Prisons and Courts Bill (HC Bill 145)

Prisons and Courts BillPage 50

(b) of obtaining evidence that the witness might have given under
cross-examination in the proceedings.

(3) If the court decides that there is not, the court must—

(a) invite the party to the proceedings to arrange for a qualified
5legal representative to act for the party for the purpose of cross-
examining the witness, and

(b) require the party to the proceedings to notify the court, by the
end of a period specified by the court, of whether a qualified
legal representative is to act for the party for that purpose.

(4) 10Subsection (5) applies if, by the end of the period specified under
subsection (3)(b), either—

(a) the party has notified the court that no qualified legal
representative is to act for the party for the purpose of cross-
examining the witness, or

(b) 15no notification has been received by the court and it appears to
the court that no qualified legal representative is to act for the
party for the purpose of cross-examining the witness.

(5) The court must consider whether it is necessary in the interests of
justice for the witness to be cross-examined by a qualified legal
20representative appointed by the court to represent the interests of the
party.

(6) If the court decides that it is, the court must appoint a qualified legal
representative (chosen by the court) to cross-examine the witness in the
interests of the party.

(7) 25A qualified legal representative appointed by the court under
subsection (6) is not responsible to the party.

(8) For the purposes of this section—

(a) a reference to cross-examination includes (in a case where a
direction is given under section 31T after the party has begun
30cross-examining the witness) a reference to continuing to
conduct cross-examination;

(b) “qualified legal representative” means a person who, for the
purposes of the Legal Services Act 2007, is an authorised person
in relation to an activity which constitutes the exercise of a right
35of audience (within the meaning of that Act) in family
proceedings.

31W Costs of legal representatives appointed under section 31V

(1) The Lord Chancellor may by regulations make provision for the
payment out of central funds of such sums as appear to the court to be
40reasonably necessary to cover—

(a) the proper fee or costs of a qualified legal representative
appointed under section 31V, and

(b) any expenses properly incurred in providing such a person
with evidence or other material in connection with the
45appointment.

(2) The regulations may provide for the amounts paid to be calculated in
accordance with a rate, scale or other provision made by or under the
regulations.

Prisons and Courts BillPage 51

31X Regulations under Part 4B

(1) Any power of the Lord Chancellor to make regulations under this
Part—

(a) is exercisable by statutory instrument,

(b) 5includes power to make different provision for different
purposes, and

(c) includes power to make supplementary, incidental,
consequential, transitional, transitory or saving provision.

(2) A statutory instrument containing regulations under this Part is subject
10to annulment in pursuance of a resolution of either House of
Parliament.”

Tribunal rules

48 Tribunal Procedure Committee: membership

(1) Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 (which, among
15other things, deals with membership of the Tribunals Procedure Committee) is
amended as follows.

(2) Paragraph 21 (Lord Chancellor’s appointees) is amended in accordance with
subsections (3) and (4).

(3) In sub-paragraph (1), at the end of paragraph (a) insert , and

(b) 20one person who has experience of—

(i) practice in employment tribunals and the
Employment Appeal Tribunal, or

(ii) advising persons involved in employment tribunal
proceedings and the Employment Appeal Tribunal.”

(4) 25After sub-paragraph (2) insert—

(3) In sub-paragraph (1)(a)—

  • “tribunals” includes employment tribunals and the
    Employment Appeal Tribunal;

  • “tribunal proceedings” includes employment tribunal
    30proceedings and Employment Appeal Tribunal
    proceedings.”

(5) In paragraph 22(1) (Lord Chief Justice’s appointees)—

(a) omit “and” at the end of paragraph (b);

(b) at the end of paragraph (c) insert , and

(d) 35one person who is a judge, or other member, of the
Employment Appeal Tribunal or a member of a panel
of members of employment tribunals (whether or not
a panel of Employment Judges).”

