crown. Both features are largely convenient to a government in enabling it to avoid the Parliamentary scrutiny that legislation involves. The first is that, as a matter of routine machinery, responsibility for the functions can be entrusted to any Secretary of State by administrative means. The second is that the entrusting is, as a matter of law, not exclusive; the fact that in practice no other Secretary of State generally exercises them is a matter of internal government arrangement rather than law, and it remains legally possible for any other Secretary of State to exercise them, thus providing additional flexibility (e.g. in the case of absence or incapacity of the Secretary of State routinely entrusted with the function).

6.4 The Rules were allowed on 26 July 2007 by Jack Straw MP signing them as Lord Chancellor and Secretary of State for Justice. Reasons for that approach were set out in the Ministry of Justice's original (voluntary) memorandum at Appendix 6. The 2003 need for concurrence rested in the separation of responsibility for policy on criminal law, then entrusted to the Home Office, from that on court administration, then entrusted to the Lord Chancellor's Department. Responsibility for policy on criminal law was, before these Rules were allowed, removed from the Home Office and entrusted to the Ministry of Justice, and an announcement in Parliament to that effect was made by the Prime Minister on 29 March 2007. Accordingly, before allowing the Rules, Jack Straw MP considered the matter as required by both his separate offices.

6.5 In routine machinery of government terms that was wholly understandable. However it was, in literal terms, incompatible with a provision that required 'concurrence', which, according to the most applicable dictionary definition ('agreement, assent'), calls for separate persons rather than a single person acting in more than one capacity. If each separate office that person held had been a 'corporation sole' (i.e. recognised in law as a separate legal entity), legal separation would have been achieved; but that process had not been completed at the time the Rules were allowed. The Committee accordingly asked the Ministry how formal compliance, which in the Committee's view could have been achieved by the concurrence of a separate Secretary of State, had been achieved in this case.

6.6 In anticipation of, and response to, the Committee's question, the Ministry, in both in its original and its second memorandum (also at Appendix 6), argues for a purposive rather than literal interpretation of section 72(3), on the following basis. The underlying purpose of that provision (demonstrated in the Explanatory Notes to the Courts Act 2003) was recognition of the separation of policy responsibilities at the time; it follows that, once those responsibilities become vested in one person holding two offices, the underlying purpose had to be met by that single person acting in pursuance of both areas of policy responsibility. On that basis it would be 'inappropriate' to ask any other office holder to carry out the function of concurring. Accordingly it is wrong to conclude that concurrence of any other Secretary of State would have secured compliance with section 72(3).

6.7 That last point, in the Committee's view, cannot be upheld. The Ministry's second memorandum itself recognises absence (by reason of ill-health or otherwise) as providing scope for the concurrence of a separate Secretary of State. It follows that its concept of what is appropriate cannot be legally based. So far as constitutional propriety is concerned, the Ministry's argument appears in the Committee's view to rest on the large assumption that convenience to government is a constitutional principle. An alternative argument is that a government, with the benefit of the flexibility involved in powers being vested in 'the Secretary of State', is subject to the occasional burden carried by the same flexibility - in this case the slight inconvenience that involvement of a different Secretary of State is apt not only where the routinely entrusted Secretary of State is absent but also where the routinely entrusted Secretary of State does not (yet) have the legal capacity to carry out the function in question. As from 22 August 2007, the requirement of concurrence was abolished by the Secretary of State for Justice Order 2007 (SI 2007/2128).

6.8 It follows, in the Committee's view, that while the Department's argument for a purposive approach is respectably tenable, it is insecure; in contrast involvement of another Secretary of State as the concurring Minister would have been legally secure. Accordingly the Committee reports these Rules on the ground that there appears to be a doubt as to whether they are intra vires.