Crime and Courts Bill [HL]

Session 2012 - 13
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Crime and Courts Bill [HL]

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
247

insert “unconditionally or subject only to matters such as the selected
person’s willingness and availability”.
      (6)
In subsection (4) (request may not be withdrawn on ground of
unsatisfactory process after exercise of power to accept, reject or require
reconsideration of selection) for the words after “if” substitute “a selection
5
made pursuant to the request—
(a)
has been accepted unconditionally or subject only to matters
such as the selected person’s willingness and availability, or
(a)
in exercise of power conferred by regulations under section
94C, has been rejected or required to be reconsidered.”
10
69    (1)
Section 97 (consultation under certain provisions to be with head of the
judiciary in Scotland or Northern Ireland instead of with Lord Chief Justice
of England and Wales) is amended as follows.
      (2)
In subsection (1) (list of provisions requiring consultation)—
(a)
omit paragraphs (b), (c) and (e), and
15
(b)
in paragraph (d) for “95(2)(a), (b)” substitute “95(2)(b)”.
      (3)
In subsection (4) (modification where requirement is to obtain concurrence
rather than to consult) after “section 94A(1)” insert “or 95(2)(a)”.
70    (1)
In section 99 (judicial appointments: complaints) after subsection (3) insert—
“(3A)
An LCJ complaint is a complaint by a qualifying complainant of
20
maladministration by the Lord Chief Justice or the Lord Chief
Justice’s nominee, or anyone acting on behalf of either of them, in
connection with—
(a)
selection under this Part for an office listed in Table 2 of Part
1 or 2 of Schedule 14,
25
(b)
appointment to an office listed in Table 2 of Part 2 of that
Schedule, or
(c)
selection under this Part for membership of a pool for
requests under section 9(1) of the Senior Courts Act 1981,

or of maladministration by the Lord Chief Justice or the Master of the
30
Rolls or the Lord Chief Justice’s nominee, or anyone acting on behalf
of any of them, in connection with the making of requests under
section 9(1) of that Act.
(3B)
An SPT complaint is a complaint by a qualifying complainant of
maladministration by the Senior President of Tribunals or a person
35
to whom the Senior President has delegated functions, or anyone
acting on behalf of either of them, in connection with—
(a)
selection under this Part for an office listed in Table 3 of Part
1 of Schedule 14 or in Table 2 of Part 3 of that Schedule, or
(b)
appointment to an office listed in Table 2 of Part 3 of that
40
Schedule.”
71
In section 100 (duty to make arrangements to investigate complaints) after
subsection (2) insert—
“(2A)
The Lord Chief Justice must make arrangements for investigating
any LCJ complaint made to the Lord Chief Justice.
45

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 4 — Judicial appointments: selection, and transfer of powers of Lord Chancellor
248

(2B)
The Senior President of Tribunals must make arrangements for
investigating any SPT complaint made to the Senior President of
Tribunals.”
72    (1)
Section 101 (complaints to the Judicial Conduct and Appointments
Ombudsman) is amended as follows.
5
      (2)
In subsections (1)(a) and (4)(a) (investigation of complaints previously made
to Judicial Appointments Commission or Lord Chancellor) for “or the Lord
Chancellor” substitute “, the Lord Chancellor, the Lord Chief Justice or the
Senior President of Tribunals”.
      (3)
In subsection (1)(b) for “Commission’s or Lord Chancellor’s decision”
10
substitute “decision of the Commission, the Lord Chancellor, the Lord Chief
Justice or the Senior President of Tribunals”.
73
In section 102 (Ombudsman’s reports and recommendations)—
(a)
in subsection (2)(c) (recommended action) for “or the Lord
Chancellor” substitute “, the Lord Chancellor, the Lord Chief Justice
15
or the Senior President of Tribunals”, and
(b)
in subsection (4) (compensation not to be recommended for failure to
be appointed to an office) after “office” insert “, or selected for
membership of a pool,”.
74    (1)
Section 103 (Ombudsman’s reports) is amended as follows.
20
      (2)
For subsection (2) (drafts of reports) substitute—
“(2)
The Ombudsman must submit a draft of the report to the Lord
Chancellor and to—
(a)
the Commission if the complaint was a Commission
complaint;
25
(b)
the Lord Chief Justice if the complaint was an LCJ complaint;
(c)
the Senior President of Tribunals if the complaint was an SPT
complaint.”
      (3)
In subsection (3) (duty to have regard to comments on draft) for “or the
Commission” substitute “the Commission, the Lord Chief Justice or the
30
Senior President of Tribunals”.
      (4)
After subsection (5) insert—
“(5A)
If the complaint was an LCJ complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Lord Chief
Justice.
35
(5B)
If the complaint was an SPT complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Senior
President of Tribunals.”
75    (1)
Section 104 (referrals to Judicial Conduct and Appointments Ombudsman of
matters relating to Judicial Appointments Commission) is amended as
40
follows.
      (2)
In subsection (1) (duty to investigate matter referred by Lord Chancellor)
after “Lord Chancellor” insert “, the Lord Chief Justice or the Senior
President of Tribunals”.