49 Employment Tribunal Procedure

40Schedule 10

(a) provides for rules of procedure for employment tribunals and the Employment
Appeal Tribunal (“Employment Tribunal Procedure Rules”) to be made by the
Tribunal Procedure Committee;

Prisons and Courts BillPage 52

(b) confers on that Committee powers corresponding to its powers to make rules of
procedure for the First-tier Tribunal and the Upper Tribunal.

Part 3 Organisation and functions of courts and tribunals

5Functions of staff of courts and tribunals

50 Court and tribunal staff: legal advice and judicial functions

Schedule 11 provides for court and tribunal staff—

(a) to provide legal advice to judges of the family court and justices of the peace,
and

(b) 10to exercise the functions of courts, judges and tribunals in cases where
procedure rules so provide.

Abolition of local justice areas

51 Abolition of local justice areas

(1) Local justice areas are abolished.

(2) 15Schedule 12 makes provision for and in connection with their abolition.

Composition of employment tribunals and the Employment Appeal Tribunal

52 Composition of tribunals

(1) The Employment Tribunals Act 1996 is amended as follows.

(2) For section 4 substitute—

4 20Composition of employment tribunals

(1) Where a matter is to be decided by an employment tribunal, the
member or members are to be chosen by the Senior President of
Tribunals, who must act in accordance with any provision made under
the following provisions of this section.

(2) 25The Lord Chancellor must by regulations make provision, in relation to
every matter that may fall to be decided by an employment tribunal, for
determining the number of members who are to decide the matter.

(3) Where regulations under subsection (2) provide for a matter to be
decided by a single member, the regulations must provide for that
30member to be an Employment Judge.

(4) Where regulations under subsection (2) provide for a matter to be
decided by more than one member, the regulations—

(a) must provide for at least one of those members to be an
Employment Judge,

(b) 35must make provision for determining how many (if any) of the
other members are to be Employment Judges and how many (if
any) are to be members who are not Employment Judges, and

Prisons and Courts BillPage 53

(c) if the matter is to be decided by persons who include one or
more members who are not Employment Judges, may make
provision for determining what qualifications (if any) that
member or any of those members must have.

(5) 5A duty under subsection (2) or (4) to provide for the determination of
anything may be discharged by providing for the thing to be
determined by the Senior President of Tribunals, or the President of
Employment Tribunals, in accordance with any provision made under
that subsection.

(6) 10The power under subsection (4)(c) may be exercised by giving, to the
Senior President of Tribunals or the President of Employment
Tribunals, power to determine what qualifications are required in
accordance with any provision made by the regulations.

(7) Where under subsection (2), (4) or (5) a matter is to be decided by more
15than one member, the matter may be decided in the absence of one or
more (but not all) of the members chosen if—

(a) the parties to the case agree, and

(b) at least one of the remaining members is an Employment Judge.

(8) Where the member, or any of the members, of a tribunal chosen to
20decide a matter does not have a qualification required under subsection
(4)(c) (as read with subsection (6)), the matter may still be decided by
the chosen member or members if the parties to the case agree.

(9) Before making regulations under this section, the Lord Chancellor
must consult the Senior President of Tribunals.

(10) 25In this section—

  • “President of Employment Tribunals”—

    (a)

    in relation to employment tribunals in England and
    Wales, means the President of Employment Tribunals
    (England and Wales), or

    (b)

    30in relation to employment tribunals in Scotland, means
    the President of Employment Tribunals (Scotland);

  • “member” means a member of a panel of members of employment
    tribunals (whether or not a panel of Employment Judges);

  • “qualification” includes experience.”

(3) 35For section 28 substitute—

28 Composition of Appeal Tribunal

(1) Where a matter is to be decided by the Appeal Tribunal, the member or
members are to be chosen by the Senior President of Tribunals, who—

(a) must act in accordance with any provision made under the
40following provisions of this section, and

(b) may select himself or herself (if nominated under section 22(1)).

(2) The Lord Chancellor must by regulations make provision, in relation to
every matter that may fall to be decided by the Appeal Tribunal, for
determining the number of members who are to decide the matter.

