Courts and Tribunals (Judiciary and Functions of Staff) Bill (HL Bill 108)

A

BILL

TO

Make provision about the judiciary and the functions of the staff of courts and
tribunals.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Judiciary

1 Deployment of judges

(1) In section 94AA of the Constitutional Reform Act 2005 (appointments not
subject to section 85: High Court deputy judge), in subsection (2)(a), after
5“Crown Court” insert “or any other court or tribunal to which a deputy judge
of the High Court may be deployed”.

(2) In section 6 of the Tribunals, Courts and Enforcement Act 2007 (certain judges
who are also judges of the First-tier Tribunal and Upper Tribunal), in
subsection (1)—

(a) 10after paragraph (e) insert—

(ea) is a Recorder,”;

(b) omit the “or” at the end of paragraph (h);

(c) after paragraph (i) insert—

(j) is the President of Employment Tribunals (England and
15Wales),

(k) is the President of Employment Tribunals (Scotland),

(l) is the Vice President of Employment Tribunals
(Scotland), or

(m) is a Regional Employment Judge.”

(3) 20Accordingly, in section 6A of that Act (certain judges who are also judges of the
First-tier Tribunal), omit paragraph (b).

(4) In section 7 of the Tribunals, Courts and Enforcement Act 2007 (chambers of
the First-tier Tribunal and Upper Tribunal: jurisdiction and Presidents)—

Courts and Tribunals (Judiciary and Functions of Staff) BillPage 2

(a) for subsection (3) substitute—

(3) A person may at a particular time—

(a) preside over more than one chamber of the First-tier
Tribunal;

(b) 5preside over more than one chamber of the Upper
Tribunal;

(c) preside over—

(i) one or more chambers of the First-tier Tribunal,
and

(ii) 10one or more chambers of the Upper Tribunal.”;

(b) in subsections (6) and (7), for “subsections (2) and (3)” substitute
“subsection (2)”.

(5) In section 22(2A) of the Employment Tribunals Act 1996 (membership of
Employment Appeal Tribunal)—

(a) 15omit the “or” at the end of paragraph (i);

(b) after paragraph (j) insert—

(k) is the President of Employment Tribunals (England and
Wales), or

(l) is the President of Employment Tribunals (Scotland).”

(6) 20In section 93 of the Arbitration Act 1996 (appointment of judges as
arbitrators)—

(a) in subsections (1) and (2), for “A judge of the Commercial Court”
substitute “An eligible High Court judge”;

(b) in subsection (4), for “a judge of the Commercial Court” substitute “an
25eligible High Court judge”;

(c) after subsection (4) insert—

(4A) The Lord Chief Justice may nominate a senior judge (as defined
in section 109(5) of the Constitutional Reform Act 2005) to
exercise functions of the Lord Chief Justice under this section.”;

(d) 30in subsection (5)—

(i) omit the “and” at the end of the definition of “arbitration
agreement”;

(ii) after that definition insert—

  • ““eligible High Court judge” means—

    (a)

    35a puisne judge of the High Court, or

    (b)

    a person acting as a judge of the High
    Court under or by virtue of section 9(1) of
    the Senior Courts Act 1981;”.

(7) In Schedule 2 to the Arbitration Act 1996 (modifications of Part 1 in relation to
40judge-arbitrators), in paragraph 1, for “a judge of the Commercial Court”
substitute “an eligible High Court judge”.

2 Alteration of judicial titles

(1) In section 89 of the Senior Courts Act 1981 (masters and registrars), in
subsection (3C), in the first column of the table, for “Chief Bankruptcy
45Registrar” substitute “Chief Insolvency and Companies Court Judge”.

Courts and Tribunals (Judiciary and Functions of Staff) BillPage 3

(2) In Schedule 14 to the Constitutional Reform Act 2005 (the Judicial
Appointments Commission: relevant offices and enactments), in Part 1
(appointments by Her Majesty), in the first column of table 2, for “Chief
Bankruptcy Registrar” substitute “Chief Insolvency and Companies Court
5Judge”.

(3) In section 64 of the Courts Act 2003 (power to alter judicial titles)—

(a) in subsection (2), at the appropriate places insert the following
entries—

“Chief Chancery Master”;

10“Chief Insolvency and Companies Court Judge”;

“Chief Taxing Master”;

“Senior District Judge of the Family Division”;

“Senior Master of the Queen’s Bench Division”;

(b) in subsection (3), for “91(1)(a)” substitute “91(1)”.

15Functions of staff

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

(1) The Schedule provides for authorised court and tribunal staff—

(a) to provide legal advice to judges of the family court and justices of the
peace, and

(b) 20to exercise judicial functions where procedure rules so provide.

(2) The Secretary of State or Lord Chancellor may, by regulations made by
statutory instrument, make consequential, transitional, transitory or saving
provision in relation to the Schedule.

(3) A statutory instrument containing regulations under this section is subject to
25annulment in pursuance of a resolution of either House of Parliament.

(4) Regulations under this section may make different provision for different
purposes.

