Crime and Courts Bill (HC Bill 137)

(a) the provisions governing appointment to the office provide
that a person is eligible for appointment only where the
person satisfies one or some other particular number or all, or
at least one or at least some other particular number, of
5several conditions specified in the provisions, and

(b) at least one of the conditions specified in the provisions is
listed in subsection (8).

(8) The conditions are—

(a) that the person satisfies the judicial-appointment eligibility
10condition on an N-year basis (where N is a particular
number);

(b) that the person is a solicitor in Scotland of at least a particular
number of years’ standing;

(c) that the person is an advocate in Scotland of at least a
15particular number of years’ standing;

(d) that the person is a solicitor in Northern Ireland of at least a
particular number of years’ standing;

(e) that the person is a barrister in Northern Ireland of at least a
particular number of years’ standing.

(9) 20Before making an order under subsection (5) the Lord Chancellor
must consult the Lord Chief Justice, the Lord President of the Court
of Session and the Lord Chief Justice of Northern Ireland.

(10) An order under subsection (5)—

(a) may make different provision for different purposes;

(b) 25may make consequential, transitory, transitional or saving
provision.”

65 (1) Section 86 (duty to fill vacancies) is amended as follows.

(2) After subsection (1) (duty to make a recommendation to fill vacancy for a
puisne judge of the High Court or in an office listed in Part 1 of Schedule 14)
30insert—

“(1A) The Lord Chancellor must, as soon as is reasonably practicable after
being informed by the Lord Chief Justice that a selection under this
Chapter for a recommendation for an appointment to an office listed
in Table 2 of Part 1 of that Schedule has been accepted
35unconditionally or subject to conditions that have since been met,
make a recommendation of the selected person for an appointment
to that office.

(1B) The Lord Chancellor must, as soon as is reasonably practicable after
being informed by the Senior President of Tribunals that a selection
40under this Chapter for a recommendation for an appointment to an
office listed in Table 3 of Part 1 of that Schedule has been accepted
unconditionally or subject to conditions that have since been met,
make a recommendation of the selected person for an appointment
to that office.”

(3) 45In subsection (2) (Lord Chancellor must fill vacancy in office listed in Part 2
or 3 of Schedule 14) after “listed in” insert “Table 1 of”.

(4) After that subsection insert—

“(2A) The Lord Chief Justice must make an appointment to fill any vacancy
in an office listed in Table 2 of Part 2 of that Schedule.

(2B) The Senior President of Tribunals must make an appointment to fill
5any vacancy in an office listed in Table 2 of Part 3 of that Schedule.”

(5) After subsection (3) insert—

“(4) Subsections (2A) and (2B) do not apply to a vacancy while the Lord
Chancellor agrees that it may remain unfilled.”

66 (1) Section 87 (request for selection of person to fill vacancy for High Court
10judge or in an office listed in Schedule 14) is amended as follows.

(2) After subsection (1) insert—

“(1A) The Lord Chancellor may request the Commission to select a person
for membership of a pool for requests under section 9(1) of the Senior
Courts Act 1981, and a person may become a member of such a pool
15only by selection on a request under this subsection.”

(3) In subsection (4) (sections 88 to 93 apply where request made under section
87) for “Sections 88 to 93 apply” substitute “Section 88 applies”.

(4) In subsection (5) for “Those sections are” substitute “That section is”.

67 In section 88 (selection process: puisne judges of High Court and other office
20holders)—

(a) omit subsection (2) (insufficient candidates of merit),

(b) omit subsection (3) (required elements of selection process),

(c) in subsection (4) (duty to arrange selection of one person for each
recommendation or appointment to which a request relates) for “or
25appointment” substitute “, appointment or pool membership”, and

(d) in subsection (5) (subsection (4) applies to selection under section 88,
92 or 93) for “section 92 or 93” substitute “regulations under section
94C”.

68 For section 94 (Commission’s duty to identify persons suitable for selection
30on a future request) substitute—

“94 Power to require persons to be identified for future requests

(1) If the Lord Chancellor gives the Commission notice of a request
which the Lord Chancellor expects to make under section 87, the
Commission must seek to identify persons it considers would be
35suitable for selection on the request.

(2) The Lord Chancellor may, by regulations made with the agreement
of the Lord Chief Justice, make provision about how the Commission
is to comply with a duty imposed on it by subsection (1).

(3) The regulations may in particular—

(a) 40make provision as to things that are, or as to things that are
not, to be done—

(i) in complying with such a duty, or

(ii) in determining how to comply with such a duty;

(b) provide for the making of reports.

(4) Regulations under this section—

(a) may make different provision for different purposes;

(b) may make consequential, supplementary, transitory,
transitional or saving provision.”

69 (1) 5Section 95 (Lord Chancellor’s power to withdraw or modify a request) is
amended as follows.

(2) In subsection (2) before paragraph (a) insert—

“(za) the Lord Chancellor may withdraw or modify a request in
consequence of a vacancy, or perceived need for an
10additional office-holder, having been filled or partly filled by
change in the amount of time required to be devoted to the
duties of office by an existing holder of the office concerned;”.

