Prisons and Courts Bill

Explanatory Notes

Policy background

10. In November 2016, the Government published plans for reforms to the prison system, including measures in this Bill 1 . After the announcement of these reforms in the Queen’s Speech in May 2016 2 , the Justice Select Committee issued an initial call for evidence, followed by an inquiry into prison reform, which has taken evidence from witnesses and the Government. 3

11. The joint statement issued in September 2016 by the Lord Chancellor, Lord Chief Justice of England and Wales, and Senior President of Tribunals outlined the context of reforms to courts and tribunals within which the Bill addresses specific measures that require legislation. 4

12. The Bill contains measures that give effect to policies outlined in Government consultations 5 regarding courts and tribunals reform, judicial policy and compensation for whiplash injuries arising out of road traffic accidents.


13. The Prison Safety and Reform White Paper outlined the Government’s plans for reforms, to be delivered through a mix of operational changes in prisons underpinned by legislative changes where required. In that publication, the Secretary of State outlined the "current challenge" facing the prison system and policy rationale for reform. Currently, almost half of all prisoners are reconvicted within a year of release. The cost of reoffending by former prisoners is estimated to be up to £15 billion a year.6

14. Evidence shows that the prison system is currently under sustained and serious pressure from security threats and rising levels of violence.

15. The environment in prisons has grown increasingly violent in recent years: rates of violence and self-harm have increased significantly, due in part to the recent increase of dangerous psycho-active drugs in prisons. Assaults on prison staff increased by 40% in the 12 months to September 2016, while self-harm increased by around a quarter. The number of self-inflicted deaths increased by 32% in the 12 months to December 2016. 7

16. Prisons are facing new security challenges. In 2015 nearly 17,000 mobile phones and SIM cards were found in prisons – an increase from around 7,000 in 2013. There has also been a rise in the number of drones used to fly and drop contraband over prison walls.

17. To address these matters, the Government proposes a programme of reforms to prisons, underpinned by the legislative changes through the Bill. That programme was described in the White Paper as comprising:

· Getting "the right framework for improvement" by setting out the role of the Secretary of State and accountability arrangements for those managing prisons;

· "Raising standards" by establishing an overarching purpose for prisons and changes to the performance framework and reporting systems for all prisons;

· Giving governors more autonomy and accountability that will include greater control over services provided in their prisons, workforce planning based on their local needs, how to spend budgets and decision-making on operational policies, such as releasing prisoners on temporary licence to pursue purposeful activities in work or education;

· Improving safety and security in prisons by increasing staffing and the availability of one-to-one support for prisoners, complemented by new measures to address drugs, drones and mobile phones in prisons as well as crimes committed in prisons;

· Developing leadership and capability through training and investment in prison staff; and

· Building ‘"the right estate for reform" that is less crowded, better organised, more effective with modern, fit-for-purpose accommodation.

18. The reforms will be mostly delivered through non-legislative changes to the way prisons are run or through changes to secondary legislation in the form of the Prison Rules.  For example, in response to the Acheson Review8, the Government will create separate units for the small subset of the most high-risk extremists; changes will be made to the prison drug testing regime to enable drug testing on entry to and exit from prison, as part of a more extensive testing programme; and a Government manifesto commitment will be met to "close old, inefficient prisons, building larger, modern and fit-for-purpose ones" as outlined in the White Paper. The Bill contains measures in the areas that do require primary legislation. These measures will change the framework of the prison system to provide for greater authority for the frontline, and new accountability and transparency mechanisms.

19. Part 1 creates a statutory purpose of prisons and updates the existing duties of the Secretary of State in relation to prisons (amending those created in the Prison Act 1952 ("the 1952 Act" )). It creates Her Majesty’s Inspectorate of Prisons, comprising Her Majesty’s Chief Inspector of Prisons (an existing statutory office) and staff who carry out functions on the Chief Inspector’s behalf, places additional reporting requirements on the Chief Inspector in relation to prisons, and provides powers of entry and access to information to facilitate the exercise of the Chief Inspector’s statutory inspection functions in relation to prisons. Part 1 establishes the Prisons and Probation Ombudsman ("PPO") as a statutory office, and provides the Secretary of State with the powers to add its remit.