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 5 — Appointment of judge to exercise functions of a head of division in case of incapacity or a vacancy etc
249

      (3)
In subsection (3) (report on referred matter) after “Lord Chancellor” insert
“, the Lord Chief Justice and the Senior President of Tribunals”.
76
In section 105 (provision of information to Ombudsman) after “The
Commission” insert “, the Lord Chief Justice, the Senior President of
Tribunals”.
5
77
In section 144(5) (orders and regulations subject to affirmative procedure)
after paragraph (a) insert—
“(aa)
an order under section 85(5);
(ab)
regulations under section 94 or 94C;”.
78
In paragraph 2 of Schedule 7 (functions of Lord Chancellor under the Act are
10
protected from transfer to other Ministers etc) after “under this Act” insert
“, including any function under provision inserted into this Act by—
(a)
the Crime and Courts Act 2013, or
(b)
any earlier or later enactment”.
79
In Schedule 12 (the Judicial Appointments Commission) in paragraphs 20(6)
15
and 27(3) (selection panels under section 70 or 79) after “70” insert “, 75B”.
Part 5
Appointment of judge to exercise functions of a head of division in case of
incapacity or a vacancy etc
80
Where a Head of Division is incapable of exercising relevant functions, or
20
the office of a Head of Division is vacant, the Lord Chief Justice may, with
the concurrence of the Lord Chancellor, appoint a judge of the Senior Courts
to exercise relevant functions of the Head of Division.
81
An appointment under paragraph 80—
(a)
must be in writing,
25
(b)
must specify the functions that may be exercised by the appointed
judge, and
(c)
must set out the duration of the appointment.
82
In paragraph 80—
“Head of Division” means—
30
(a)
the Master of the Rolls,
(b)
the President of the Queen’s Bench Division,
(c)
the President of the Family Division, or
(d)
the Chancellor of the High Court;
“the Lord Chief Justice” means the Lord Chief Justice of England and
35
Wales;
“the Senior Courts” means the Senior Courts of England and Wales.
83
In this Part of this Schedule “relevant functions” means functions under any
of the following—
section 5 of the Public Notaries Act 1843 (functions of Chancellor of the
40
High Court in relation to refusal of master of the faculties to grant a
faculty to practise as a public notary);
section 8(5) of the Public Records Act 1958 (President of the Family
Division to be consulted in relation to transfer of certain records);

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 5 — Appointment of judge to exercise functions of a head of division in case of incapacity or a vacancy etc
250

section 5(2) or (3) of the Senior Courts Act 1981 (concurrence of Heads
of Division with transfer of judges between Divisions of High Court
etc);
section 7(1) of the Senior Courts Act 1981 (power of Lord Chancellor,
Lord Chief Justice and Heads of Division, acting collectively, to
5
recommend alteration of Divisions of High Court etc);
section 11(9) of the Senior Courts Act 1981 (concurrence of particular
Heads of Division etc with Lord Chancellor’s declaration of a
vacancy in the office of a judge of the Senior Courts who is
permanently incapacitated and unable to resign);
10
section 54 of the Senior Courts Act 1981 (functions of Master of the Rolls
in relation to composition of courts of civil division of Court of
Appeal);
section 57 of the Senior Courts Act 1981 (determination by Master of the
Rolls with concurrence of Lord Chancellor of sittings of civil division
15
of Court of Appeal during vacation);
section 61(5) of the Senior Courts Act 1981 (concurrence of Heads of
Division concerned with assignment of business of one Division of
High Court to another Division of High Court);
section 63(3) of the Senior Courts Act 1981 (concurrence of Head of
20
Division concerned with direction that business is to cease to be
assigned to specially nominated judge of High Court);
section 71(4)(a) of the Senior Courts Act 1981 (determination by Heads
of Division with concurrence of Lord Chancellor of sittings of
Divisions of High Court during vacation);
25
section 109(2) or 110 of the Senior Courts Act 1981 (President of the
Family Division may make certain arrangements in relation to
documents relating to probate etc);
section 111 of the Senior Courts Act 1981 (President of the Family
Division may give directions as to form and content of records of
30
grants made in the Principal Registry or a district probate registry);
section 126 of the Senior Courts Act 1981 (President of the Family
Division may, with concurrence of Lord Chancellor, make
regulations imposing conditions on deposit of wills);
section 133 of the Senior Courts Act 1981 (functions of Master of the
35
Rolls in relation to enrolment and engrossment of instruments);
section 25(3)(a) of the Administration of Justice Act 1982 (President of
the Family Division may, with concurrence of Lord Chancellor,
make regulations as to deposit and registration of wills);
section 257(3) of the Inheritance Tax Act 1984 (President of the Family
40
Division may make certain arrangements in relation to delivery of
accounts for the purposes of that Act);
section 37 of the Matrimonial and Family Proceedings Act 1984
(President of the Family Division may, with concurrence of Lord
Chancellor, give directions with respect to distribution and transfer
45
between High Court and family court of family business and family
proceedings);
section 1(9) of the Courts and Legal Services Act 1990 (Heads of
Division etc to be consulted in relation to changes to allocation of
business of High Court and county court);
50

Crime and Courts Bill [HL]
Schedule 13 — Judicial appointments
Part 5 — Appointment of judge to exercise functions of a head of division in case of incapacity or a vacancy etc
251

section 58A(5)(a), 58AA(6)(a) or 58B(7)(a) of the Courts and Legal
Services Act 1990 (Heads of Division etc to be consulted in relation to
certain matters relating to agreements for funding of legal services);
section 56(4) of the Access to Justice Act 1999 (Heads of Division etc to
be consulted in relation to changes to destination of appeals);
5
section 57 of the Access to Justice Act 1999 (Master of the Rolls or
President of the Family Division etc may assign appeals to the Court
of Appeal);
section 2(7) of the Courts Act 2003 (Heads of Division etc to be
consulted in relation to authorisation of contracting-out of
10
administrative work of courts);
section 64(4) of the Courts Act 2003 (Heads of Division to be consulted
in relation to change of judicial title);
section 66(4)(b) of the Courts Act 2003 (President of the Family Division
may nominate Circuit judges etc to sit as members of family
15
proceedings courts);
section 77(3) of the Courts Act 2003 (President of the Family Division
etc to be consulted in relation to certain appointments to Family
Procedure Rule Committee);
section 78(2) of the Courts Act 2003 (President of the Family Division to
20
be consulted in relation to certain changes to Family Procedure Rule
Committee);
section 92(5) of the Courts Act 2003 (Heads of Division etc to be
consulted in relation to fees of Senior Courts, family court, county
court and magistrates’ courts);
25
paragraph 12(4) of Schedule 7 to the Courts Act 2003 (Heads of Division
etc to be consulted in relation to regulations about enforcement
officers);
section 52(4) of the Constitutional Reform Act 2005 (Heads of Division
etc to be consulted in relation to Supreme Court fees);
30
section 183(7)(b) of the Legal Services Act 2007 (consent of Master of the
Rolls etc in relation to fees for administration of an oath or taking of
an affidavit);
paragraph 1(10) of Schedule 3 to the Legal Services Act 2007
(concurrence of President of the Family Division etc with meaning of
35
“reserved family proceedings” prescribed for the purposes of that
paragraph).
84
The Lord Chancellor may by order amend the list in paragraph 83 so as to—
(a)
add an entry,
(b)
remove an entry, or
40
(c)
vary an entry.
85
After section 10(6) of the Senior Courts Act 1981 (where there is a vacancy in
one or more of the offices of the Heads of Division, a newly-appointed Lord
Chief Justice is to take the required oaths in the presence of the holders of
such of the offices as are not vacant) insert—
45
“(6A)
Where the holder of an office mentioned in subsection (5) is
incapable of exercising the functions of the office, the office is to be
treated as vacant for the purposes of subsection (6).”