(3) In that subsection after paragraph (b) insert—

“(ba) so far as a request relates to any pool membership, the Lord
15Chancellor may withdraw or modify it after consulting the
Lord Chief Justice;”.

(4) In subsection (2)(c) (withdrawal of request where selection process
unsatisfactory)—

(a) for “he”, in both places, substitute “the Lord Chancellor”, and

(b) 20for “or appointments” substitute “, appointments or pool
memberships”.

(5) In subsection (3) (selection already accepted may not be changed in
consequence of modification or part-withdrawal of request) after “accepted”
insert “unconditionally or subject only to matters such as the selected
25person’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
made pursuant to the request—

“(a) 30has 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.”

70 (1) Section 97 (consultation under certain provisions to be with head of the
35judiciary 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

(b) in paragraph (d) for “95(2)(a), (b)” substitute “95(2)(b)”.

(3) 40In subsection (4) (modification where requirement is to obtain concurrence
rather than to consult) after “section 94A(1)” insert “or 95(2)(a)”.

71 (1) In section 99 (judicial appointments: complaints) after subsection (3) insert—

“(3A) An LCJ complaint is a complaint by a qualifying complainant of
maladministration by the Lord Chief Justice or the Lord Chief
45Justice’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,

(b) appointment to an office listed in Table 2 of Part 2 of that
Schedule, or

(c) 5selection 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
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
10section 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
to whom the Senior President has delegated functions, or anyone
acting on behalf of either of them, in connection with—

(a) 15selection 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
Schedule.”

72 In section 100 (duty to make arrangements to investigate complaints) after
20subsection (2) insert—

“(2A) The Lord Chief Justice must make arrangements for investigating
any LCJ complaint made to the Lord Chief Justice.

(2B) The Senior President of Tribunals must make arrangements for
investigating any SPT complaint made to the Senior President of
25Tribunals.”

73 (1) Section 101 (complaints to the Judicial Conduct and Appointments
Ombudsman) is amended as follows.

(2) In subsections (1)(a) and (4)(a) (investigation of complaints previously made
to Judicial Appointments Commission or Lord Chancellor) for “or the Lord
30Chancellor” 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”
substitute “decision of the Commission, the Lord Chancellor, the Lord Chief
Justice or the Senior President of Tribunals”.

74 35In 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
or the Senior President of Tribunals”, and

(b) in subsection (4) (compensation not to be recommended for failure to
40be appointed to an office) after “office” insert “, or selected for
membership of a pool,”.

75 (1) Section 103 (Ombudsman’s reports) is amended as follows.

(2) For subsection (2) (drafts of reports) substitute—

“(2) The Ombudsman must submit a draft of the report to the Lord
45Chancellor and to—

(a) the Commission if the complaint was a Commission
complaint;

(b) the Lord Chief Justice if the complaint was an LCJ complaint;

(c) the Senior President of Tribunals if the complaint was an SPT
5complaint.”

(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
Senior President of Tribunals”.

(4) After subsection (5) insert—

“(5A) 10If the complaint was an LCJ complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Lord Chief
Justice.

(5B) If the complaint was an SPT complaint the Ombudsman must send
the report in duplicate to the Lord Chancellor and the Senior
15President of Tribunals.”

76 (1) Section 104 (referrals to Judicial Conduct and Appointments Ombudsman of
matters relating to Judicial Appointments Commission) is amended as
follows.

(2) In subsection (1) (duty to investigate matter referred by Lord Chancellor)
20after “Lord Chancellor” insert “, the Lord Chief Justice or the Senior
President of Tribunals”.

(3) In subsection (3) (report on referred matter) after “Lord Chancellor” insert
“, the Lord Chief Justice and the Senior President of Tribunals”.

77 In section 105 (provision of information to Ombudsman) after “The
25Commission” insert “, the Lord Chief Justice, the Senior President of
Tribunals”.

78 In section 144(5) (orders and regulations subject to affirmative procedure)
after paragraph (a) insert—

“(aa) an order under section 85(5);

(ab) 30regulations under section 94 or 94C;”.

79 In paragraph 2 of Schedule 7 (functions of Lord Chancellor under the Act are
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) 35any earlier or later enactment”.

80 In Schedule 12 (the Judicial Appointments Commission) in paragraphs 20(6)
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
40incapacity or a vacancy etc

81 Where a Head of Division is incapable of exercising relevant functions, or
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.

82 An appointment under paragraph 81—

(a) must be in writing,

(b) must specify the functions that may be exercised by the appointed
judge, and

(c) 5must set out the duration of the appointment.

83 In paragraph 81—

• “Head of Division” means—

  (a)

  the Master of the Rolls,

  (b)

  the President of the Queen’s Bench Division,

  (c)

  10the 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
  Wales;

• “the Senior Courts” means the Senior Courts of England and Wales.