Final provisions

4 Short title, commencement and extent

(1) 30This Act may be cited as the Courts and Tribunals (Judiciary and Functions of
Staff) Act 2018.

(2) Sections 1 and 2 come into force at the end of the period of two months
beginning with the day on which this Act is passed.

(3) Section 3 and the Schedule come into force on such day as the Secretary of State
35may by regulations made by statutory instrument appoint.

(4) Regulations under subsection (3) may—

(a) appoint different days for different purposes;

(b) appoint different days for different areas;

(c) make transitional, transitory or saving provision.

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(5) This section comes into force on the day on which this Act is passed.

(6) Any amendment, repeal or revocation made by this Act has the same extent as
the enactment amended, repealed or revoked.

(7) The rest of this Act extends to England and Wales, Scotland and Northern
5Ireland.

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Section 3

SCHEDULE Authorised 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)”.

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

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

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

(1) 5The 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
to be followed—

(a) in magistrates’ courts, and

(b) 10by designated officers for magistrates’ courts.”

Highways Act 1980

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

15Matrimonial 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
assistant to a justices’ clerk,” substitute “person authorised under section
67B(2) of the Courts Act 2003,”.

14 20For section 31O substitute—

31O Function of giving legal advice to judges

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

(a) to give advice to judges of the family court about matters of
law (including procedure and practice) on questions arising
25in 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) to bring to the attention of judges of the family court, at any
time when the person thinks appropriate, any point of law
30(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)
only if the person—

(a) is appointed under section 2(1) of the Courts Act 2003 or
35section 40(1) of the 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.

(3) 40An authorisation under subsection (1)—

(a) may be subject to conditions, and

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

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

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

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

(a) a judicial office holder;

(b) 10a person appointed under section 2(1) of the Courts Act 2003
or section 40(1) of the Tribunals, Courts and Enforcement Act
2007.

(7) A person nominated under subsection (6)(b) to exercise functions of
the Lord Chief Justice is not subject to the direction of any person
15other than—

(a) the Lord Chief Justice, or

(b) a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(8) In this section “judicial office holder” has the meaning given by
20section 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
administrative hearings conducted by justices’ clerks).

25Criminal Justice Act 1991

17 In Schedule 3 to the Criminal Justice Act 1991 (reciprocal enforcement of
certain orders), in paragraph 11(7)(b), for “clerk of” substitute “designated
officer for”.

Criminal Procedure (Scotland) Act 1995

18 30In Schedule 13 (transfer of community payback orders), in paragraph 5(4)(a),
omit “the clerk of”.

Civil Procedure Act 1997

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

35Crime and Disorder Act 1998

20 The Crime and Disorder Act 1998 is amended as follows.

21 In section 49 (powers of magistrates’ courts exercisable by single justice),
omit subsections (2) to (5).

22 In section 50 (early administrative hearings), in subsection (4), for the words
40from the beginning to “such a clerk” substitute “Where the powers of a

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single justice are exercised by a person authorised under section 67B(2) of
the Courts Act 2003, nothing in subsection (3)(b) above authorises the
person”.

23 In Schedule 3 (procedure where persons are sent for trial under section 51),
5in paragraph 6(9)(a), omit “the clerk of”.

Licensing Act 2003

24 In section 131 of the Licensing Act 2003 (court’s duty to notify licensing
authority of convictions), in subsection (5)(a), for “clerk of” substitute
“designated officer for”.

10Courts Act 2003

25 The Courts Act 2003 is amended as follows.

26 For sections 27 to 29 substitute—

“Legal advice
28 Function of giving legal advice to justices of the peace

(1) 15The Lord Chief Justice may authorise a person—

(a) to 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
20on them, and

(b) to 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) 25For the purposes of subsection (1), the functions of justices of the
peace 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) 30is appointed under section 2(1) of this Act or section 40(1) of
the 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) 35An authorisation under subsection (1)—

(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
40exercise the Lord Chief Justice’s functions under the preceding
provisions of this section—

(a) a judicial office holder;

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(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) A person nominated under subsection (5)(b) to exercise functions of
5the Lord Chief Justice is not subject to the direction of any person
other than—

(a) the Lord Chief Justice, or

(b) a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

(7) 10In this section “judicial office holder” has the meaning given by
section 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) 15Apart 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
exercise the Lord Chief Justice’s functions under subsection (1)—

(a) 20a 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) to exercise functions of
the Lord Chief Justice is not subject to the direction of any person
25other than—

(a) the Lord Chief Justice, or

(b) a judicial office holder nominated by the Lord Chief Justice,

when exercising the functions.

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

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

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

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

(2) 35Omit subsection (2).

(3) In 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’
40clerk or assistant clerk” substitute “from ordering a justice of the peace”.

(5) In consequence of the preceding provisions of this paragraph, the Justices
and Justices’ Clerks (Costs) Regulations 2001 (S.I. 2001/1296) are revoked.

30 (1) Section 35 (indemnity) is amended as follows.