20. Part 1 also concerns two aspects of prison security: it enables a public communication providers ("PCPs") – for example, mobile phone network operators - to be authorised to interfere with wireless telegraphy to disrupt the use of unlawful mobile phones in custody, and makes provision for the testing of prisoners for psychoactive substances (as defined in the Psychoactive Substances Act 2016) within prisons.

The statutory purpose of prisons and role of the Secretary of State

21. The creation of a new statutory purpose for prisons is similar to examples in other legislation: for instance, the probation purposes and aims in the Offender Management Act 2007 and the purpose of the youth justice system in the Crime and Disorder Act 1998. In amending the 1952 Act, the Bill reforms the existing duty of the Secretary of State to provide prisons and maintain prisoners and delivers the policy aim outlined in the White Paper (p. 13, chapter 2) that there should be "a statutory purpose for the prison system around which everyone working in it can unite", and "the role of the Secretary of State for Justice is clear, including how she will account to Parliament for her performance".

Inspectorate and Prisons and Probation Ombudsman

22. Her Majesty’s Chief Inspector of Prisons is a Crown appointment established in the 1952 Act. The Chief Inspector reports on the conditions in and treatment of those in prison, young offender institutions, secure training centres, immigration detention facilities, police and court custody suites, customs custody facilities and military detention and escort vehicles. The Chief Inspector’s work contributes to the United Kingdom’s obligations under the Optional Protocol to the United Nations Convention against Torture ("OPCAT") and other Cruel, Inhuman or Degrading Treatment or Punishment. This Protocol requires signatory states to have in place regular independent inspection of places of detention. Part 1 delivers the policy aims in the White Paper (p18, Ch2) to strengthen the ability of the Chief Inspector to provide robust and independent scrutiny of prisons. It makes provision for a statutory Inspectorate and provides the Chief Inspector and Inspectorate staff with new powers to enter places of detention and access information when conducing inspections. The provisions require the Secretary of State to respond to inspection reports in a set timescale and for the Chief Inspector to trigger an urgent response from the Secretary of State where an inspection has raised significant concerns.

23. The PPO is a non-statutory office that carries out independent investigations into deaths in custody and complaints by those in custody. The Bill puts the PPO onto a statutory footing. This delivers the policy aim in the White Paper (p.19 Ch. 2) that a statutory basis will ‘bolster the status’ of the role. The PPO is not currently a statutory office and there have been public statements from the Ombudsman arguing for the office to be placed on a statutory footing – including in his 2015-16 Annual Report. In 2003, the Home Office issued a public consultation on creating a statutory office of the PPO with responsibility for investigating complaints and deaths in custody.

Prison security: mobile phones and drug testing

24. The power of the Secretary of State to authorise governors to interfere with wireless telegraphy to disrupt unlawful mobile phone use in prisons is established in the Prisons (Interference with Wireless Telegraphy) Act 2012 ("PIWTA 2012"). Part 1 amends this provision to create a new power for the Secretary of State to authorise PCPs to effect this interference in an independent capacity. The Wireless Telegraphy Act 2006 makes it a criminal offence to install or use wireless telegraphy apparatus without a licence (section 8) or to use apparatus to deliberately interfere with wireless telegraphy (section 68), but such interference is lawful for the purpose of detecting or preventing the use of illegal mobile phones in prisons when it is carried out by someone authorised under the PIWTA 2012. Ofcom regulates this activity in the UK under powers set out in the Communications Act 2003 and Part 1 uses a definition of a PCP based on section 151 of that Act.

25. The 1952 Act provides prison officers with the power to test prisoners for all drugs that are controlled drugs for the purposes of the Misuse of Drugs Act 1971. In cases where new illegal substances are identified, in order to test prisoners, secondary legislation is required in each case to specify the substance to be authorised for testing.

26. The recent increase in use of psychoactive substances in custody is well-evidenced. There were 851 recorded seizures of psychoactive substances in prison during October and November 2015 9 . The PPO found that in 39 deaths in prison between June 2013 and June 2015, the prisoner was known, or strongly suspected, to have been using psychoactive substances before their deaths 10 . In July 2016, HM Chief Inspector of Prisons described the ‘unpredictable and extreme… dramatic and destabilising’ effects of psychoactive substances, which in his view contributed in ‘large part’ to the violence in prisons 11 .

