Crime and Courts Bill (HL Bill 49)
SCHEDULE 11 continued PART 1 continued
Contents page 90-99 100-109 110-116 120-128 130-139 140-149 150-167 168-169 170-179 180-189 190-199 200-209 210-219 220-229 230-239 240-249 250-259 260-269 270-275 Last page
Crime and Courts BillPage 190
187
In paragraph 29(6) (magistrates’ court’s power to determine date on which
order ceased to have effect because the parties were living together) for “a
magistrates’ court” substitute “the family court”.
188
In paragraph 30 (variation, revocation, suspension and revival of orders for
5periodical payments) in each of sub-paragraphs (1) and (2) for “a
magistrates’ court” substitute “the family court”.
189
In paragraph 31 (power to order lump sum on variation) in each of sub-
paragraphs (1) and (2) for “a magistrates’ court” substitute “the family
court”.
190
10In paragraph 35(1) (powers exercisable on varying an order) for “59(3)(a) to
(d) of the Magistrates’ Courts Act 1980 (c. 43)1980 (c. 43)” substitute “1(4) and (4A) of
the Maintenance Enforcement Act 1991”.
191 Omit paragraph 36 (variation by justices’ clerk).
192 In paragraph 37 (exercise of powers)—
(a)
15in sub-paragraph (1) for “59(3)(a) to (d) of the 1980” substitute “1(4)
and (4A) of the 1991”, and
(b) omit sub-paragraph (2).
193 In paragraph 38 (further provision about exercise of powers)—
(a) in sub-paragraph (1)—
(i) 20for “59(4) of the 1980” substitute “1(6) of the 1991”,
(ii) for “paragraphs 35 and 36(4)” substitute “paragraph 35”, and
(iii) for “59” substitute “1 of the 1991 Act”, and
(b) in sub-paragraph (2)—
(i) omit “, or of a justices’ clerk,”, and
(ii)
25for the words from “which” to the end substitute “unless, at
the time when the order was made, the person required to
make the payments was ordinarily resident in England and
Wales.”
194
In paragraph 39 (who may make application) for “, 31 or 36” substitute “or
3031”.
195
In paragraph 40(1) (application by child for revival of periodical payments
order) in the words before paragraph (a), for “a magistrates’ court”
substitute “the family court”.
196
Omit paragraphs 41 and 42 (variation by, and other powers of, a
35magistrates’ court).
197
(1)
Paragraph 44 (orders for repayment in certain cases of sums paid after
cessation of order by reason of formation of subsequent civil partnership or
marriage) is amended as follows.
(2)
In sub-paragraph (4) (court’s power to order repayment or partial
40repayment, or to dismiss application) for “the court” substitute “the family
court”.
(3)
In sub-paragraph (6) (application may be made in enforcement proceedings,
or to county court)—
(a) after “may” insert “(but need not)”,
(b) 45omit “in the High Court or a county court”, and
Crime and Courts BillPage 191
(c)
omit the words after paragraph (a) (including the “but” at the end of
that paragraph).
(4)
Omit sub-paragraph (7) (no limits on jurisdiction of county court under sub-
paragraph (6)).
(5) 5In sub-paragraph (8) (liability of court officers)—
(a) in paragraph (a)—
(i)
for “the designated officer for a magistrates’ court to whom
any payments under an order made under paragraph 2(1)(a),
or Part 2 or 3, are required to be made” substitute “an officer
10of the family court”, and
(ii)
for “in pursuance of the order” substitute “, in pursuance of
an order under paragraph 2(1)(a), or Part 2 or 3, requiring
payments to be made to the court or an officer of the court,”,
and
(b) 15in paragraph (b)—
(i) for “the order” substitute “an order”, and
(ii)
for “after that date” substitute “, after the date on which that
order ceased to have effect because of the formation of a
subsequent civil partnership or marriage by the person
20entitled to payments under it,”.
