Prisons and Courts Bill (HC Bill 170)

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(b) may be varied or revoked by the Senior President of
Tribunals at any time.

(5) The Senior President of Tribunals may delegate to one or more of
the following the Senior President of Tribunals’ functions under
5the preceding provisions of this paragraph—

(a) a judicial office holder;

(b) a person appointed under section 2(1) of the Courts Act
2003 or section 40(1) of the Tribunals, Courts and
Enforcement Act 2007.

(6) 10A person to whom functions are delegated under sub-paragraph
(5)(b) is not subject to the direction of any person other than the
Senior President of Tribunals or a judicial office holder when
exercising the functions.

(7) Subsections (3) to (5) of section 8 of the Tribunals, Courts and
15Enforcement Act 2007 apply to a delegation under sub-paragraph
(5) as they apply to a delegation under subsection (1) of that
section.

(8) In this paragraph “judicial office holder” has the meaning given by
section 109(4) of the Constitutional Reform Act 2005.

20Time limits

3 Procedure Rules may make provision for time limits as respects
initiating, or taking any step in, proceedings before the relevant
tribunal.

Determining where to start proceedings

4 25Procedure Rules may include provision for determining whether
proceedings are to be brought in England and Wales or in
Scotland.

Repeat applications

5 Procedure Rules may make provision restricting the making of
30fresh applications where a previous application in relation to the
same matter has been made.

Tribunal acting of its own initiative

6 Procedure Rules may make provision about the circumstances in
which the relevant tribunal may exercise its powers of its own
35initiative.

Hearings

7 Procedure Rules may—

(a) make provision for dealing with matters without a
hearing;

(b) 40make provision as respects allowing or requiring a hearing
to be in private or as respects allowing or requiring a
hearing to be in public.

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Proceedings without notice

8 Procedure Rules may make provision for proceedings to take
place, in circumstances described in Procedure Rules, at the
request of one party even though the other, or another, party has
5had no notice.

Representation

9 Procedure Rules may make provision conferring additional rights
of audience before the relevant tribunal.

Intervention by Secretary of State

10 10Procedure Rules may make provision—

(a) for the Secretary of State to be treated (either generally or
in circumstances prescribed by the Rules) as a party to any
proceedings, and

(b) for the Secretary of State to be entitled to appear and to be
15heard accordingly.

Evidence, witnesses and attendance

11 (1) Procedure Rules may make provision about evidence (including
evidence on oath and administration of oaths).

(2) Procedure Rules may modify any rules of evidence provided for
20elsewhere, so far as they would apply to proceedings before the
relevant tribunal.

(3) Procedure Rules for the Appeal Tribunal may make provision,
where an employment tribunal has required a person—

(a) to attend at any place for the purpose of giving evidence,

(b) 25otherwise to make himself available to give evidence,

(c) to swear an oath in connection with the giving of evidence,

(d) to give evidence as a witness,

(e) to produce a document, or

(f) to facilitate the inspection of a document or any other thing
30(including any premises),

for the Appeal tribunal to deal with non-compliance with the
requirement as though the requirement had been imposed by the
Appeal tribunal.

(4) Procedure Rules may make provision for the payment of expenses
35and allowances to persons giving evidence, producing
documents, attending proceedings or required to attend
proceedings.

Use of information

12 (1) Procedure Rules may make provision for the disclosure or non-
40disclosure of information received during the course of
proceedings before the relevant tribunal.

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(2) Procedure Rules may make provision for imposing reporting
restrictions in circumstances described in Procedure Rules.

Set-off

13 Procedure Rules may make provision for a party to proceedings to
5deduct, from amounts payable by the party, amounts payable to
him or her.

Review of decisions

14 Procedure Rules may confer power on the relevant tribunal to
review its decisions, and revoke or vary its orders and awards, in
10such circumstances as may be determined in accordance with the
rules.

Correction of errors and setting aside of decisions on procedural grounds

15 (1) Procedure Rules may make provision for the correction of
accidental errors in a decision or record of a decision.

(2) 15Procedure Rules may make provision for the setting aside of a
decision in proceedings before the relevant tribunal—

(a) where a document relating to the proceedings was not sent
to, or was not received at an appropriate time by, a party
to the proceedings or a party’s representative,

(b) 20where a document relating to the proceedings was not sent
to the tribunal at an appropriate time,

(c) where a party to the proceedings, or a party’s
representative, was not present at a hearing related to the
proceedings, or

(d) 25where there has been any other procedural irregularity in
the proceedings.

(3) Sub-paragraphs (1) and (2) do not affect, and are not affected by,
any power to correct errors or set aside decisions that is
exercisable apart from rules made by virtue of those sub-
30paragraphs.