Courts and tribunals

27. The joint statement issued by the Lord Chancellor, Lord Chief Justice, and Senior President of Tribunals described plans for a modern court system, shared by the Government and senior judiciary, stating: "the vision is to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime 12 ."

28. The statement identified a number of "real challenges" that remain in the justice system through inefficient and outdated processes. The Bill concerns the criminal, civil and family jurisdictions and tribunals. It makes provisions to address the matters identified in the joint statement, as well as some of those described in previous reviews of the justice system, particularly relating to the criminal courts. In 1999, Lord Justice Auld was commissioned by the then Government to conduct a review of the criminal courts in England and Wales, which reported in 2001 13 ; a subsequent independent review by Lord Justice Leveson was published in January 2015 14 . Their findings focused on the processes, structures and inefficiencies in the criminal justice system. The National Audit Office published a report in 2016 on efficiency in the criminal justice system, which identified geographical variations in performance and the presence of misaligned incentives in the system 15 . Lord Justice Briggs recently conducted a review into civil courts 16 . His final report made several recommendations that relate to policies in the Bill, including the ‘online court’ and civil enforcement.

Criminal courts: case allocation and online indication of plea

29. Part 2 makes provision for new procedures in civil and criminal jurisdictions. It makes changes to the way in which cases can be allocated between magistrates’ courts and the Crown Court. Offences can be categorised in three ways: summary-only (heard in magistrates’ courts), triable either-way (depending on complexity and severity may be heard in either magistrates’ courts or the Crown Court), and indictable-only (must be heard in the Crown Court). ‘Allocation’ is the process by which either-way cases are assigned to a magistrates’ court or the Crown Court. ‘Sending’ refers to the process by which an indictable case (both indictable-only and either-way) is sent from a magistrates’ court to the Crown Court. The Magistrates’ Courts Act 1980, as amended, sets the framework for how either way offences are allocated. Generally, the practice and procedure which must be followed in relation to all offences is set out in Criminal Procedure Rules made by the Criminal Procedure Rule Committee 17 . This body of legislation and rules determines the circumstances in which a hearing must occur as part of a case’s progression, when and how to indicate and enter a plea, and how cases can be moved between the magistrates’ courts and the Crown Court.

30. Part 2 makes changes to this framework to increase flexibility for how defendants interact with the system and removes unnecessary hearings. In order to improve processes between magistrates’ courts and the Crown Court, Part 2 makes a number of changes to procedure in criminal courts in England and Wales. This will enable a defendant (if he or she wishes) to engage with the court in writing, which includes engaging online using the Common Platform (a unified online platform for all case management in the criminal justice system). If a defendant does not wish to engage through the written/online procedure, then he or she will be required to attend court at a specified time after the time allowed for such engagement has expired, to indicate a plea in person and, for either way offences, to take part in the mode of trial procedure. Part 2 also enables the court to deal with mode of trial in defendants’ absence, to send indictable cases to the Crown Court without hearing, and for the Crown Court to remit cases to a magistrates’ court where the sentencing powers of the latter would be sufficient and (where the case is being remitted for trial) with the defendant’s consent.

Live-links, virtual hearings and the conduct of certain proceeding ‘on the papers’

31. In criminal proceedings, there are certain circumstances in which the courts are able to use technology to facilitate proceedings; whether by live video link, telephone conference or email. This is either under existing statutory provision or under the courts’ inherent powers. These powers are explained in the legal background section of these Explanatory Notes. The circumstances in which a hearing is required are prescribed in a wide range of legislation and in the Criminal Procedure Rules.

32. Video link technology is increasingly being used across the court estate. This will continue to be installed and upgraded so becoming more commonplace and enabling greater participation in proceedings from remote locations. Part 2 therefore concerns the extending of use of audio and video link and conferencing technology and amends existing legislation that has the practical effect of restricting the use of this technology. It provides for more matters that would usually be conducted at a physical hearing to be dealt with by a ‘virtual-enabled’ hearing, where one or more of the participants appear before the court using a live video or audio link and one or more participants will appear in the physical court room; or by a ‘fully virtual hearing’, where there is no physical court room and the court and participants attend using telephone or video conferencing facilities. These provisions seek to make proceedings in criminal cases more proportionate and efficient for all parties, and so delivers against the Joint Statement’s vision (p.5) that "we must make sure that the justice system is proportionate in order to save people time, shrink their costs, and reduce the impact of legal proceedings on their lives. Justice delayed is justice denied".