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(3) Where regulations under subsection (2) provide for a matter to be
decided by a single member, the regulations must provide for that
member to be a judge.

(4) Where regulations under subsection (2) provide for a matter to be
5decided by more than one member, the regulations—

(a) must provide for at least one of those members to be a judge,

(b) must make provision for determining how many (if any) of the
other members are to be judges and how many (if any) are to be
appointed members, and

(c) 10if the matter is to be decided by persons who include one or
more appointed members, may make provision for determining
what qualifications (if any) that appointed member or any of
those appointed members must have.

(5) A duty under subsection (2) or (4) to provide for the determination of
15anything may be discharged by providing for the thing to be
determined by the Senior President of Tribunals, or the President of the
Appeal Tribunal, in accordance with any provision made under that
subsection.

(6) The power under subsection (4)(c) may be exercised by giving, to the
20Senior President of Tribunals or the President of the Appeal Tribunal,
power to determine what qualifications are required in accordance
with any provision made by the regulations.

(7) Where under subsections (2), (4) or (5) a matter is to be decided by more
than one member, the matter may be decided in the absence of one or
25more (but not all) of the members chosen to decide the matter if—

(a) the parties to the case agree, and

(b) at least one of the remaining members is a judge.

(8) Where the member, or any of the members, of the Appeal Tribunal
chosen to decide a matter does not have a qualification required under
30subsection (4)(c) (as read with subsection (6)), the matter may still be
decided by the chosen member or members if the parties to the case
agree.

(9) Before making regulations under this section, the Lord Chancellor
must consult the Senior President of Tribunals.

(10) 35In this section “qualification” includes experience.”

(4) In section 41 (orders, regulations and rules), in subsection (2)—

(a) omit “, 4(4) or (6D)” and “, 28(5);

(b) before “37N” insert “4, 28,”.

Delegation of functions by the Senior President of Tribunals

53 40Senior President of Tribunals: power to delegate

In section 8 of the Tribunals, Courts and Enforcement Act 2007 (Senior
President of Tribunals: power to delegate), in subsection (1), after paragraph
(a) insert—

(aa) to any judge, or other member, of the Employment Appeal
45Tribunal;

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(ab) to any member of a panel of members of employment tribunals
(whether or not a panel of Employment Judges).”

Other changes

54 Traffic and air quality offences: use of statements of truth

5Schedule 13 (traffic and air quality offences: use of statements of truth) has
effect.

55 Extension of power of High Court to make attachment of earnings orders

(1) In section 1 of the Attachment of Earnings Act 1971 (courts with power to
attach earnings), in subsection (1) (power of High Court to make attachment of
10earnings order)—

(a) for “to secure payments” substitute to secure—

(a) payments”;

(b) after “order” insert ; or

(b) the payment of a judgment debt, other than a debt of less
15than £5 or such other sum as may be prescribed by rules
of court”.

(2) The power conferred by that amendment includes a power to make an
attachment of earnings order to secure the discharge of liabilities arising before
the coming into force of subsection (1).

(3) 20Schedule 14 (attachment of earnings orders in the High Court) has effect.

Part 4 The judiciary and the Judicial Appointments Commission

The judiciary

56 Judges with roles in the leadership of the judiciary

25Schedule 15 (judges with leadership roles) has effect.

57 Deployment of judges

(1) In section 94AA of the Constitutional Reform Act 2005 (appointments not
subject to section 85: High Court deputy judge), in subsection (2)(a), after
“Crown Court” insert “or any other court or tribunal to which a deputy judge
30of the High Court may be deployed”.

(2) In section 6 of the Tribunals, Courts and Enforcement Act 2007 (certain judges
who are also judges of the First-tier Tribunal and Upper Tribunal), in
subsection (1), after paragraph (e) insert—

(ea) is a Recorder,”.

(3) 35Accordingly, in section 6A of that Act (certain judges who are also judges of the
First-tier Tribunal), omit paragraph (b).