Registration and proof of decisions

16 Procedure Rules may make provision for the registration and
proof of decisions, orders and awards of the relevant tribunal.

Ancillary powers

17 35Procedure Rules may confer on the relevant tribunal such
ancillary powers as are necessary for the proper discharge of its
functions.

Rules may refer to practice directions

18 Procedure Rules may, instead of providing for any matter, refer to
40provision made or to be made about that matter by directions
under section 7A or 29A (as appropriate).

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Presumptions

19 Procedure Rules may make provision in the form of presumptions
(including, in particular, presumptions as to service or
notification).

5Differential provision

20 Procedure Rules may make different provision for different
purposes or different areas.

Part 3 Supplementary and interpretation
10Procedure for making Procedure Rules

21 (1) Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act
2007 (which makes provision about how Tribunal Procedure
Rules are to be made) applies to the making of Procedure Rules
under this Act as it applies to the making of Tribunal Procedure
15Rules under section 22 of that Act, with the following
modification.

(2) In paragraph 28(1)(a) of Schedule 5 to the Tribunals, Courts and
Enforcement Act 2007 as it applies by virtue of sub-paragraph (1),
the reference to the Chamber Presidents is to be treated as if it
20were a reference to the President of the Employment Tribunals
(England and Wales) and the President of the Employment
Tribunals (Scotland).

Interpretation

22 In this Schedule—

  • 25“Procedure Rules” means rules made under section 7 or 30;

  • “the relevant tribunal” means—

    (a)

    in relation to Procedure Rules made under section 7,
    an employment tribunal;

    (b)

    in relation to Procedure Rules made under section 30,
    30the Appeal tribunal.”

Part 2 Consequential and other amendments

Employment Rights Act 1996

6 In section 163 of the Employment Rights Act 1996 (references to employment
35tribunals), after subsection (5) insert—

(6) Where in accordance with Employment Tribunal Procedure Rules an
employment tribunal determines in the same proceedings a
complaint presented under section 111 (unfair dismissal) and a
question referred under this section, subsection (2) has no effect for

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the purposes of the proceedings in so far as they relate to the
complaint under section 111.”

Employment Tribunals Act 1996

7 The Employment Tribunals Act 1996 is amended as follows.

8 (1) 5Section 7A (practice directions) is amended as follows.

(2) In subsection (A1), after “about the” insert “practice and”.

(3) For subsection (1) substitute—

(1) The territorial President may make directions about the practice and
procedure of employment tribunals.”

(4) 10Omit subsection (2).

(5) In subsection (2A), for “The power under subsection (A1) includes”
substitute “The powers under subsections (A1) and (1) include”.

(6) In subsection (2C), for “(1)(a)” substitute “(1)”.

9 In section 7B (mediation), for subsections (1) and (2) substitute—

(1) 15A person exercising power to make Procedure Rules or give practice
directions must, when making provision in relation to mediation,
have regard to the following principles—

(a) mediation of matters in dispute between parties to
proceedings is to take place only by agreement between those
20parties;

(b) where parties to proceedings fail to mediate, or where
mediation between parties to proceedings fails to resolve
disputed matters, the failure is not to affect the outcome of
the proceedings.

(2) 25Practice directions may provide for members to act as mediators in
relation to disputed matters in a case that is the subject of
proceedings.

(2A) The provision that may be made by virtue of subsection (2) includes
provision for a member to act as a mediator in relation to disputed
30matters in a case even though the member has been chosen to decide
matters in the case.”

10 (1) Section 9 (pre-hearing reviews) is amended as follows.

(2) For subsection (1) substitute—

(1) Procedure Rules which authorise an employment tribunal to carry
35out a pre-hearing review may include provision for enabling such
powers to be exercised in connection with the pre-hearing review as
may be prescribed by the rules.”

(3) In subsection (2), for “Such regulations” substitute “Such Rules”.

(4) In subsection (3), for “Secretary of State” substitute “Lord Chancellor”.

(5) 40In subsection (2A), for “Regulations under subsection (1)(b)” substitute
“Rules under subsection (1)”.

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(6) For subsection (4) substitute—

(4) In this section “pre-hearing review” means a review of any
proceedings before an employment tribunal which takes place at a
time before a hearing held for the purpose of determining them.”

11 (1) 5In section 10 (national security),

(2) In subsections (2), (5) and (6) (in both places it occurs) omit “Employment
tribunal procedure”.

(3) In subsection (7), omit “employment tribunal procedure”.

(4) After subsection (9) insert—

(10) 10Regulations under this section are to be made by the Lord
Chancellor.”

12 Omit section 10A (confidential information).

13 In section 11 (restriction of publicity in sexual misconduct cases)—

(a) in subsection (1), for “Employment tribunal procedure regulations”
15substitute “Procedure Rules”;

(b) in subsection (6), in paragraph (a) of the definition of “restricted
reporting order”, for “regulations” substitute “Procedure Rules”.