Public participation in court and tribunals proceedings

33. Part 2 makes provisions enabling the public to see and hear proceedings which are held virtually. In the context of more proceedings happening outside of a physical courtroom, the Government intends to put in place measures that will maintain transparency, for example by regularising listings and publishing results online. Part 2 enables criminal and civil courts and tribunals to make directions to live stream a hearing which is taking place ‘virtually’: the Government’s intends that it will be possible for these to be viewed by members of the public and media using an in-court screen.

34. There are existing restrictions on photography and sound recording in physical courts. These do not apply to the Supreme Court and where regulations are made by the Lord Chancellor18; Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings. These offences were created to protect the participants, but long before the concept of a virtual hearing was thought possible. Part 2 therefore creates similar offences to protect participants and prohibits recording or transmitting live-streamed proceedings photography and sound recordings in the context of virtual hearings and live-links.

Automatic online conviction and standard statutory penalty

35. The Government’s response to its consultation ‘Transforming our Justice System’ sets out its intention to proceed with a new online conviction and standard statutory penalty procedure, which is a new means for dealing with certain specified summary-only non-imprisonable offences19.

36. Many defendants in these cases already choose to enter their plea in writing by post or online. Defendants can also choose to have their case dealt with by a single magistrate under the Single Justice Procedure (SJP), which means they do not have to attend court. The SJP was established through the Criminal Justice and Courts Act 2015. Under this procedure, the case is dealt with "on the papers" by a single magistrate, supported by a legal adviser, who considers the evidence and any written submissions from the defence and prosecution in their chambers. Around half of all cases heard in magistrates’ courts in England and Wales are summary-only, non-imprisonable offences where there is no identifiable victim and could potentially be tried under this procedure. Of these, certain offences specified in secondary legislation will be eligible for the new automatic online conviction and statutory standard penalty procedure provided for in this Bill, which will take place entirely online and without the involvement of a magistrate. Eligible offences will be specified in secondary legislation made by the Secretary of State and will need to be agreed by Parliament by the affirmative procedure.20

37. Defendants will be required to opt in to this procedure and choose to receive the automatic online conviction and the penalty specified for their offence.

Online procedure and online procedure rules

38. The increased use of technology in the justice system and its ability to help people resolve legal disputes has been the subject of a recent report by the Civil Justice Council.21 The introduction of an ‘online court’ to resolve some low value civil money claims was one of the key recommendations of the Review of Civil Court Structures led by Briggs LJ, which was published in July 2016.22

39. Part 2 will establish a new online procedure which may apply to civil, family and tribunal proceedings. In addition, the provisions will establish an online procedure rule committee. The new rule committee will have expertise in the law and the provision of lay advice and other relevant experience which will enable it to produce court rules which will support the online procedure. The online procedure will be a new digital procedure governed by a new set of rules separate to current processes. It will use a mix of technology, conciliation and judicial resolution to provide a simple and quick dispute resolution process.

Vulnerable witnesses in family cases

40. Courts hearing family proceedings do not have a specific power to prevent an alleged perpetrator of abuse from cross-examining their alleged victim in person, nor do they have the power to order that an advocate be appointed (and funded) to ask questions on behalf of a litigant in person.

41. The fact that it is possible at present for perpetrators (alleged or otherwise) to cross-examine their victims in person in family proceedings has attracted significant criticism, from the All-Party Parliamentary Group on Domestic Violence among others.23 It is widely accepted that such cross-examination can cause the victim significant distress and, as the President of the Family Division has said, "can sometimes amount, and on occasion quite deliberately, to a continuation of the abuse".24 Part 2 prohibits the cross-examination in person in certain circumstances in family proceedings and makes provision for the court, where it is considered necessary in the interests of justice, to appoint a legal representative to carry out the cross-examination. Part 2 also allows the Lord Chancellor to make regulations concerning the payment of legal representatives in these circumstances.