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(4) In section 93 of the Arbitration Act 1996 (appointment of judges as
arbitrators)—

(a) in subsections (1) and (2), for “A judge of the Commercial Court”
substitute “An eligible High Court judge”;

(b) 5in subsection (4), for “a judge of the Commercial Court” substitute “an
eligible High Court judge”;

(c) after subsection (4) insert—

(4A) The Lord Chief Justice may nominate a senior judge (as defined
in section 109(5) of the Constitutional Reform Act 2005) to
10exercise functions of the Lord Chief Justice under this section.”;

(d) in subsection (5)—

(i) omit “and” at the end of the definition of “arbitration
agreement”;

(ii) after that definition insert—

  • 15““eligible High Court judge” means—

    (a)

    a puisne judge of the High Court, or

    (b)

    a person acting as a judge of the High
    Court under or by virtue of section 9(1) of
    the Senior Courts Act 1981;”.

(5) 20In Schedule 2 to that Act (modifications of Part 1 in relation to judge-
arbitrators), in paragraph 1, for “a judge of the Commercial Court” substitute
“an eligible High Court judge”.

58 President of Employment Tribunals may be appointed to Appeal Tribunal

In section 22(2A) of the Employment Tribunals Act 1996 (membership of
25Employment Appeal Tribunal)—

(a) omit the “or” at the end of paragraph (i);

(b) after paragraph (j) insert—

(k) is the President of the Employment Tribunals (England
and Wales), or

(l) 30is the President of the Employment Tribunals
(Scotland).”

59 Remuneration of members of employment tribunals etc

In the following provisions of the Employment Tribunals Act 1996 for
“Secretary of State”, in each place it occurs, substitute “Lord Chancellor”—

(a) 35section 5(1), (2) and (3) (remuneration of members of employment
tribunals etc);

(b) section 27(1), (2), (3) and (4) (remuneration of members of Employment
Appeal Tribunal etc).

The Judicial Appointments Commission

60 40The Judicial Appointments Commission

(1) The Constitutional Reform Act 2005 is amended as follows.

(2) In section 98 (assistance in connection with other appointments)—

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(a) for subsections (2) and (3) substitute—

(2A) The Lord Chancellor may request the Commission to provide
assistance in the making of—

(a) an appointment, or

(b) 5a recommendation for an appointment.

(2B) The Lord Chancellor may request assistance to be provided
under this section in relation to an appointment, or a
recommendation for appointment, of any nature (including a
non-judicial appointment) that is to be made by any person in
10the United Kingdom (or any part of the United Kingdom) or
elsewhere.

(2C) But, if any of the Commission’s core appointment functions are
exercisable in relation to an appointment or recommendation,
the Lord Chancellor may not request assistance to be provided
15under this section.

(2D) The Lord Chancellor may request assistance to be provided
under this section only if the conditions in subsections (2E) and
(2F) are met.

(2E) The Lord Chancellor must be satisfied that it is appropriate for
20the Commission to provide the assistance because of—

(a) the nature of the appointment concerned, and

(b) the experience which the Commission has acquired in
relation to the making of appointments.

(2F) The Lord Chancellor must be satisfied that the ability of the
25Commission to exercise its core appointment functions will not
be adversely affected by the requirement for the Commission to
provide the assistance.”;

(b) for subsection (6) substitute—

(6) In this section—

  • 30“appointment” includes the conferring of any public
    function;

  • “core appointment functions” means—

    (a)

    the functions of the Commission in relation to an
    appointment under section 26 (judges of the
    35Supreme Court), and

    (b)

    the functions of the Commission under any
    other provisions of this Part.”

(3) In Schedule 12 (the Judicial Appointments Commission), after paragraph 18
insert—

40“Provision of assistance to others

18A (1) The Commission may provide assistance to any other person
(whether in the United Kingdom or elsewhere).