198
In paragraph 46 (application of certain provisions of the Domestic
Proceedings and Magistrates’ Court Act 1978)—
(a)
in paragraph (a) (powers of the High Court and a county court in
relation to certain orders) for “a county court” substitute “the family
25court”, and
(b) omit paragraphs (b) and (c) (appeals and constitution of courts).
199 (1) Paragraph 47 (jurisdiction and procedure) is amended as follows.
(2)
Omit sub-paragraph (1) (limits on powers of magistrates’ courts to deal with
applications for orders under Schedule 6).
(3)
30In sub-paragraph (1A) (jurisdiction of magistrates’ courts where jurisdiction
to be determined by reference to the Maintenance Regulation etc) for “a
magistrates’ court” substitute “the family court”.
(4)
In sub-paragraph (2) (jurisdiction of magistrates’ court exercisable
notwithstanding that a party is not domiciled in England and Wales) for “a
35magistrates’ court” substitute “the family court”.
200
For the Schedule title substitute “Financial relief: provision corresponding to
provision made by the Domestic Proceedings and Magistrates’ Courts Act
1978”.
201
In Schedule 7, in the definition of “the court” in paragraph 19 (in Schedule 7
40“the court” includes certain county courts) for the words after “High Court”
substitute “or the family court”.
Childcare Act 2006 (c. 21)Childcare Act 2006 (c. 21)
202 The Childcare Act 2006 is amended as follows.
203 In section 72 (protection of children in an emergency)—
Crime and Courts BillPage 192
(a)
in subsection (1) (application to justice of the peace for emergency
order) for “a justice of the peace” substitute “the family court”, and
(b)
in subsection (2) (grounds for granting application for emergency
order) for “the justice”, in both places, substitute “the court”.
204 5In section 79 (power of constable to assist in exercise of powers of entry)—
(a)
omit subsection (4) (which applies Schedule 11 to the Children Act
1989 to proceedings under section 79), and
(b)
in subsection (5) (meaning of “the court”) for the words after “High
Court” substitute “or the family court”.
205 10In section 98F (power of constable to assist in exercise of powers of entry)—
(a)
omit subsection (5) (which applies Schedule 11 to the Children Act
1989 to proceedings under section 98F), and
(b) for subsection (6) (meaning of “the court”) substitute—
“(6)
In this section “court” means the High Court or the family
15court.”
Human Fertilisation and Embryology Act 2008 (c. 22)Human Fertilisation and Embryology Act 2008 (c. 22)
206
In section 54(9)(a) of the Human Fertilisation and Embryology Act 2008
(parental orders: application of the Children Act 1989) for the words after
“England and Wales” substitute “—
(i)
20the court” means the High Court or the family court,
and
(ii)
proceedings on the application are to be “family
proceedings” for the purposes of the Children Act
1989,”
25Children and Families (Wales) Measure 2010 (nawm 1)
207 The Children and Families (Wales) Measure 2010 is amended as follows.
208 In section 34 (protection of children in an emergency)—
(a)
in subsection (1) (application to justice of the peace for emergency
order) for “a justice of the peace” substitute “the family court”, and
(b)
30In subsection (2) (grounds for granting application for emergency
order) for “the justice”, in both places, substitute “the court”.
209 In section 43 (power of constable to assist in exercise of powers of entry)—
(a)
omit subsection (4) (which applies Schedule 11 to the Children Act
1989 to proceedings under section 43), and
(b)
35in subsection (5) (meaning of “the court”) for the words after “High
Court” substitute “or the family court”.