Employment Tribunal rules and procedure

42. The consultation on reforming the Employment Tribunal system 25 set out the Government’s intention to make sure that the powers to determine how cases are managed in Employment Tribunals and the Employment Appeal Tribunal are as flexible as those that apply to other tribunals regulated by the Tribunals, Courts and Enforcement Act 2007 ("TCEA 2007") and sought views on that intention. The Government response to that consultation confirmed that whilst the Employment Tribunal system would continue to sit outside of the unified tribunals system, it would otherwise be brought in line with the way that other tribunals run by Her Majesty’s Courts and Tribunals Service are managed. These amendments to the Employment Tribunals Act 1996, which will enable rules to be made more flexibly and responsively, are essential to enable the effective delivery of the wider reforms whilst enabling the preservation of its unique strengths.

43. Instead of tribunal rules being made by the Lord Chancellor and the Secretary of State for Business, Enterprise and Industrial Strategy under different and limited rule-making powers, the independent, judicial-led Tribunal Procedure Committee will be responsible for making procedure rules for Employment Tribunals and the Employment Appeal Tribunal. The Tribunal Procedure Committee is modelled on the separate rule committees which make rules of court and which makes procedure rules for those tribunals that form part of the unified tribunals system established under the TCEA 2007.

44. The membership of the Tribunal Procedure Committee will be expanded to reflect the Committee’s wider remit. The Tribunal Procedure Committee will be better able to determine how cases should be managed in employment tribunals and the Employment Appeal Tribunal, and accordingly will be able to make new rules flexibly and responsively. This will enable any necessary new rules to be scoped, developed and implemented promptly based on user feedback. The revised powers in respect of procedure rules for the employment tribunal system are modelled on those contained in the TCEA 2007 which apply to the First-tier Tribunal and Upper Tribunal.

Court and tribunal staff: legal advice and judicial functions

45. HM Courts and Tribunals (HMCTS) staff can already be authorised to carry out certain functions of a court or tribunal. Currently staff carry out these duties in most jurisdictions, with the Crown Court and Probate registries being notable exceptions. The duties are authorised in a variety of ways, usually either by the Lord Chancellor (as in magistrates’ courts and the Family Court) or by procedure rules (as in the Civil Procedure Rules or Tribunal Procedure Rules) in the relevant jurisdiction. In tribunals, the procedure rules provide that functions can be exercised only if the person is approved by a person specified in the rules. In practice, persons are approved by the Senior President of Tribunals (exercised by Practice Statements). In the civil jurisdiction functions can be assigned to court staff through Civil Procedure Rules, made under the Civil Procedure Act 1997. In magistrates’ courts and the Family Court, the Lord Chancellor, with the concurrence of the Lord Chief Justice (see section 28 of the Courts Act 2003), identifies which powers of a single justice can be exercised by a justices’ clerk or assistant clerk. Part 3 makes a general provision so that all rules of court governed by the Courts Act 2003 now have the power to provide for the exercise of the functions of the court, or of any judge of the court. Part 3 introduces safeguards for these authorised staff across the jurisdictions to make sure that, amongst other things, they have the necessary independence to undertake judicial functions under the supervision of the judiciary. The Lord Chief Justice and the Senior President of Tribunals will be ultimately responsible for the authorisation and direction of these members of staff.

46. Justices’ clerks are the most senior lawyers employed by HMCTS. Their role is limited by Part 2 of the Courts Act 2003 to the work of magistrates. They oversee the provision of legal advice to magistrates and staff when exercising the jurisdiction of a magistrates’ court or the Family Court. In order to broaden the role of these lawyers to provide leadership across all jurisdictions, the Government is removing this role, but not function, from statute to align with the changes outlined in Part 3.

