15th Report of Session 2015-16 - Statutory Instruments Joint Committee Contents

Appendix 3

c.  S.I. 2015/1970: memorandum from the Ministry of Justice

Prosecution of Offences Act 1985 (Criminal Courts Charge) (Amendment) Regulations 2015 (S.I. 2015/1970)

1.  The Committee considered this instrument on 13 January 2016 and has asked for a memorandum on the following point.

In the light of the observations of the House of Commons Justice Committee in paragraph 38 of its Second Report for this Session, the words "unless the contrary intention appears" in section 14 of the Interpretation Act 1978 and the mandatory language of sections 21A(1) and 21C(1) of the Prosecution of Offences Act 1985, explain why paragraph 3.2 of the Explanatory Memorandum indicates that the sections in question provide justification for revoking the charge specified in regulation 3 of and the Schedule to the Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015 (as opposed to reducing it).

2.  Section 21A(1) is in mandatory form, directing courts to impose the charge. Section 21C(1) however is not drafted in mandatory form. The Department understands the Committee's question, and notes the stance of the Justice Committee, but considers that 21C(1) is ultimately a power to specify amounts not a duty. While section 21A(1) is in mandatory form, it is explicitly subject to section 21C. This way of drafting the interplay between 21A and 21C, it seems to the Department, gives the vires to act in the way it did. It is also clear to courts that no charge can be imposed where no amounts are set.

3.  In the Department's view, this is not therefore a situation where the contrary intention is shown for the purposes of section 14 of the Interpretation Act.

4.  The Department would accept that a power to act is not necessarily a power to act without limit. The question is whether this was a valid exercise of power. We think it was. In circumstances where the Department planned to review the whole area and in the light of the criticisms from various quarters, including a Parliamentary committee, it was open to the Lord Chancellor to revoke the regulations setting amounts pending the outcome of that review.

5.  As the Committee suggests, one alternative would have been to reduce the amount of charge. That would no doubt be within vires. It would be an odd result if Parliament can be said to have intended that the Lord Chancellor could reduce the charge to £1, but not revoke it altogether.

Ministry of Justice

19 January 2016

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