Crime and Courts BillPage 193
Part 2 Repeals and revocations in consequence of Part 1 of this Schedule
210
The provisions specified in the table are repealed or revoked to the extent
shown.
| Reference | 5Extent of repeal or revocation |
|---|---|
| Family Law Reform Act 1969 (c. 46) |
Section 2(2). |
| Inheritance (Provision for Family and Dependants) Act 1975 (c. 63) |
Section 26(1). |
| Domestic Proceedings and Magistrates’ Courts Act 1978 (c. 22) |
In Schedule 2, paragraph 9. |
| Magistrates’ Courts Act 1980 (c. 43) |
In Schedule 7, paragraphs 105, 109, 163 and 164. |
| Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) |
10In Schedule 6, paragraphs 21 and 25. |
| Matrimonial and Family Proceedings Act 1984 (c. 42) |
In Schedule 1, paragraphs 16 and 26. |
| Family Law Act 1986 (c. 55) | In Schedule 1, paragraph 24. |
| Family Law Reform Act 1987 (c. 42) |
15In Schedule 2, paragraphs 13, 45, 50, 70 and 89(2). |
| Children Act 1989 (c. 41) | In Schedule 13, paragraph 42. |
| Courts and Legal Services Act 1990 (c. 41) |
Section 74(7). |
| In Schedule 16, paragraph 23. | |
| Maintenance Enforcement Act 1991 (c. 17) |
20In Schedule 1, paragraphs 3, 13, 14, 18 and 21. |
| In Schedule 2, paragraphs 3 and 10. | |
| Child Support Act 1991 (c. 48) | Section 45(3) to (5). |
| Maintenance Orders (Reciprocal Enforcement) Act 1992 (c. 56) |
In Schedule 1, paragraphs 2(7), 7, 9 and 15. |
| Child Support Act 1991 (Consequential Amendments) Order 1994 (S.I. 1994/731) |
Article 4. 25 |
| Access to Justice Act 1999 (c. 22) | In Schedule 13, paragraphs 73(1) to (3), 79 and 80. |
| Child Support, Pensions and Social Security Act 2000 (c. 19) |
30Section 83(4). |
| In Schedule 8, paragraph 10. | |
| Adoption and Children Act 2002 (c. 38) |
Section 100. |
| In Schedule 3, paragraph 75. |
Crime and Courts BillPage 194
| Reference | Extent of repeal or revocation |
|---|---|
| Courts Act 2003 (c. 39) | In Schedule 8, paragraphs 69, 85, 88 to 90, 92(2), 151 to 153, 154(a), 155(2)(a), 157, 158(a), 159 to 163, 169, 170, 193, 194, 195(2), 196(2), 268, 269, 5336, 338 and 412. |
| Civil Partnership Act 2004 (c. 33) |
In Schedule 27, paragraphs 91 to 94 and 96. |
| Constitutional Reform Act 2005 (c. 4) |
In Schedule 4, paragraphs 171 to 174, 205, 206, 210, 253 and 254. |
| Courts Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/886) |
In the Schedule, paragraph 57. 10 |
| Civil Partnership (Family Proceedings and Housing Consequential Amendments) Order 2005 (S.I. 2005/3336) |
Article 3. 15 |
| Lord Chancellor (Transfer of Functions and Supplementary Provisions) (No 2) Order 2006 (S.I. 2006/ 1016) |
In Schedule 1, paragraphs 6 and 7. 20 |
| Forced Marriage (Civil Protection) Act 2007 (c. 20) |
In section 1, the sections 63N and 63P to be inserted into the Family Law Act 1996. |
| Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2009 (S.I. 2009/871) |
Article 3(2)(b) to (e) and (3). 25 |
| Articles 5 to 8. | |
| Article 9(3). | |
| Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (S.I. 2011/ 1484) |
In Schedule 7, paragraph 8. 30 |
Crime and Courts BillPage 195
Section 18
SCHEDULE 12 Judicial appointments
Part 1 Judges of the Supreme Court: number and selection
5Introductory
1 The Constitutional Reform Act 2005 is amended as follows.
Number of judges to become maximum full-time equivalent number
2 (1) Section 23 (establishment of the Supreme Court) is amended as follows.
(2) In subsection (2) (Supreme Court consists of 12 judges)—
Crime and Courts BillPage 196
(a)
for “12 judges appointed” substitute “the persons appointed as its
judges”, and
(b)
after “by letters patent” insert “, but no appointment may cause the
full-time equivalent number of judges of the Court at any time to be
5more than 12”.