14 In section 12 (restriction of publicity in disability cases)—

(a) in subsection (2), for “Employment tribunal procedure regulations”
20substitute “Procedure Rules”;

(b) in subsection (7)—

(i) in the definition of “promulgation”, for “regulations”
substitute “Procedure Rules”;

(ii) in paragraph (a) of the definition of “restricted reporting
25order”, for “regulations” substitute “Procedure Rules”.

15 (1) Section 13 (costs and expenses) is amended as follows.

(2) In subsection (1)—

(a) for “Employment tribunal procedure regulations may include
provision—” substitute “Procedure Rules may make provision for
30regulating matters relating to—”;

(b) in paragraphs (a) and (b), omit “for the award of”.

(3) In subsection (1A)—

(a) for “Regulations”, in the first place it occurs, substitute “Rules”;

(b) for “such regulations” substitute “such Rules”.

(4) 35In subsection (1B), for “Employment tribunal procedure regulations”
substitute “Procedure Rules”.

(5) In subsection (1C), for “Employment tribunal procedure regulations”
substitute “Procedure Rules”.

(6) In subsection (2), in the words after paragraph (b), for “employment tribunal
40procedure regulations” substitute “Procedure Rules”.

(7) In subsection (3), for the words from the beginning to “under subsection (1)”
substitute “Procedure Rules”.

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(8) In subsection (4)(a), for “the regulations” substitute “Procedure Rules”.

16 In section 13A (preparation time)—

(a) in subsection (1), for “Employment tribunal procedure regulations”
substitute “Procedure Rules”;

(b) 5in subsection (2), for “Regulations” substitute “Procedure Rules”;

(c) in subsection (2A)—

(i) for “employment tribunal procedure regulations” substitute
“Procedure Rules”;

(ii) for “the regulations” substitute “Procedure Rules”;

(d) 10in subsection (2B)(a) for “the regulations” substitute “Procedure
Rules”;

(e) in subsection (3)—

(i) in the words before paragraph (a), for “employment tribunal
procedure regulations” substitute “Procedure Rules”, and

(ii) 15in paragraph (b), for “of the kind mentioned in section
13(1)(a)” substitute “for the award of costs or expenses”;

(f) in subsection (4)—

(i) in the words before paragraph (a), for “the regulations”
substitute “Procedure Rules”;

(ii) 20in paragraph (b), for “of the kind mentioned in section
13(1)(a)” substitute “of costs or expenses”.

17 (1) Section 14 (interest) is amended as follows.

(2) In subsection (1), for “Secretary of State” substitute “Lord Chancellor”.

(3) In subsection (3)(f), “Secretary of State” substitute “Lord Chancellor”.

18 25In section 15(1) (enforcement), for “employment tribunal procedure
regulations” substitute “Procedure Rules”.

19 In section 18A (requirement to contact ACAS before instituting
proceedings)—

(a) in subsection (10), for “employment tribunal procedure regulations”
30substitute “regulations made by the Secretary of State”;

(b) in subsection (11), for “The Secretary of State may by employment
tribunal procedure regulations” substitute “The regulations may”;

(c) in subsection (12)—

(i) for “Employment tribunal procedure regulations” substitute
35“The regulations”;

(ii) in paragraph (a), for “such regulations” substitute “the
regulations”.

20 In section 19(1) (conciliation), for “Employment tribunal procedure
regulations” substitute “Procedure Rules”.

21 40In section 19A(9) (conciliation: recovery of sums), for “Employment tribunal
procedure regulations” substitute “Procedure Rules”.

22 In section 29A (practice directions)—

(a) in subsection (1), after “about the” insert “practice and”;

(b) in subsection (5) after “about the” insert “practice or”.

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23 In section 31(1) (restriction of publicity in sexual misconduct cases), for
“Appeal Tribunal procedure rules” substitute “Procedure Rules”.

24 In section 32(2) (restriction of publicity in disability cases), for “Appeal
Tribunal procedure rules” substitute “Procedure Rules”

25 (1) 5Section 34 (costs and expenses in the Employment Appeal Tribunal) is
amended as follows.

(2) For subsection (1) substitute—

(1) Procedure Rules may make provision for regulating matters relating
to costs or expenses.”

(3) 10In subsection (3), for “Appeal tribunal procedure rules” substitute
“Procedure Rules”.

(4) In subsection (4), for “Appeal tribunal procedure rules” substitute
“Procedure Rules”.

26 (1) Section 41 (orders, regulations and rules) is amended as follows.

(2) 15After subsection (1) insert—

(1A) No recommendation may be made to Her Majesty to make an Order
in Council under section 38(4) unless a draft of the Order in Council
has been laid before Parliament and approved by a resolution of each
House of Parliament.”

