Clause 31 creates a power for the Lord Chancellor to make regulations to enable or facilitate the making of preliminary and enforcement decisions in criminal proceedings by a court on the papers—that is, without a hearing. Regulations may only be made under that power with the agreement of the Lord Chief Justice and will not be able to remove from the court the option of holding a hearing. The regulations may be used to amend primary or secondary legislation.
Courts already have an inherent power to determine matters on the papers in some circumstances, but existing provisions preclude that in certain cases. In order to give the court greater flexibility to manage criminal proceedings, it may be appropriate to remove those barriers, so that the court can decide whether a hearing is required. I should emphasise that any regulations made under this power will be subject to affirmative resolution. Both Houses of Parliament will therefore have the opportunity to scrutinise any proposed change and will be invited to approve it.
Given the wider court reform proposed in the Bill, we believe that the merits of removing legislative requirements for a hearing will be best assessed once the reforms have come into force and have bedded in. It is therefore not possible to say exactly which matters we would like to enable the courts to deal with on the papers, but Members can be assured that the necessary safeguards are in place to ensure that this power will only be exercised where it is appropriate to do so.
It is not my intention to oppose the clause, but perhaps the Minister could comment on one or two concerns. It is doubtful whether this provision would save time overall in highly complex cases, but I can see the case for it in numerous other eventualities. We should always remember that case management decisions are judicial, not administrative, decisions. What flows from that is that we have to ensure that the relevant information is available to the judiciary in deciding that, and that interested parties always have the opportunity to contribute, should they wish. Of course, in this, as in other situations, the court has to be able to respond to the individual circumstances of a particular case.
I agree that these are judicial decisions, but I believe there is a case for flexibility. Where appropriate, any legislation that requires that a pre-trial or enforcement matter be determined at a hearing, if that is to be removed, the courts can still on a case-by-case basis decide whether a hearing is required. That, of course, is a provision that requires the support not just of the Lord Chancellor but of the Lord Chief Justice. I certainly take the hon. Gentleman’s point but still commend the clause to the Committee.