(3)
In subsection (3) (power to increase number of members of the Court) before
“number” insert “maximum full-time equivalent”.
(4)
In subsection (7) (Court is duly constituted despite vacancy in membership
or presiding offices) omit “among the judges of the Court or”.
(5) 10After that subsection insert—
“(8)
For the purposes of this section, the full-time equivalent number of
judges of the Court is to be calculated by taking the number of full-
time judges and adding, for each judge who is not a full-time judge,
such fraction as is reasonable.”
3
(1)
15Section 26 (selection of members of the Supreme Court) is amended as
follows.
(2)
In subsection (5) (Lord Chancellor to convene selection commission to fill
any vacancy among the members, or in the presiding offices, of the Court)
for “one of the offices mentioned in subsection (1),” substitute “the office of
20President of the Court or in the office of Deputy President of the Court,”.
(3) After subsection (5) insert—
“(5A) If—
(a)
the full-time equivalent number of judges of the Court is less
than the maximum specified in section 23(2), or it appears to
25the Lord Chancellor that the full-time equivalent number of
judges of the Court will soon be less than that maximum, and
(b)
the Lord Chancellor, or the senior judge of the Court, after
consulting the other considers it desirable that a
recommendation be made for an appointment to the office of
30judge of the Court,
the Lord Chancellor must convene a selection commission for the
selection of a person to be recommended.
(5B) In subsection (5A)(b) “the senior judge of the Court” means—
(a) the President of the Court, or
(b) 35if there is no President, the Deputy President, or
(c)
if there is no President and no Deputy President, the senior
ordinary judge.”
Selection of persons to be recommended for appointment to the Court
4 (1) In section 27 (selection process) after subsection (1) insert—
“(1A)
40The commission must have an odd number of members not less than
five.
(1B) The members of the commission must include—
(a) at least one who is non-legally-qualified,
(b) at least one judge of the Court,
Crime and Courts BillPage 197
(c)
at least one member of the Judicial Appointments
Commission,
(d)
at least one member of the Judicial Appointments Board for
Scotland, and
(e)
5at least one member of the Northern Ireland Judicial
Appointments Commission,
and more than one of the requirements may be met by the same
person’s membership of the commission.
(1C)
If the commission is convened for the selection of a person to be
10recommended for appointment as President of the Court—
(a) its members may not include the President of the Court,
(b) its members may include the Lord Chancellor,
(c)
it is to be chaired by one of its non-legally-qualified members,
and
(d) 15it may not be chaired by the Lord Chancellor.
(1D)
If the commission is convened for the selection of a person to be
recommended for appointment as Deputy President of the Court, its
members may not include the Deputy President of the Court.”
(2) At the end of that section insert—
“(11)
20For the purposes of this section a person is non-legally-qualified if
the person—
(a)
does not hold, and has never held, any of the offices listed in
Schedule 1 to the House of Commons Disqualification Act
1975 (judicial offices disqualifying for membership of the
25House of Commons), and
(b)
is not practising or employed as a lawyer, and never has
practised or been employed as a lawyer.”
5 After section 27 insert—
“27A Regulations about selection process
(1)
30The Lord Chancellor must by regulations made with the agreement
of the senior judge of the Supreme Court—
(a)
make further provision about membership of selection
commissions convened under section 26,
(b)
make further provision about the process that is to be applied
35in any case where a selection commission is required to be
convened under section 26, and
(c)
secure that, in every such case, there will come a point in the
process when a selection has to be accepted, either
unconditionally or subject only to matters such as the
40selected person’s willingness and availability, by or on behalf
of the Lord Chancellor.
