Prisons and Courts Bill (HC Bill 170)

(5) Apart from such directions, a person authorised to exercise functions
under subsection (1) is not subject to the direction of the Lord
Chancellor or any other person when exercising the functions.

(6) The Lord Chief Justice may nominate one or more of the following to
5exercise the Lord Chief Justice’s functions under the preceding
provisions of this section—

(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
102007.

(7) A person nominated under subsection (6)(b) is not subject to the
direction of any person other than the Lord Chief Justice or a judicial
office holder when exercising the Lord Chief Justice’s functions
under this section.

(8) 15In this section “judicial office holder” has the meaning given by
section 109(4) of the Constitutional Reform Act 2005.”

15 In section 31P (orders, regulations and rules), omit subsection (2).

Police and Criminal Evidence Act 1984

16 Omit section 47A of the Police and Criminal Evidence Act 1984 (early
20administrative hearings).

Civil Procedure Act 1997

17 In Schedule 1 to the Civil Procedure Act 1997 (civil procedure rules), omit
paragraph 2.

Crime and Disorder Act 1998

18 25The Crime and Disorder Act 1998 is amended as follows.

19 (1) Section 49 (powers of magistrates’ courts exercisable by single justice) is
amended as follows.

(2) In subsection (1)—

(a) omit “for any area”, and

(b) 30omit “for that area”.

(3) Omit subsections (2) to (5).

20 In section 50 (early administrative hearings), in subsection (4), for the words
from the beginning to “such a clerk” substitute “Where the powers of a
single justice are exercised by a person authorised under section 67A(2) of
35the Courts Act 2003, nothing in subsection (3)(b) above authorises the
person”.

Courts Act 2003

21 The Courts Act 2003 is amended as follows.

22 For sections 27 to 29 substitute—

““Legal advice

28 Function of giving legal advice to justices of the peace

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

(a) 5to give advice to justices of the peace about matters of law
(including procedure and practice) on questions arising in
connection with the discharge of their functions, including
questions arising when the person is not personally attending
on them, and

(b) 10to bring to the attention of justices of the peace, 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) For the purposes of subsection (1), the functions of justices of the
15peace do not include functions as a judge of the family court or the
Crown Court.

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

(a) is appointed under section 2(1) of this Act or section 40(1) of
20the Tribunals, Courts and Enforcement Act 2007, and

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

(4) An authorisation under subsection (1)—

(a) 25may be subject to conditions, and

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

(5) The Lord Chief Justice may nominate one or more of the following to
exercise the Lord Chief Justice’s functions under the preceding
30provisions of this section—

(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) 35A person nominated under subsection (5)(b) is not subject to the
direction of any person other than the Lord Chief Justice or a judicial
office holder when exercising the Lord Chief Justice’s functions
under this section.

(7) In this section “judicial office holder” has the meaning given by
40section 109(4) of the Constitutional Reform Act 2005.

29 Directions and independence

(1) The Lord Chief Justice may give directions to a person authorised to
exercise functions under section 28(1).

(2) Apart from such directions, a person authorised to exercise functions
under section 28(1) is not subject to the direction of the Lord
Chancellor or any other person when exercising the functions.

(3) The Lord Chief Justice may nominate one or more of the following to
5exercise the Lord Chief Justice’s functions under subsection (1)—

(a) a judicial office holder;

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

(4) A person nominated under subsection (3)(b) is not subject to the
10direction of any person other than the Lord Chief Justice or a judicial
office holder when exercising the Lord Chief Justice’s functions
under subsection (1).

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

23 15In section 31 (immunity for acts within jurisdiction), omit subsection (2).

24 In section 32 (immunity for certain acts beyond jurisdiction), omit subsection
(2).

25 (1) Section 34 (costs in legal proceedings) is amended as follows.

(2) Omit subsection (2).

(3) 20In subsection (3)—

(a) for “subsections (1) and (2) do” substitute “subsection (1) does”, and

(b) omit “, justices’ clerk or assistant clerk”.

(4) In subsection (4), for “or (2) from ordering a justice of the peace, justices’
clerk or assistant clerk” substitute “from ordering a justice of the peace”.

26 (1) 25Section 35 (indemnity) is amended as follows.

(2) In subsection (1), omit “, justices’ clerk or assistant clerk” (in both places).

(3) In subsection (3), omit “, justices’ clerk or assistant clerk”.

(4) In subsection (4), omit “, justices’ clerk or assistant clerk”.

27 In section 37(2) (designated officers and magistrates’ courts)—

(a) 30omit the “and” at the end of paragraph (a), and

(b) omit paragraph (b).