(3) 20In subsection (2)—

(a) for the words from the beginning to “no order shall be made under”
substitute A statutory instrument containing—

(a) an order under”;

(b) for “and no regulations are to be made under” substitute—

(b) 25regulations under”;

(c) for the words from “unless a draft” to the end substitute , or

regulations under section 7AZA or 30A that amend or
repeal provision made by an Act,

may not be made unless a draft of the instrument has been
30laid before and approved by a resolution of each House of
Parliament.”

(4) After subsection (4) insert—

(5) This section does not apply in relation to Procedure Rules (the
procedure for which is dealt with by Schedule A1).”

27 35In section 42(1) (interpretation)—

(a) omit—

(i) the definition of “Appeal Tribunal procedure rules”;

(ii) the definition of “employment tribunal procedure
regulations”;

(b) 40in the appropriate place insert—

  • ““Procedure Rules” shall be construed in accordance with sections
    7 and 30;”.

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Section 50

SCHEDULE 11 Court and tribunal staff: legal advice and judicial functions

Part 1 Courts

5Criminal Justice Act 1972

1 In section 51 of the Criminal Justice Act 1972 (execution of process between
England and Wales and Scotland), omit subsection (4).

Solicitors Act 1974

2 In section 3(1) of the Solicitors Act 1974 (admission as solicitor), omit the
10words from the beginning to “clerk),”.

Bail Act 1976

3 In section 8(4)(a) of the Bail Act 1976 (recognizance of surety), omit “, a
justices’ clerk”.

Magistrates’ Courts Act 1980

4 15The Magistrates’ Courts Act 1980 is amended as follows.

5 (1) Section 12 (non-appearance of accused: plea of guilty) is amended as
follows.

(2) In subsection (7), omit “by the clerk of the court”.

(3) In subsection (7ZA), at the end insert—

(c) 20specify the persons, or description of persons, who must—

(i) read out the things mentioned in such of those
paragraphs as apply, and

(ii) give the account mentioned in subsection (7A).”

(4) In subsection (7A), omit “by the clerk of the court”.

6 25In section 77(6)(a) (postponement of issue of warrant: reference of
application to court), omit “clerk of the”.

7 In section 114 (recognizances and fees on case stated)—

(a) for “justices’ clerk” substitute “designated officer for the court”, and

(b) omit “for the court”.

8 (1) 30Section 125C (disclosure of information for enforcing warrants) is amended
as follows.

(2) In subsection (1), omit “(or to a justices’ clerk who is specified in the
application)”.

(3) In subsection (3)(c) omit “justices’ clerk or other”.

9 35In section 125CB(1)(c) (use of information supplied under disclosure order),
omit “justices’ clerk or other”.

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10 In section 144 (rules of procedure), for subsections (1) and (1ZA) substitute—

(1) The Lord Chief Justice may, with the concurrence of the Lord
Chancellor, make rules for regulating and prescribing, except in
relation to any criminal cause or matter, the procedure and practice
5to be followed—

(a) in magistrates’ courts, and

(b) by designated officers for magistrates’ courts.”

Highways Act 1980

11 In section 116(9) of the Highways Act 1980 (power of magistrates’ court to
10authorise stopping up or diversion of highway), for “justices’ clerk”
substitute “designated officer for the court”.

Matrimonial and Family Proceedings Act 1984

12 The Matrimonial and Family Proceedings Act 1984 is amended as follows.

13 In section 31C(2) (precedent in the family court), for “justices’ clerk or an
15assistant to a justices’ clerk,” substitute “person authorised under section
67A(2) of the Courts Act 2003,”.

14 For section 31O substitute—

31O Function of giving legal advice to judges

(1) The Lord Chief Justice may authorise a person—

(a) 20to give advice to judges of the family court about matters of
law (including procedure and practice) on questions arising
in connection with the discharge by them of functions
conferred on them or the court, including questions arising
when the person is not personally attending on them, and

(b) 25to bring to the attention of judges of the family court, at any
time when the person thinks appropriate, any point of law
(including procedure and practice) that is or may be involved
in any question so arising.

(2) The Lord Chief Justice may authorise a person under subsection (1)
30only if the person—

(a) is appointed under section 2(1) of the Courts Act 2003 or
section 40(1) of the Tribunals, Courts and Enforcement Act
2007, and

(b) has such qualifications as may be prescribed by regulations
35made by the Lord Chancellor with the agreement of the Lord
Chief Justice.

(3) An authorisation under subsection (1)—

(a) may be subject to conditions, and

(b) may be varied or revoked by the Lord Chief Justice at any
40time.

(4) The Lord Chief Justice may give directions to a person authorised to
exercise functions under subsection (1).