Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012

Wednesday 18th July 2012 Grand Committee

Considered in Grand Committee

17:23

Moved By

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012.

Relevant documents: 3rd Report from the Secondary Legislation Scrutiny Committee; 3rd Report from the Joint Committee on Statutory Instruments

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: the Crown Court Rule Committee, which I shall hereafter refer to as the CCRC, and the Magistrates’ Courts Rule Committee, which I shall hereafter refer to as the MCRC. This omnibus order provides for the abolition of these bodies, with no transfer of functions in the case of the MCRC, and in the case of the CCRC, with a transfer to the Lord Chief Justice of the function of making rules for the Crown Court.

The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims were to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and its functions to be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case of the two court rule committees, it was considered that their functions needed to be carried out but that they could be effectively carried out by, or in consultation with, other rule committees. The Ministry of Justice felt that retention of the committees was therefore unjustified, and they were included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.

I will give some background on each committee, beginning with the CCRC. The Crown Court Rule Committee was created by the Supreme Court Act 1981 to examine any proposed amendments to Crown Court rules and, together with the Lord Chancellor, to make the necessary rules for the court. However, the committee’s role in making criminal rules has been superseded since that time by the creation of the Criminal Procedure Rule Committee in 2003, leaving it with a role in relation to only a few civil rules. Due to this reduced role, the committee is now rarely used and the Ministry of Justice therefore proposes that it be discontinued.

The Government recognise that the committee’s limited residual functions, though few, should still be carried out and require both technical expertise and impartiality. This order therefore transfers these functions to the Lord Chief Justice, who will be free to consult the other court rule-making committees, and any other person or body as he sees fit, before making rules in relation to the Crown Court. This transfer of function removes the need to maintain a separate committee for such a small workload, which reflects the wider aims of the Public Bodies Act to cut out unnecessary bureaucracy. It also means that a greater range of expertise will be available to the Lord Chief Justice, which is a more effective way to make court rules. This approach has been agreed in principle by the Lord Chief Justice.

The abolition of the CCRC and the transfer of its remaining functions to the Lord Chief Justice formed part of a Ministry of Justice consultation that took place between July and October 2011. Nine responses were received regarding the proposal, of which only a few opposed abolition, with the chief concern being that abolition would lead to a loss of people with appropriate expertise whom the Lord Chief Justice could consult before making rules.

However, as I have spelled out, the order will allow the Lord Chief Justice, after abolition, to consult any rule committee and any other person or body as he sees fit when making rules. As these committees have considerable rule-making experience, I am satisfied that there will be more than ample expertise on which the Lord Chief Justice will be able to call—indeed, there will be a wider range than is currently the case. For this reason, the Government see no reason to alter their proposal to abolish this committee.

The Magistrates’ Court Rule Committee is the second body addressed within this omnibus order. The MCRC was established under the Magistrates’ Courts Act 1980 as a body to be consulted by the Lord Chief Justice before he makes rules in relation to these courts. The MCRC is also consulted, along with other rule committees, before certain rules are made under the Courts Act 2003 relating to justices of the peace and justices’ clerks. The committee does not itself make rules but exists as a consultative body alone.

However, since the MCRC was established, the creation of the Criminal Procedure Rule Committee and the Family Procedure Rule Committee has greatly reduced its remit. The only remaining function of the committee is to be consulted on rules relating to civil non-family proceedings in the magistrates’ courts. There are relatively few such proceedings, and the need for amendments to the rules is very infrequent. The committee was called upon twice in 2009, not at all in 2010 and twice in 2011. This does not justify the retention of a dedicated committee.

17:30

The Government recognise that the committee’s remaining consultative functions, though narrow, are both necessary and technical, and require impartiality to be carried out. However, they do not need to be performed by this committee specifically but may be performed by any person or body with the right technical expertise and impartiality. Due to the narrow scope of the committee’s remaining functions, this order makes no provision for the transfer of the MCRC’s functions to other rules committees. However, after abolition, the Lord Chief Justice will continue to make the rules upon which the MCRC is presently consulted, as he does now; before making these rules, he will still be able to consult any of the other rules committees as he sees fit. He has agreed in principle to this approach.

As with the CCRC, the abolition of the MCRC was included in a full public consultation published by the Ministry of Justice in 2011. Ten responses were received regarding the proposal; of those, five supported and two opposed abolition. Among opponents of the proposal, the main concern expressed was that, after abolition, there would be a lack of expertise available to the Lord Chief Justice when making rules. However, this was balanced by the response of the Magistrates’ Association, which said that the other rules committees were well placed to advise the Lord Chief Justice, as well as that of the Law Society, which equally had no objection to abolition. As with the CCRC, the Lord Chief Justice will be able to consult any rules committee when making rules on which the MCRC is currently consulted. We are therefore satisfied that there will no loss of expertise resulting from abolition, and see no reason to retain the committee.

I will now turn to the scrutiny given to this order, which was laid before Parliament on 17 May. Orders under the Public Bodies Act 2011 have a minimum 40-day scrutiny period, with a committee of either House able to extend this to 60 days by resolution if it feels it necessary. This order has been scrutinised by several Select Committees: in this House, by the Secondary Legislation Scrutiny Committee; in the other place, by the Justice Select Committee; and, collectively, by the Joint Committee on Statutory Instruments. None of these triggered the optional 60-day extended scrutiny period.

The Secondary Legislation Scrutiny Committee reported on this order on 31 May, and requested a few points of clarification from officials. The report stated that the committee was satisfied that the order met the tests set out in the Public Bodies Act 2011, and did not ask for any points to be addressed by me in this debate. I will therefore take this opportunity simply to thank the committee for its thorough report.

These two committees were created to make rules in relation to various parts of the courts system. However, since their creation, their functions have been largely overtaken by other rule-making committees. In the case of the CCRC, we have taken the opportunity in this order to transfer the remaining functions of the committee to the Lord Chief Justice, which will allow him to consult any rule-making committee or person that he sees fit when making rules. In the case of the MCRC, the Lord Chief Justice may already consult any such body or person in relation to the committee’s narrow residual scope as necessary, and no formal transfer is necessary.

I am therefore satisfied that, for both committees, the necessary remaining functions will continue to be carried out after abolition, with no loss of expertise in the making of court rules. Closing these two committees is consistent with cutting out unnecessary bureaucracy and making the carrying out of public functions simpler and more efficient. I therefore commend the order to your Lordships and beg to move.

[Lord Beecham]

My Lords, I have no problem with the substance of this order. However, the Secondary Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:

“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.

The committee made much the same point in relation to this order, saying:

“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.

Of course, I am being repetitive at the moment but that is because it is necessary to be so.

The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.

[Lord McNally]

I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.

Motion agreed.