Local justice areas

47. Section 8 of the Courts Act 2003 requires that England and Wales be divided into local justice areas and makes a provision whereby the Lord Chancellor can alter the boundaries of areas by secondary legislation. There are 104 local justice areas in England and Wales. These create geographical boundaries that relate to three main areas of magistrates’ court business: initiating and listing cases (sequencing for a court’s daily business); the payment and enforcement of fines and community orders; and the leadership and management arrangements for the magistracy. HMCTS (established in the Courts Act 2003) has made certain procedural changes that provide for greater flexibility regarding the allocation of cases and serving magistrates between local justice areas. This included some amendments to Practice Directions (under sections 10 and 30 of the Courts Act 2003), issued by the Lord Chancellor after consulting the Lord Chief Justice (section 10) and with the concurrence of the Lord Chief Justice (section 30), which determine allocation arrangements. Part 3 removes the requirement for the Lord Chancellor to create local justice areas, with the effect of abolishing the areas: magistrates will no longer be appointed to a specific local justice area, instead their appointment will be on a national basis across England and Wales. Part 3 also removes restrictions on allocating and transferring cases between magistrates’ courts, and relating to the payment and enforcement of fines and community orders. It amends provisions concerning the organisation and leadership of the magistracy.

Employment tribunals: panel composition and delegation

48. The Government intends to make sure that the powers to determine how cases are managed in employment tribunals and the Employment Appeal Tribunal are as flexible as those that apply to other tribunals regulated by the TCEA 2007. Although the employment tribunal system will continue to sit outside of the unified tribunal system, it will otherwise be brought in line with the way that the First-tier Tribunal and the Upper Tribunal are managed to enable the effective delivery of the wider reforms whilst enabling the preservation of its unique strengths.

49. Panel composition arrangements in the employment tribunals and Employment Appeal Tribunal are currently given effect through primary and secondary legislation. This contrasts with the First-tier Tribunal and Upper Tribunal where the Lord Chancellor has delegated the responsibility for determining panel composition to the Senior President of Tribunals so that it is carried out as a judicial function. Decisions on judicial allocation and deployment are also judicial functions in the courts system.

50. Similarly, the Lord Chancellor will be made responsible for determining panel composition in the employment tribunals and Employment Appeal Tribunal and will have the power to delegate this responsibility. The intention is that this responsibility will be delegated to the Senior President of Tribunals. The revised powers in respect of panel composition for the employment tribunal system are modelled on those contained in the TCEA 2007 which apply to the First-tier Tribunal and Upper Tribunal. As is already the case in the First-tier Tribunal and Upper Tribunal, the Senior President of Tribunals will be able to delegate any of his judicial functions in relation to the employment tribunals or Employment Appeal Tribunal to members of the judiciary.

Traffic enforcement: witness statements

51. Currently the civil courts are responsible for handling civil disputes and issues across two main branches of operation: the County Court and the High Court.  Both deal with many types of case: money claims, consumer complaints, housing disputes, international business disputes, and patent and contract law. Over 98% of civil claims are handled by the County Court.26

52. The reform programme for courts and tribunals (the principles of which were outlined in the Joint Statement), will, as far as is practicable, remove paper-based procedures from the courts with administration handled digitally in back offices.

53. Part 3 makes provisions relating to the enforcement of certain traffic and air quality offences, which are processed through the Traffic Enforcement Centre ("TEC") in the County Court’s jurisdiction. In certain circumstances, an application may be made to the TEC to set an order for payment aside, for example where a party claims to be unaware of the proceedings relating to an unpaid penalty charge. In some cases a statutory declaration is still required to be used when making an application, while in others a witness statement, which is verified by a statement of truth, is required. Part 3 replaces the requirement to use statutory declarations with a requirement to use a witness statement, verified by a statement of truth in those remaining TEC proceedings that still require the use of a statutory declaration.

Attachment of Earnings Orders

54. Attachment of Earnings Orders ("AEOs") are one of the most commonly used methods of enforcement of a monetary judgment in the County Court, but they are not directly available in the High Court for civil debts. If a creditor in the High Court wishes to enforce a judgment debt by way of an AEO, the matter must first be transferred to the County Court. Part 3 extends the AEO powers of the High Court so that the High Court can make AEOs for the recovery of sums due under a judgment debt, as far as practicable, on the same basis as in the County Court. In terms of calculation of the rate and frequency of repayment under AEOs, currently, the rate of repayment under a county court judgement debt AEO is calculated on a case by case basis (by court administrative staff) by reference to the debtor’s income and necessary outgoings. There are provisions in place, but not yet in force, for the introduction of a fixed deductions scheme, that will mean employers are instructed to deduct an amount as prescribed in a deduction table, rather than on the current system where the rate and frequency of deductions from a debtor’s earnings are calculated by court officials on a case by case basis. Part 3 will enable the High Court judgment debt AEOs to be calculated using the fixed deduction scheme.

