PRISONS AND COURTS BILL EXPLANATORY NOTES What these notes do These Explanatory Notes relate to the Prisons and Courts Bill as introduced in the House of Commons on 23 February 2017 (Bill 145). • These Explanatory Notes have been prepared by the Ministry of Justice in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. • These Explanatory Notes explain what each part of the Bill will mean in practice; provide background information on the development of policy; and provide additional information on how the Bill will affect existing legislation in this area. • These Explanatory Notes might best be read alongside the Bill. They are not, and are not intended to be, a comprehensive description of the Bill. Bill 145–EN 56/2 Table of Contents Subject Page of these Notes Overview of the Bill 6 Policy background 7 Prisons 8 The statutory purpose of prisons and role of the Secretary of State 9 Inspectorate and Prisons and Probation Ombudsman 10 Prison security: mobile phones and drug testing 10 Courts and tribunals 11 Criminal courts: case allocation and online indication of plea 12 Live‐links, virtual hearings and the conduct of certain proceeding ‘on the papers’ 12 Public participation in court and tribunals proceedings 13 Automatic online conviction and standard statutory penalty 13 Online procedure and online procedure rules 14 Vulnerable witnesses in family cases 14 Employment Tribunal rules and procedure 15 Court and tribunal staff: legal advice and judicial functions 15 Local justice areas 16 Employment tribunals: panel composition and delegation 16 Traffic enforcement: witness statements 17 Attachment of Earnings Orders 17 The judiciary and the Judicial Appointments Commission 17 Judicial appointments and deployment 18 Appointments to the Employment Appeals Tribunal and remuneration of employment tribunal members 19 Judicial Appointments Commission 19 Whiplash 19 Legal background 20 Prisons 20 The statutory purpose of prisons and role of the Secretary of State 20 Inspectorate and Prisons and Probation Ombudsman 20 Prison security: mobile phones and drug testing 20 Mobile Phones 21 Psychoactive Substances 21 Courts and tribunals 21 Criminal courts: case allocation and online indication of plea 21 Live‐links and virtual hearings 22 Public participation in court and tribunal proceedings 22 Automatic online conviction and standard statutory penalty 22 These Explanatory Notes relate to the Prisons and Courts Bill as introduced in the House of Commons on 23 February 2017 (Bill 145) 1 Online procedure and online procedure rules 22 Panel Composition 23 Vulnerable witnesses in family cases 24 Court and tribunal staff: legal advice and judicial functions 24 Tribunal Procedure 24 Tribunal Procedure Committee Membership 25 Local justice areas 25 Traffic enforcement: witness statements 26 Attachment of Earnings Orders 26 Remuneration for Employment Tribunal Members 26 The judiciary and the Judicial Appointments Commission 27 Judicial appointments and deployment 27 Membership of the Employment Appeal Tribunal 27 Judicial Appointments Commission 27 Whiplash 27 Territorial extent and application 28 Commentary on provisions of Bill 31 Part 1: Prisons 31 Chapter 1: Purpose of prisons and Her Majesty’s Chief Inspector and Inspectorate of Prisons 31 Clause 1: Prisons: purpose, and role of the Secretary of State 31 Clause 2: Her Majesty’s Chief Inspector and Inspectorate of Prisons 32 Clause 3: Minor and consequential amendments 33 Territorial extent and application 34 Chapter 2: The Prisons and Probation Ombudsman 34 Clause 4: The Prisons and Probation Ombudsman 34 Clause 5: Investigations of deaths within the Ombudsman’s remit 34 Clause 6: Investigation of deaths following release etc. 35 Clause 7: Deaths occurring in Scotland: role of the Lord Advocate 35 Clause 8: Reports on deaths investigated by the Ombudsman 35 Clause 9: Investigations of complaints by the Ombudsman 35 Clause 10: Reports on complaints investigated by the Ombudsman 35 Clause 11: Other investigations and reports 36 Clause 12: Power to enter premises 36 Clause 13: Powers to require information 36 Clause 14: Obstruction 36 Clause 15: Relationship with criminal investigations and disciplinary proceedings 36 Clause 16: Information sharing 36 Clause 17: Restrictions on disclosure of information 36 Clause 18: Annual report 37 Clause 19: Secure children’s homes in Wales 37 Clause 20: Sections 4 to 19: interpretation 37 Territorial extent and application 37 Chapter 3: Prison security 37 Clause 21: Interference with wireless telegraphy in prisons etc. 37 Clause 22: Testing prisoners for psychoactive substances 38 Part 2: Procedures in criminal, civil and family matters 38 Chapter 1: Conducting preliminary proceedings in