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
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