The judiciary and the Judicial Appointments Commission

55. Part 4 concerns the judiciary and the Judicial Appointments Commission ("JAC"). With the commitment of the Lord Chancellor, the Lord Chief Justice for England and Wales and the Senior President of Tribunals to reform the courts and tribunals system in England and Wales, the Government has considered how it can help to modernise the judicial system. Some of the measures proposed by the Government in this respect were subject to public consultation and in parts require primary legislation to take them forward. In its response to the consultation, the Government set out its intention to pursue the policy to reform judicial leadership positions27 to allow a wider range of these positions to be offered for a fixed period of time. This will allow leaders of the future to plan ahead and develop skills, knowing that development opportunities will become available.

56. On deployment, the judiciary have far reaching powers to deploy flexibly, but these measures seek to address three specific areas where there are gaps in the current legislation. Non-legislative measures will also be taken forward.

Judicial appointments and deployment

57. Judicial leadership is a function undertaken by the judiciary itself. Judges are supported in executing their roles in this regard by the Judicial Office, who also support them on human resource matters.  At present, some leadership roles are held on a fixed term basis whereas others are not. In addition, some leadership roles are rewarded by extra remuneration while others are not; and in many cases the current arrangements mean that an office holder’s remuneration does not decrease correspondingly when their leadership post ends.  Some judicial leadership roles are statutory and some are not. Part 4 allows fixed-terms to be set for some statutory judicial leadership positions. On the whole legislative provision is already in place to ensure that judges can be paid a leadership allowance on top of their salary, though there is one amendment in Schedule 15 that allows this for District Judges and another that allows it for other leadership judges in the senior courts.

58. Part 4 also concerns the deployment of judges in three particular areas: Recorders sitting as judges in the Upper Tribunal ("UT"); temporary appointments of Deputy High Court Judges; and those judges who are able to sit as judge-arbitrators. The TCEA 2007 sets out the judges who are judges of the UT and therefore may hear cases there. This includes Circuit Judges, District Judges and High Court Judges, but does not include Recorders. Allowing Recorders to sit in the UT would enable the judiciary to deploy Recorders in the UT in order to meet business need.

59. The Lord Chief Justice for England and Wales already has a statutory power to appoint a person meeting the eligibility criteria as a Deputy High Court Judge ("DHCJ") on a temporary and exceptional basis (section 94AA of the Constitutional Reform Act 2005). Part 4 widens this so that the person appointed could sit in any court or tribunal to which a permanent DHCJ could be deployed, as opposed to only the Crown Court or High Court.

60. The Arbitration Act 1996 provides for two types of judge to sit as judicial-arbitrators: judges of the Commercial Court as well as judges conducting official referees’ business. The latter is now dealt with by judges of the Technology & Construction Court. This allows cases falling within the jurisdiction of these courts to be resolved through arbitration by a judge sitting as a judge-arbitrator. Part 4 extends the range of judges who can sit as judge-arbitrators to include eligible High Court judges, which is defined as High Court judges and judges sitting as High Court judges by virtue of section 9(1) of the Senior Courts Act 1981. The Lord Chief Justice will be able to delegate his functions in agreeing that judges can sit as judge-arbitrators.

Appointments to the Employment Appeals Tribunal and remuneration of employment tribunal members

61. The Secretary of State for Business, Energy and Industrial Strategy currently has the authority to pay remuneration to members of the Employment Tribunals and Employment Appeal Tribunal. Under the revised legislation, arrangements for the remuneration of judges and members of employment tribunals will be under the remit of the Lord Chancellor. This is in line with the TCEA 2007 which provides for Lord Chancellor responsibility for remuneration, pay and expenses of judges and members of the First-tier Tribunal and Upper Tribunal.