writing: criminal courts 38 These Explanatory Notes relate to the Prisons and Courts Bill as introduced in the House of Commons on 23 February 2017 (Bill 145) 2 Clause 23: The written information procedure 38 Clause 24: Charge by police or prosecutor: non‐appearance in court after guilty plea 39 Clause 25: Either way offence: choice of written procedure for plea before venue 40 Clause 26: Either way offence: choice of written procedure for mode of trial 41 Clause 27: Power to proceed if accused absent from allocation proceedings 42 Clause 28: Low value shoplifting: choice of written election for Crown Court trial 43 Clause 29: Sending cases to the Crown Court: adults 43 Clause 30: Children and young people 44 Chapter 2: Conduct of certain criminal proceedings on the papers 44 Clause 31: Conduct of criminal proceedings on the papers 44 Chapter 3: Audio and video technology: criminal courts 44 Clause 32: Expansion of the availability of live links in criminal proceedings 44 Clause 33: Expansion of availability of live links in other criminal hearings 44 Chapter 4: Public participation: court and tribunal proceedings conducted by video or audio 44 Clause 34: Public participation in court and tribunal proceedings conducted by video or audio 44 Chapter 5: Automatic online conviction and standard statutory penalty 45 Clause 35: Changes to institution of proceedings by written charge 45 Clause 36: Automatic online conviction and standard statutory penalty 46 Chapter 6: The online procedure: the civil and family courts and the tribunals 49 Clause 37: Rules for an online procedure in courts and tribunals 49 Clause 38: Regulations for the purposes of clause 37 49 Clause 39: The Online Procedure Rule Committee and its powers 50 Clause 40: Power to change certain requirements relating to the Committee 50 Clause 41: Making online procedure rules 50 Clause 42: Power of the Lord Chancellor to require rules to be made 50 Clause 43: Power to make consequential amendments 50 Clause 44: Amendments to other legislation 50 Clause 45: Interpretation 50 Territorial extent and application 50 Chapter 7: Powers to remit proceedings to another court 51 Clause 46: Powers to remit proceedings to another court 51 Territorial extent and application 52 Chapter 8: Prohibition of cross‐examination in family proceedings 52 Clause 47: Prohibition of cross‐examination in person in family proceedings 52 Chapter 9: Tribunal rules 54 Clause 48: Tribunal Procedure Committee membership 54 Clause 49: Employment Tribunal Procedure 54 Part 3: Organisation and functions of courts and tribunals 55 Chapter 1: Functions of staff of courts and tribunals 55 Clause 50: Court and tribunal staff: provision of legal advice and judicial functions 55 Chapter 2: Abolition of local justice areas 55 Clause 51: Abolition of local justice areas 55 Chapter 3: Composition of employment tribunals and the Employment Appeal Tribunal 56 Clause 52: Composition of tribunals 56 Chapter 4: Delegation of functions by the Senior President of Tribunals 56 Clause 53: Senior President of The Tribunals: power to delegate 56 Chapter 5: Other changes 56 Clause 54: Traffic and air quality offences: use of statements of truth 56 Clause 55: Extension of High Court powers to make attachment of earnings orders 56 Part 4: The judiciary and the Judicial Appointment Commissions 57 Chapter 1: Judicial appointments in deployment 57 These Explanatory Notes relate to the Prisons and Courts Bill as introduced in the House of Commons on 23 February 2017 (Bill 145) 3 Clause 56: Judges with roles in the leadership of the judiciary 57 Clause 57: Deployment of judges 57 Clause 58: President of Employment Tribunals may be appointed to Appeal Tribunal 57 Clause 59: Remuneration of members of employment tribunals etc. 57 Territorial extent and application 57 Chapter 2: The Judicial Appointments Commission 58 Clause 60: The Judicial Appointments Commission 58 Part 5: Whiplash 58 Chapter 1: Whiplash cases 58 Clause 61: “Whiplash injury” etc. 58 Chapter 2: Damages for whiplash 59 Clause 62: Damages for whiplash injuries 59 Clause 63: Uplift in exceptional circumstances 59 Chapter 3: Settlement of whiplash claims 59 Clause 64: Rules against the settlement of claims before medical report 59 Clause 65: Effect of rules against settlement before medical report 59 Clause 66: Regulation by the Financial Conduct Authority 59 Clause 67: Interpretation 59 Part 6: Final provisions 60 Clause 68: Consequential and transitional provisions etc. 60 Clause 69: Regulations 60 Clause 70: Extent 60 Clause 71: Commencement 60 Clause 72: Short title 60 Schedules 60 Schedule 1: The Prisons and Probation Ombudsman 60 Schedule 2: Interference with wireless telegraphy in prisons 61 Schedule 3: