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In subsection (4) (request may not be withdrawn on ground of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

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(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

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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,

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(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

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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;

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(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.

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(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);

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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

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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)”.

 
 

 
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Revised 20 December 2012