62. Section 22 of the Employment Tribunals Act 1996 makes provision for membership of the Employment Appeal Tribunal. The revised legislation will extend the list of those who may be appointed to the Employment Appeal Tribunal, to include the President of Employment Tribunals (England and Wales) and the President of Employment Tribunals (Scotland). This mirrors similar provisions in the TCEA 2007 which provide for First-tier Tribunal Chamber Presidents to be members of the Upper Tribunal.

Judicial Appointments Commission

63. The Judicial Appointments Commission (JAC) was established in 2006 as an executive non-departmental public body to select candidates for judicial office. As a statutory corporation, the JAC derives its powers from statute (the Constitutional Reform Act 2005).

64. In 2015, the Government conducted a triennial review of the JAC, which recommended that it explore providing assistance to a wider range of appointments and develop a charging model for this. The JAC has acknowledged expertise in independent merit-based appointments. Reflecting this, the JAC is occasionally approached to provide assistance outside of core appointments activity.

65. Part 4 provides that the Lord Chancellor may request the JAC to provide assistance in respect of an appointment or recommendation for appointment, whether or not such appointment or recommendation is to be made by the Lord Chancellor or a Minister of the Crown, and that the JAC should be able to charge to enable the costs of such assistance to be met by those who receive it. It makes clear that the JAC’s core activities must be prioritised, and retains the Lord Chancellor’s obligation to consult before requesting the JAC’s assistance.


66. The Government consulted between November 2016 and January 2017 on a package of measures to tackle the continuing high number and cost of whiplash claims and their impact on motor insurance premiums.

67. The Government set out its concern that the volume of road traffic accident related personal injury claims has remained static over the last three years and is over fifty per cent higher than 10 years ago (460,000 claims registered in 2005/06 28 compared with 770,000 in 2015/16). The number of claims remains high despite a reduction in the number of road traffic accidents reported to the police and improvements in vehicle safety, for example better head restraints. Similar improvements in vehicle safety in other jurisdictions have led to a reduction in both the number of claims and motor insurance premiums.

68. The continuing high number of low value claims increases the cost of motor insurance premiums, paid by motorists in England and Wales.  The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered, and is introducing measures to disincentivise minor, exaggerated and fraudulent claims. Part 5 addresses this matter.

1 Prison Safety and Reform White Paper Cm 9350:

2 Queen’s Speech Announcement on prison reform:


4 Transforming our Justice System, Joint Statement:

5 Transforming our Courts and Tribunals, Cm9391:;

5 Reforming the soft tissue injury claims process, consultation:

5 Modernising judicial terms and conditions, consultation:

5 Reforming the Employment Tribunal System, consultation:

6 In 2010 the National Audit Office estimated the cost to the economy of re-offending of those released from custody to be between £9 billion to £13.5 billion. This figure has subsequently been uprated to up to £15 billion to reflect 2016 prices.

7 National Statistics: Safety in Custody quarterly: update to September 2016

8 Summary of the main findings of the review of Islamist Extremism in prisons, probation and youth justice

9 House of Lords written question HL4385

10 Prisons and Probation Ombudsman (2015) Learning lessons bulletin: New psychoactive substances, London: PPO

11 11 Her Majesty’s Chief Inspector of Prisons, Annual Report, 2016:

12 Transforming our Justice System, p.3

13 A review of the Criminal Courts of England and Wales, Rt. Hon Robert Auld, LJ [2001]


15 Efficiency in the Criminal Justice System: National Audit Office, 2016:

16 Review of Civil Courts Structure, LJ Briggs [2016]

17 The establishment of the Criminal Procedure Rule Committee was an outcome of the Auld Review 2001; and legislation in the Criminal Justice Act 2003;

18 Section 47 Constitutional Reform Act 2005 and s.31 Crime and Courts Act 2013 makes exemptions for the Supreme Court, and section 32 Crime and Courts Act 2013 enables the Lord Chancellor to make exceptions to the prohibitions on photography and sound recording.

19 Transforming our Justice System

20 It is the Government’s intention to specify the following offences in the first Order: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line.





25 Reforming the Employment Tribunal System, consultation:

26 This is based on 1.62m claims being issued by County Courts in 2014 compared to fewer than 25,000 proceedings started in 2014 across the Queen’s Bench and Chancery Divisions in the High Court. Source: MoJ Civil Justice Statistics Quarterly.

27 consultation:




Prepared 22nd February 2017