Crime and Courts Bill [HL]
Schedule 14 — Deployment of the judiciary
Part 1 — Deployment under section 9 of the Senior Courts Act 1981
252

Part 6
Abolition of office of assistant Recorder
86    (1)
In section 24 of the Courts Act 1971 (deputy Circuit judges and assistant
Recorders) in subsection (1) omit paragraph (b) (power to appoint assistant
Recorders).
5
      (2)
In consequence of that repeal—
(a)
in subsection (1A) of that section (duration of appointments)—
(i)
omit “in the case of appointment as a deputy Circuit judge,”,
and
(ii)
omit the words after “seventy-five”,
10
(b)
in subsection (2) of that section—
(i)
omit “or assistant Recorder”, and
(ii)
omit “or a Recorder, as the case may be”,
(c)
in subsection (3) of that section omit the words after “pensions of
such judges”,
15
(d)
in subsection (5) of that section omit “and assistant Recorders”,
(e)
in the title of that section omit “and assistant Recorders”,
(f)
in Schedule 5 to the Judicial Pensions and Retirement Act 1993 omit
the entry for Assistant Recorder,
(g)
in Schedule 7 to the Judicial Pensions and Retirement Act 1993 omit
20
paragraph 5(5)(ii),
(h)
in section 9(4) of the Senior Courts Act 1981 omit “and assistant
Recorders”,
(i)
in section 64(2) of the Courts Act 2003 omit the entry for Assistant
Recorder,
25
(j)
in Schedule 4 to the Constitutional Reform Act 2005 omit paragraph
71(2)(d),
(k)
in Part 2 of Schedule 14 to that Act omit the entry for Assistant
Recorder, and
(l)
in Schedule 10 to the Tribunals, Courts and Enforcement Act 2007
30
omit paragraph 9(4).
Schedule 14
Section 19

Deployment of the judiciary
Part 1
Deployment under section 9 of the Senior Courts Act 1981
35
Requests for assistance under section 9(1) of the Senior Courts Act 1981
1     (1)
Section 9 of the Senior Courts Act 1981 (which includes provision for certain
judges to act as judges of other courts) is amended as follows.
      (2)
In the table in subsection (1) (judges deployable to certain courts) in column
2 of each of entries 2 and 4 (person who has been a judge of the Court of
40
Appeal, or has been a puisne judge of the High Court, may be asked to act

Crime and Courts Bill [HL]
Schedule 14 — Deployment of the judiciary
Part 1 — Deployment under section 9 of the Senior Courts Act 1981
253

as a judge of the Court of Appeal, High Court or Crown Court) before “and
the Crown Court” insert “, the family court, the county court”.
      (3)
In that table after entry 4 insert—

“4A. The Senior President of
The Court of Appeal and the

Tribunals.
High Court.”

5
      (4)
In that table, in column 1 of entry 6 (Recorders) after “Recorder” insert “or a
person within subsection (1ZB)”.
      (5)
After subsection (1) insert—
“(1ZA)
The Senior President of Tribunals is to be treated as not being within
any entry in column 1 of the Table other than entry 4A.
10
(1ZB)
A person is within this subsection if the person—
(a)
is a Chamber President, or a Deputy Chamber President, of a
chamber of the Upper Tribunal or of a chamber of the First-
tier Tribunal,
(b)
is a judge of the Upper Tribunal by virtue of appointment
15
under paragraph 1(1) of Schedule 3 to the Tribunals, Courts
and Enforcement Act 2007,
(c)
is a transferred-in judge of the Upper Tribunal (see section
31(2) of that Act),
(d)
is a deputy judge of the Upper Tribunal (whether under
20
paragraph 7 of Schedule 3 to, or section 31(2) of, that Act), or
(e)
is the President of Employment Tribunals (England and
Wales) or the President of Employment Tribunals
(Scotland).”
      (6)
In subsection (2B) (requests under certain entries in table in subsection (1) to
25
be made only after consulting Lord Chancellor) after “3,” insert “4A,”.
      (7)
In subsection (2D) (requests to Circuit judge or Recorder to act in High Court
require concurrence of Judicial Appointments Commission)—
(a)
omit “or Recorder”, and
(b)
for “High Court” substitute “Court of Appeal”.
30
      (8)
For subsection (3) (certain requests under subsection (1) must be complied
with) substitute—
“(3)
The person to whom a request is made under subsection (1) must
comply with the request, but this does not apply to—
(a)
a request made to a person who has been a judge of the Court
35
of Appeal,
(b)
a request made to a person who has been a puisne judge of
the High Court and is not a judge of the Court of Appeal, or
(c)
a request made to the Senior President of Tribunals if the
holder of that office is a judge of the Court of Session or of the
40
High Court, or Court of Appeal, in Northern Ireland.”
      (9)
In subsection (6A) (Circuit judge or Recorder not to act by virtue of
subsection (5) as single judge in Court of Appeal for certain purposes) for “or
Recorder” substitute “, Recorder or person within subsection (1ZB)”.