(2) The regulations may in particular—
(a)
provide for process additional to the selection process
applied by a selection commission under section 27(1),
45including post-acceptance process;
(b)
make provision as to things that are, or as to things that are
not, to be done by a selection commission—
Crime and Courts BillPage 198
(i)
as part of the selection process applied by it under
section 27(1), or
(ii) in determining what that process is to be;
(c)
provide for the Lord Chancellor to be entitled to require a
5selection commission to reconsider a selection under section
27(1) or any subsequent selection;
(d)
provide for the Lord Chancellor to be entitled, in cases where
the Lord Chancellor is not a member of the selection
commission, to reject a selection under section 27(1) or any
10subsequent selection;
(e) give other functions to the Lord Chancellor;
(f)
provide for particular action to be taken by a selection
commission after it has complied with section 27;
(g) provide for the dissolution of a selection commission;
(h)
15provide for a person to cease to be a member of a selection
commission where a requirement about the commission’s
members ceases to be met by the person’s membership of the
commission;
(i)
provide for a person to become a member of a selection
20commission already convened where another person ceases
to be a member of the commission or where a requirement
about the commission’s members ceases to be met by another
person’s membership of the commission;
(j)
provide for payment to a member of a selection commission
25of amounts by way of allowances or expenses;
(k)
make provision as to what amounts to practice or
employment as a lawyer for the purposes of section 27(11)(b).
(3)
Before making regulations under this section the Lord Chancellor
must consult—
(a) 30the First Minister in Scotland,
(b) the Northern Ireland Judicial Appointments Commission,
(c) the First Minister for Wales,
(d) the Lord President of the Court of Session,
(e) the Lord Chief Justice of Northern Ireland, and
(f) 35the Lord Chief Justice of England and Wales.
(4) Regulations under this section—
(a) may make different provision for different purposes;
(b) may make transitory, transitional or saving provision.
(5)
In this section “the senior judge”, in relation to the Court, has the
40meaning given by section 26(5B).”
Lord Chancellor’s guidance about selection process: procedure
6 After that section 27A insert—
“27B Selection guidance: supplementary
(1) Before issuing any selection guidance the Lord Chancellor must—
(a) 45consult the senior judge of the Supreme Court;
Crime and Courts BillPage 199
(b)
after doing so, lay a draft of the proposed guidance before
each House of Parliament.
(2)
If the draft is approved by a resolution of each House of Parliament
within the 40-day period the Lord Chancellor must issue the
5guidance in the form of the draft.
(3)
In any other case the Lord Chancellor must take no further steps in
relation to the proposed guidance.
(4)
Subsection (3) does not prevent a new draft of the proposed
guidance from being laid before each House of Parliament after
10consultation with the senior judge of the Court.
(5)
Selection guidance comes into force on such date as the Lord
Chancellor may appoint by order.
(6)
Where selection guidance is in force, the Lord Chancellor may
revoke the guidance only by—
(a)
15new selection guidance issued in accordance with the
previous provisions of this section, or
(b) an order made after consulting the senior judge of the Court.
(7) In this section—
-
“40-day period” in relation to the draft of any proposed
20selection guidance means—(a)if the draft is laid before one House on a day later than
the day on which it is laid before the other House, the
period of 40 days beginning with the later day, and(b)in any other case, the period of 40 days beginning
25with the day on which the draft is laid before each
House,no account being taken of any period during which
Parliament is dissolved or prorogued or during which both
Houses are adjourned for more than 4 days; -
30“the senior judge”, in relation to the Court, has the meaning
given by section 26(5B); -
“selection guidance” means guidance mentioned in section
27(9).”
Consequential amendments, repeals and revocations
7 (1) 35Omit—
(a)
section 27(2) and (3) and Parts 1 and 2 of Schedule 8 (selection
commissions), and
(b)
sections 28 to 31 and 60(5) (detailed provision about selection
process).
(2)
40In section 26(3)(a) (person whose name is notified under section 29 must be
recommended for appointment) for “whose name is notified to him under
section 29” substitute “who is selected as a result of the convening of a
selection commission under this section”.
(3)
For section 26(4) (person recommended for appointment as President or
45Deputy President must also be recommended for appointment as a judge if