28 After Part 6 insert—

““Part 6A 35Exercise of judicial functions by authorised persons

67A Authorisation

(1) Any power to make rules of court in relation to a court to which the
general duty of the Lord Chancellor under section 1 of this Act

applies includes power for the rules to provide for the exercise of
functions of the court, or of any judge of the court, by persons who—

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

(b) 5satisfy any requirements specified in the rules as to
qualifications or experience.

(2) A person may exercise functions by virtue of subsection (1) only if
authorised to do so by the Lord Chief Justice.

(3) Such a person is referred to in this Part as an “authorised person”.

(4) 10An authorisation under subsection (2)—

(a) may be subject to conditions, and

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

(5) The Lord Chief Justice may nominate one or more of the following to
15exercise the Lord Chief Justice’s functions under the preceding
provisions of this section—

(a) a judicial office holder;

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

(6) 20A person nominated under subsection (5)(b) is not subject to the
direction of any person other than the Lord Chief Justice or a judicial
office holder when exercising the Lord Chief Justice’s functions
under this section.

(7) In this Part, references to the functions of a judge of a court—

(a) 25include references to any judicial functions of a person
holding an office that entitles the person to exercise functions
as a judge of the court, and

(b) in relation to a magistrates’ court, include anything that is a
function of one or more justices of the peace.

(8) 30But nothing in this Part applies in relation to any function of a
committee of justices.

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

67B Directions and independence: authorised persons

(1) 35The Lord Chief Justice may give directions to an authorised person.

(2) Apart from such directions, an authorised person is not subject to the
direction of the Lord Chancellor or any other person when exercising
the functions of a court or judge.

(3) The Lord Chief Justice may nominate one or more of the following to
40exercise the Lord Chief Justice’s functions under subsection (1)—

(a) a judicial office holder;

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

(4) A person nominated under subsection (3)(b) is not subject to the
45direction of any person other than the Lord Chief Justice or a judicial

office holder when exercising the Lord Chief Justice’s functions
under subsection (1).

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

67C 5Protection of authorised persons

(1) No action lies against an authorised person in respect of what the
person does or omits to do—

(a) in the execution of the person’s duty as an authorised person
exercising, by virtue of rules of court, a function of a court or
10judge, and

(b) in relation to a matter within the person’s jurisdiction.

(2) An action lies against an authorised person in respect of what the
person does or omits to do—

(a) in the purported execution of the person’s duty as an
15authorised person exercising, by virtue of rules of court, a
function of a court or judge, but

(b) in relation to a matter not within the person’s jurisdiction,

if, but only if, it is proved that the person acted in bad faith.

(3) If an action is brought in circumstances in which subsection (1) or (2)
20provides that no action lies, the court in which the action is
brought—

(a) may, on the application of the defendant, strike out the
proceedings in the action, and

(b) if it does so, may if it thinks fit order the person bringing the
25action to pay costs.

67D Costs in legal proceedings: authorised persons

(1) A court may not order an authorised person to pay costs in any
proceedings in respect of what the person does or omits to do in the
execution (or purported execution) of the person’s duty as an
30authorised person exercising, by virtue of rules of court, a function
of a court or judge.

(2) But subsection (1) does not apply in relation to any proceedings in
which an authorised person—

(a) is being tried for an offence or is appealing against a
35conviction, or

(b) is proved to have acted in bad faith in respect of the matters
giving rise to the proceedings.

(3) A court which is prevented by subsection (1) from ordering an authorised
person to pay costs in any proceedings may instead order the Lord
40Chancellor to make a payment in respect of the costs of a person in the
proceedings.

(4) The Lord Chancellor may, after consulting the Lord Chief Justice,
make regulations specifying—

(a) circumstances in which a court must or must not exercise the
45power conferred on it by subsection (3), and

(b) how the amount of any payment ordered under subsection
(3) is to be determined.

(5) The Lord Chief Justice may nominate a judicial office holder (as
defined in section 109(4) of the Constitutional Reform Act 2005) to
exercise the Lord Chief Justice’s functions under this section.

67E Indemnification of authorised persons

(1) 5“Indemnifiable amounts”, in relation to an authorised person,
means—

(a) costs which the person reasonably incurs in or in connection
with proceedings in respect of anything done or omitted to be
done in the exercise (or purported exercise) of the person’s
10duty as an authorised person,

(b) costs which the person reasonably incurs in taking steps to
dispute a claim which might be made in such proceedings,

(c) damages awarded against the person or costs ordered to be
paid by the person in such proceedings, or

(d) 15sums payable by the person in connection with a reasonable
settlement of such proceedings or such a claim.

(2) Indemnifiable amounts relate to criminal matters if the duty
mentioned in subsection (1)(a) relates to criminal matters.