84 15In 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
  High Court in relation to refusal of master of the faculties to grant a
  faculty to practise as a public notary);

• 20section 8(5) of the Public Records Act 1958 (President of the Family
  Division to be consulted in relation to transfer of certain records);

• 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);

• 25section 7(1) of the Senior Courts Act 1981 (power of Lord Chancellor,
  Lord Chief Justice and Heads of Division, acting collectively, to
  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
  30vacancy in the office of a judge of the Senior Courts who is
  permanently incapacitated and unable to resign);

• 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);

• 35section 57 of the Senior Courts Act 1981 (determination by Master of the
  Rolls with concurrence of Lord Chancellor of sittings of civil division
  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
  40High Court to another Division of High Court);

• section 63(3) of the Senior Courts Act 1981 (concurrence of Head of
  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
  45of Division with concurrence of Lord Chancellor of sittings of
  Divisions of High Court during vacation);

• 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);

Crime and Courts BillPage 256

• section 111 of the Senior Courts Act 1981 (President of the Family
  Division may give directions as to form and content of records of
  grants made in the Principal Registry or a district probate registry);

• section 126 of the Senior Courts Act 1981 (President of the Family
  5Division 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
  Rolls in relation to enrolment and engrossment of instruments);

• section 25(3)(a) of the Administration of Justice Act 1982 (President of
  10the 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
  Division may make certain arrangements in relation to delivery of
  accounts for the purposes of that Act);

• 15section 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
  between High Court and family court of family business and family
  proceedings);

• 20section 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);

• 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
  25certain 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);

• 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
  30of Appeal);

• section 2(7) of the Courts Act 2003 (Heads of Division etc to be
  consulted in relation to authorisation of contracting-out of
  administrative work of courts);

• section 64(4) of the Courts Act 2003 (Heads of Division to be consulted
  35in 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
  proceedings courts);

• section 77(3) of the Courts Act 2003 (President of the Family Division
  40etc 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
  be consulted in relation to certain changes to Family Procedure Rule
  Committee);

• 45section 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);

• paragraph 12(4) of Schedule 7 to the Courts Act 2003 (Heads of Division
  etc to be consulted in relation to regulations about enforcement
  50officers);

• section 52(4) of the Constitutional Reform Act 2005 (Heads of Division
  etc to be consulted in relation to Supreme Court fees);

Crime and Courts BillPage 257

• 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
  5(concurrence of President of the Family Division etc with meaning of
  “reserved family proceedings” prescribed for the purposes of that
  paragraph).

85 The Lord Chancellor may by order amend the list in paragraph 84 so as to—

(a) add an entry,

(b) 10remove an entry, or

(c) vary an entry.

86 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
15such of the offices as are not vacant) insert—

“(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).”

Part 6 20Abolition of office of assistant Recorder

87 (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).

(2) In consequence of that repeal—

(a) 25in 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”,

(b) in subsection (2) of that section—

(i) 30omit “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”,

(d) in subsection (5) of that section omit “and assistant Recorders”,

(e) 35in 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
paragraph 5(5)(ii),

(h) 40in 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,

(j) in Schedule 4 to the Constitutional Reform Act 2005 omit paragraph
4571(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
omit paragraph 9(4).

Section 19

5SCHEDULE 14 Deployment of the judiciary

Part 1 Deployment under section 9 of the Senior Courts Act 1981

Requests for assistance under section 9(1) of the Senior Courts Act 1981

1 (1) 10Section 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
Appeal, or has been a puisne judge of the High Court, may be asked to act
15as 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—

(4) 20In 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.

(1ZB) 25A 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
30under 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
35paragraph 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
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) 5omit “or Recorder”, and

(b) for “High Court” substitute “Court of Appeal”.

(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
10comply with the request, but this does not apply to—

(a) a request made to a person who has been a judge of the Court
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) 15a 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
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
20Recorder” substitute “, Recorder or person within subsection (1ZB)”.

Deputy judges of the High Court

2 (1) Section 9 of the Senior Courts Act 1981 (which includes provision about the
appointment of deputy judges of the High Court) is amended as follows.

(2) In subsection (4) (power of Lord Chief Justice to appoint deputy judges to
25facilitate disposal of business in the High Court or Crown Court) after
“Crown Court” insert “or any other court or tribunal to which persons
appointed under this subsection may be deployed”.

(3) After subsection (8) (remuneration) insert—

“(8A) A person may be removed from office as a deputy judge of the High
30Court—

(a) only by the Lord Chancellor with the agreement of the Lord
Chief Justice, and

(b) only on—

(i) the ground of inability or misbehaviour, or

(ii) 35a ground specified in the person’s terms of
appointment.

(8B) Subject to the preceding provisions of this section, a person
appointed under subsection (4) is to hold and vacate office as a
deputy judge of the High Court in accordance with the terms of the
40person’s appointment, which are to be such as the Lord Chancellor
may determine.”

(4) In subsection (9) (Lord Chief Justice’s power to delegate functions under
subsection (4))—

(a) for “judicial office holder (as defined in section 109(4)” substitute
45“senior judge (as defined in section 109(5)”, and