(2) The assistance that may be provided includes—

(a) making any members of the Commission’s staff available to
45the other person;

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(b) making any of the Commission’s property or other resources
available to the other person temporarily or permanently
(including by licensing intellectual property).

Power to charge

18B (1) 5The Commission may charge a person in respect of assistance
provided to the person under paragraph 18A.

(2) The Commission must charge a person in respect of assistance
provided to the person under section 98 if the Lord Chancellor
requires the Commission to make a charge in respect of the provision
10of that assistance.

(3) For the purposes of making a charge under sub-paragraph (2), the
person provided with assistance under section 98 is the person
making the appointment or recommendation concerned.

(4) The Commission must pay the money received in respect of charges
15made under this paragraph to the Lord Chancellor unless the Lord
Chancellor, with the consent of the Treasury, directs otherwise.”

Part 5 Whiplash

Whiplash injuries

61 20“Whiplash injury” etc

(1) In this Part “whiplash injury” means an injury, or set of injuries, of the neck or
the neck and upper torso that is of a description specified in regulations made
by the Lord Chancellor.

(2) Regulations under subsection (1) may in particular—

(a) 25make provision by reference to—

(i) the way in which the injury or set of injuries arises;

(ii) the effects of the injury or set of injuries;

(iii) the parts of the neck or neck and upper torso affected;

(b) exclude cases involving an injury or set of injuries of a description
30specified in the regulations.

(3) For the purposes of this Part a person suffers a whiplash injury because of
driver negligence if—

(a) when the person suffers the injury, the person—

(i) is using a motor vehicle other than a motor cycle on a road or
35other public place in England or Wales, or

(ii) is being carried in or on a motor vehicle other than a motor cycle
while another uses it on a road or other public place in England
or Wales,

(b) the injury is caused by—

(i) 40the negligence of one or more other persons, or

(ii) the negligence of one or more other persons and of the person
who suffers the injury,

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(c) the negligence of the other person or persons consists in an act or acts
done by the person or persons while using a motor vehicle on a road or
other public place in England or Wales,

(d) the negligence of the person who suffers the injury (if any) consists in
5an act or acts done by the person while being carried in or on a motor
vehicle, and

(e) the case is not excluded by subsection (4).

(4) A case is excluded by this subsection if the act or any one or more of the acts
causing the injury also constitutes or together constitute a breach of one or
10more relevant statutory provisions.

(5) The requirement in subsection (3)(b) is to be treated as satisfied in a case where
the act or acts constituting the negligence of the other person or persons is or
are also sufficient to establish another cause of action (subject to subsection
(3)(e)).

(6) 15Regulations under this section are subject to affirmative resolution procedure.

(7) For the purposes of this section references to a person being carried in or on a
vehicle include references to a person entering or getting on to, or alighting
from, the vehicle.

(8) In this section—

  • 20“act” includes omission;

  • “motor cycle” has the meaning given by section 185(1) of the Road Traffic
    Act 1988;

  • “motor vehicle” means a mechanically propelled vehicle intended or
    adapted for use on roads;

  • 25“relevant statutory provisions” has the meaning given by section 53 of the
    Health and Safety at Work etc. Act 1974;

  • “road” means a highway or other road to which the public has access, and
    includes bridges over which a road passes.

Damages

62 30Damages for whiplash injuries

(1) This section applies in relation to the determination by a court of damages for
pain, suffering and loss of amenity in a case where—

(a) a person (“the claimant”) suffers a whiplash injury because of driver
negligence, and

(b) 35the duration of the whiplash injury—

(i) does not exceed, or is not likely to exceed, two years, or

(ii) would have been, or would be likely to be, no more than two
years but for the claimant’s failure to mitigate the whiplash
injury.

(2) 40The amount of damages for pain, suffering and loss of amenity payable in
respect of the whiplash injury is to be an amount specified in regulations made
by the Lord Chancellor.

(3) If the claimant suffers one or more minor psychological injuries on the same
occasion, the amount or the total amount of damages for pain, suffering and