(3) The Lord Chancellor must indemnify an authorised person in respect of—

(a) 20indemnifiable amounts which relate to criminal matters, unless it is
proved, in respect of the matters giving rise to the proceedings or
claim, that the person acted in bad faith, and

(b) other indemnifiable amounts if, in respect of the matters giving rise
to the proceedings or claim, the person acted reasonably and in good
25faith.

(4) The Lord Chancellor may indemnify an authorised person in respect of other
indemnifiable amounts unless it is proved, in respect of the matters giving
rise to the proceedings or claim, that the person acted in bad faith.

(5) Any question whether, or to what extent, an authorised person is to
30be indemnified under this section is to be determined by the Lord
Chancellor.

(6) The Lord Chancellor may, if the person claiming to be indemnified
so requests, make a determination for the purposes of this section
with respect to—

(a) 35costs such as are mentioned in subsection (1)(a) or (b), or

(b) sums such as are mentioned in subsection (1)(d),

before the costs are incurred or the settlement in connection with
which the sums are payable is made.

(7) But a determination under subsection (6) before costs are incurred—

(a) 40is subject to such limitations (if any) as the Lord Chancellor
thinks proper and to the subsequent determination of the
costs reasonably incurred, and

(b) does not affect any other determination which may fall to be
made in connection with the proceedings or claim in
45question.”

29 (1) Section 70 (Criminal Procedure Rule Committee) is amended as follows.

(2) In subsection (2), for paragraph (f) substitute—

“(f) one person authorised under section 28(1) (authorisation to
provide legal advice to justices of the peace),”.

(3) After subsection (4) insert—

“(4A) 5A person falling within subsection (2)(f) exercising a function as a
member of the Criminal Procedure Rule Committee is not subject to
the direction of the Lord Chancellor or any other person.”

30 In section 76(2) (scope of Family Procedure Rules)—

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

(b) 10omit paragraph (aa).

31 (1) Section 77 (membership of Family Procedure Rule Committee) is amended
as follows.

(2) In subsection (2), for paragraph (g) substitute—

“(g) one person authorised under section 31O(1) of the
15Matrimonial and Family Proceedings Act 1984 (authorisation
to provide legal advice to judges of the family court),”.

(3) After subsection (5) insert—

“(5A) A person falling within subsection (2)(g) exercising a function as a
member of the Family Procedure Rule Committee is not subject to
20the direction of the Lord Chancellor or any other person.”

Mental Capacity Act 2005

32 In section 51(2) of the Mental Capacity Act 2005 (scope of Court of Protection
Rules), omit paragraph (d).

Part 2 25Tribunals

Tribunals, Courts and Enforcement Act 2007

33 The Tribunals, Courts and Enforcement Act 2007 is amended as follows.

34 In section 8(2) (functions of Senior President of Tribunals excluded from
general power to delegate), at the appropriate places insert—

• 30““section 29F;

• section 29H;”, and

• “paragraph 3 of Schedule 5;

• paragraph 2 of Schedule A1 to the Employment Tribunals Act 1996.”

35 After Chapter 2 of Part 1 insert—

““CHAPTER 2A Exercise of tribunal functions by authorised persons

29E Meaning of “authorised person”

5In this Chapter “authorised person” means a person authorised—

(a) under paragraph 3 of Schedule 5 to exercise functions of the
First-tier Tribunal or Upper Tribunal, or

(b) under paragraph 2 of Schedule A1 to the Employment
Tribunals Act 1996 to exercise functions of an employment
10tribunal or the Employment Appeal Tribunal.

29F Directions and independence: authorised persons

(1) The Senior President of Tribunals may give directions to an
authorised person.

(2) Apart from such directions, an authorised person is not subject to the
15direction of the Lord Chancellor or any other person when exercising
the functions of a tribunal.

(3) The Senior President of Tribunals may delegate to one or more of the
following the Senior President of Tribunals’ functions under
subsection (1)—

(a) 20a judicial office holder;

(b) a person appointed under section 2(1) of the Courts Act 2003
or section 40(1) of this Act.

(4) A person to whom functions are delegated under subsection (3)(b) is
not subject to the direction of any person other than the Senior
25President of Tribunals or a judicial office holder when exercising the
functions.

(5) Subsections (3) to (5) of section 8 apply to a delegation under
subsection (3) of this section as they apply to a delegation under
subsection (1) of that section.

(6) 30In this section “judicial office holder” has the meaning given by
section 109(4) of the Constitutional Reform Act 2005.

