Courts and Tribunals (Judiciary and Functions of Staff) Bill [LORDS]

Explanatory Notes

Commentary on provisions of Bill

Clause 1: Deployment of judges

23. Sections 87(1A) of the Constitutional Reform Act 2005 provides that a person is eligible to sit as a Deputy High Court Judge only if selected for the pool for such requests following a selection exercise conducted by the Judicial Appointments Commission ("JAC"). However, section 94AA of the Constitutional Reform Act 2005 creates a limited exception to this. It provides the Lord Chief Justice, after consultation with the Lord Chancellor, with a power to appoint a person as a temporary deputy judge of the High Court in urgent cases where there are no other reasonable steps which can be taken, without a JAC process. Previously the legislation allowed this person to be deployed only to the High Court or Crown Court; clause 1(1) expands this to permit the person to be deployed to any court or tribunal in which a deputy judge of the High Court appointed under section 9(4) of the Senior Courts Act 1981 is able to sit, for example in the family court, the county court or the FtT or UT.

24. Section 6 of the TCEA 2007 sets out a list of judges who are judges of both the FtT and UT. Clause 1(2) adds Recorders to this list, which will enable Recorders to hear cases in the UT, in addition to the FtT where they can already sit. It also adds the Presidents of the Employment Tribunals (England and Wales, and Scotland), the Vice President of Employment Tribunals (Scotland) and Regional Employment Judges to the list, enabling them to hear cases in the FtT and the UT. The appointment of leadership employment judges to the FtT and UT has a secondary impact of enabling the Senior President of Tribunals to delegate some of his judicial functions to the leadership employment judges, as he can already delegate certain judicial functions to members of a panel of employment judges or employment appeal judges.

25. Clause 1(4) removes the current restriction on a person presiding over more than one chamber of the FtT or of the UT. Allowing for a Chamber President to be appointed to more than one Chamber in the same Tribunal will meet the aim of flexibly using the existing (and future) complement of Chamber Presidents, without having to recruit and appoint a new Chamber President immediately there is a vacancy.

26. Clause 1(5) adds the President of Employment Tribunals (England and Wales) and the President of the Employment Tribunals (Scotland) to the list of judges who may be nominated to be a judge to the Employment Appeal Tribunal. This mirrors similar provisions in the TCEA 2007 which provide for FtT Chamber Presidents to be members of the UT.

27. Section 93 of the Arbitration Act 1996 sets out the judges who may accept appointment as a judge-arbitrator in England and Wales. This is currently limited to judges of the Commercial Court or judges conducting official referees’ business (now judges sitting in the Technology & Construction Court). Clause 1(6) and (7) expand this to allow any High Court judge or other judge eligible to sit in the High Court to be eligible to accept appointment as a judge-arbitrator.

Clause 2: Alteration of judicial titles

28. Clause 2(1) and (2) change the title of the office of "Chief Bankruptcy Registrar" to "Chief Insolvency and Companies Court Judge". This reflects a change in name of the other judges of this court and of the court itself. Clause 2(3) enables the judicial titles of other senior masters and district judges of the Senior Courts to be changed in future by secondary legislation should it be necessary to do so.

Clause 3: Authorised court and tribunal staff: legal advice and judicial functions

29. Clause 3(1) gives effect to the Schedule.

30. Clause 3(2)-(4) give the Secretary of State or Lord Chancellor a narrow power to, by regulations, make consequential, transitional, transitory or saving provision in relation to the authorised staff provisions in the Schedule. Such regulations will be subject to the negative Parliamentary procedure.

31. The effect of this provision is to ensure effective and orderly implementation of the provisions of the Schedule and to avoid any legislative inconsistencies in secondary legislation. The power will primarily be used to remove references to "justices’ clerk" in secondary legislation, which is necessary because the Bill abolishes the justices’ clerk role.

32. The power in Clause 3(2)-(4) will not be used to amend primary legislation. The consequential amendments to primary legislation have already been identified and provision for them is made in the Schedule to the Bill.

Clause 4: Short title, commencement and extent

33. Clause 4(1) confirms the short title of the Bill.

34. Clause 4(2)-(5) set out the commencement provisions for the Bill. Clause 4 (short title, commencement and extent) will come into force on the day on which the Bill is passed. Clause 1 (deployment of judges) and Clause 2 (alteration of judicial titles) will come into force at the end of the period of two months beginning with the day on which the Bill is passed. Clause 3 and the Schedule (functions of staff) will come into force on such day as the Secretary of State may by regulations appoint. Subsection (4) allows for regulations to appoint different days for different purposes or areas and to make transitional, transitory or savings provision.

35. Clause 4(6)-(7) also set out the extent of the Bill (see paragraphs 18-22 and Annex A of these Explanatory Notes for further information).

Schedule: Authorised court and tribunal staff: legal advice and judicial functions

36. The Schedule applies to the civil, family, criminal and tribunal jurisdictions and comprises measures on court and tribunal staff authorised to provide legal advice to magistrates and judges of the family court, and measures on court and tribunal staff authorised to exercise judicial functions. Part 1 deals with courts and Part 2 deals with tribunals. The key provisions of the Schedule are set out below. The Schedule also makes minor and consequential amendments to primary legislation to facilitate the above.


Prepared 13th November 2018