29G Protection of authorised persons

(1) No action lies against an authorised person in respect of what the
person does or omits to do—

(a) 35in the execution of the person’s duty as an authorised person
exercising, by virtue of Tribunal Procedure Rules or
Employment Tribunal Procedure Rules, functions of a
tribunal, and

(b) in relation to a matter within the person’s jurisdiction.

(2) 40An action lies against an authorised person in respect of what the
person does or omits to do—

(a) in the purported execution of the person’s duty as an
authorised person exercising, by virtue of Tribunal
Procedure Rules or Employment Tribunal Procedure Rules,
functions of a tribunal, but

(b) 5in relation to a matter not within the person’s jurisdiction,

if, but only if, it is proved that the person acted in bad faith.

(3) If an action is brought in a court in Scotland in circumstances in
which subsection (1) or (2) provides that no action lies, the court in
which the action is brought—

(a) 10may, on the application of the defender, dismiss the action,
and

(b) if it does so, may find the person bringing the action liable in
expenses.

(4) If an action is brought in any other court in circumstances in which
15subsection (1) or (2) provides that no action lies, the court in which
the action is brought—

(a) may, on the application of the defendant, strike out the
proceedings in the action, and

(b) if it does so, may if it thinks fit order the person bringing the
20action to pay costs.

29H Costs or expenses in legal proceedings: authorised persons

(1) A court may not order an authorised person to pay costs in any
proceedings in respect of what the person does or omits to do in the
execution (or purported execution) of the person’s duty as an
25authorised person exercising, by virtue of Tribunal Procedure Rules
or Employment Tribunal Procedure Rules, a function of a tribunal.

(2) But subsection (1) does not apply in relation to any proceedings in
which an authorised person—

(a) is being tried for an offence or is appealing against a
30conviction, or

(b) is proved to have acted in bad faith in respect of the matters
giving rise to the proceedings.

(3) A court which is prevented by subsection (1) from ordering an authorised
person to pay costs in any proceedings may instead order the Lord
35Chancellor to make a payment in respect of the costs of a person in the
proceedings.

(4) The Lord Chancellor may, after consulting the Senior President of
Tribunals, make regulations specifying—

(a) circumstances in which a court must or must not exercise the
40power conferred on it by subsection (3), and

(b) how the amount of any payment ordered under subsection
(3) is to be determined.

(5) The power to make regulations under subsection (4) includes power
to make—

(a) 45any supplementary, incidental or consequential provision,
and

(b) any transitory, transitional or saving provision,

which the Lord Chancellor considers necessary or expedient.

(6) The Senior President of Tribunals may delegate the Senior President
of Tribunals’ functions under subsection (4) to a person who is a
judicial office holder (as defined in section 109(4) of the
Constitutional Reform Act 2005).

(7) 5Subsections (3) to (5) of section 8 apply to a delegation under
subsection (6) of this section as they apply to a delegation under
subsection (1) of that section.

(8) In the application of this section to Scotland—

(a) references to a court ordering an authorised person to pay
10costs are to be read as references to a court finding an
authorised person liable in expenses, and

(b) the second reference to costs in subsection (3) is to be read as
a reference to expenses.

29I Indemnification of authorised persons

(1) 15“Indemnifiable amounts”, in relation to an authorised person,
means—

(a) costs which the person reasonably incurs in or in connection
with proceedings in respect of anything done or omitted to be
done in the exercise (or purported exercise) of the person’s
20duty as an authorised person,

(b) costs which the person reasonably incurs in taking steps to
dispute a claim which might be made in such proceedings,

(c) damages awarded against the person or costs ordered to be
paid by the person in such proceedings, or

(d) 25sums payable by the person in connection with a reasonable
settlement of such proceedings or such a claim.

(2) The Lord Chancellor must indemnify an authorised person in respect of
indemnifiable amounts if, in respect of the matters giving rise to the
proceedings or claim, the person acted reasonably and in good faith.

(3) 30The Lord Chancellor may indemnify an authorised person in respect of other
indemnifiable amounts unless it is proved, in respect of the matters giving
rise to the proceedings or claim, that the person acted in bad faith.

(4) Any question whether, or to what extent, an authorised person is to
be indemnified under this section is to be determined by the Lord
35Chancellor.

(5) The Lord Chancellor may, if an authorised person claiming to be
indemnified so requests, make a determination for the purposes of
this section with respect to—

(a) costs such as are mentioned in subsection (1)(a) or (b), or

(b) 40sums such as are mentioned in subsection (1)(d),

before the costs are incurred or the settlement in connection with
which the sums are payable is made.

(6) But a determination under subsection (5) before costs are incurred—

(a) is subject to such limitations (if any) as the Lord Chancellor
45thinks proper and to the subsequent determination of the
costs reasonably incurred, and