Constitutional Reform Bill [HL]

House of Commons

Session 2004 - 05
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
131

298   (1)
Schedule 1 (constitution and procedure of courts boards) is amended as
follows.
      (2)
For paragraph 1 substitute—
“1    (1)
The members of each courts board are to be appointed by the Lord
Chancellor.
5
      (2)
The Lord Chancellor may appoint a member of a description
mentioned in paragraph 2(a) only with the concurrence of the
Lord Chief Justice.”
      (3)
In paragraph 8 (meaning of regulations) after “Lord Chancellor” insert “after
consulting the Lord Chief Justice”.
10
      (4)
After paragraph 8 insert—
“9
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under this Schedule.”
299
In Schedule 7 (High Court writs of execution), in paragraph 12(4)
15
(regulations) for paragraphs (c) and (d) substitute—
“(ba)
the President of the Queen’s Bench Division,
(c)
the President of the Family Division,
(d)
the Chancellor of the High Court, and”.
Extradition Act 2003 (c. 41)
20
300
The Extradition Act 2003 is amended as follows.
301   (1)
Section 67 (the appropriate judge) is amended as follows.
      (2)
In subsection (1)(a) for “by the Lord Chancellor” substitute “by the Lord
Chief Justice of England and Wales after consulting the Lord Chancellor”.
      (3)
After subsection (4) insert—
25
“(5)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under subsection (1)(a).”
302   (1)
Section 139 (the appropriate judge) is amended as follows.
      (2)
In subsection (1)(a) for “by the Lord Chancellor” substitute “by the Lord
30
Chief Justice of England and Wales after consulting the Lord Chancellor”.
      (3)
After subsection (4) insert—
“(5)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under subsection (1)(a).”
35
Criminal Justice Act 2003 (c. 44)
303
The Criminal Justice Act 2003 is amended as follows.
304   (1)
Section 167 (Sentencing Guidelines Council) is amended as follows.
      (2)
In subsection (1)(b)—

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
132

(a)
for “Lord Chancellor” substitute “Lord Chief Justice”;
(b)
for “Lord Chief Justice” substitute “Lord Chancellor”.
      (3)
After subsection (9) insert—
“(10)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
5
exercise his functions under this section.”
305   (1)
Section 168 (Sentencing Guidelines Council: supplementary) is amended as
follows.
      (2)
In subsection (1) for paragraphs (b) and (c) substitute—
“(b)
enabling the Lord Chancellor to remove a judicial member
10
from office, with the concurrence of the Lord Chief Justice, on
the grounds of incapacity or misbehaviour, and
(c)
enabling the Secretary of State to remove a non-judicial
member from office on the grounds of incapacity or
misbehaviour.”
15
      (3)
For subsection (2) substitute—
“(1A)
The following provisions apply to an order under subsection (1)—
(a)
if the order includes provision falling within subsection
(1)(a), the Lord Chancellor must consult the Lord Chief
Justice about that provision before making the order;
20
(b)
if the order includes provision falling within subsection
(1)(b), the order may not be made unless the Lord Chief
Justice agrees to the inclusion of that provision.
(1B)
The Lord Chief Justice may, with the concurrence of the Lord
Chancellor, by order make provision as to the proceedings of the
25
Council.”
      (4)
After subsection (5) insert—
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under subsection (1B).”
30
306   (1)
Section 330 (orders and rules) is amended as follows.
      (2)
In subsection (1)(b) after “Lord Chancellor” insert “or the Lord Chief
Justice”.
      (3)
After subsection (2) insert—
“(2A)
Where a statutory instrument is made by the Lord Chief Justice in the
35
exercise of the power referred to in subsection (1)(b), the Statutory
Instruments Act 1946 applies to the instrument as if it contained an
order made by a Minister of the Crown.”
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004/
1861)
40
307
In regulation 4 of the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004 (President of Employment Tribunals), after

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
133

paragraph (5) insert—
   “(5A)
Where the Lord Chancellor is the appointing office holder, he may
revoke an appointment in accordance with paragraph (5) only
with the concurrence of the Lord Chief Justice.”
Part 2
5
Amendments of or relating to enactments repealed or amended
otherwise than by this Act
Introduction
308   (1)
This Part of this Schedule contains amendments of or relating to enactments
that have already been amended or repealed by provisions of other Acts.
10
      (2)
In each case the amending or repealing provision is specified, in relation to
the enactment referred to, as the “original amending provision”.
      (3)
An amendment contained in any provision of this Part of this Schedule has
effect only until the original amending provision comes fully into force in
relation to the enactment referred to in that provision of this Part of this
15
Schedule.
Promissory Oaths Act 1871 (c. 48)
309   (1)
Section 2 of the Promissory Oaths Act 1871 (persons before whom oaths to
be taken) is amended as follows.
      (2)
In the paragraph beginning “In England” for “Lord High Chancellor of Great
20
Britain” substitute “Lord Chief Justice of England and Wales”.
      (3)
After that paragraph insert—

“The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under the preceding paragraph.”
25
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 51 of Schedule 8 to the Courts Act 2003
(c. 39).
Children and Young Persons Act 1933 (c. 12)
310   (1)
Schedule 2 to the Children and Young Persons Act 1933 (constitution of
30
youth courts) is amended as follows.
      (2)
In paragraph 6—
(a)
in paragraph (a)—
(i)
after “he may” insert “after consulting the Lord Chief
Justice”;
35
(ii)
after “thinks fit” insert “after consulting the Lord Chief
Justice”;
(b)
in paragraph (b)—
(i)
after “may” insert “, after consulting the Lord Chief Justice,”;
(ii)
after “thinks fit” insert “, after consulting the Lord Chief
40
Justice,”.

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
134

      (3)
In paragraph 14 after “Lord Chancellor may” insert “, after consulting the
Lord Chief Justice,”.
      (4)
In paragraph 15(b)—
(a)
for “by the Lord Chancellor” substitute “by the Lord Chief Justice,
after consulting the Lord Chancellor,”;
5
(b)
for “order of the Lord Chancellor” substitute “order made by the
Lord Chief Justice after consulting the Lord Chancellor”.
      (5)
In paragraph 16 for “consent of the Lord Chancellor,” substitute “consent of
the Lord Chief Justice, given after consulting the Lord Chancellor,”.
      (6)
In paragraph 18—
10
(a)
for “Lord Chancellor” in the first place substitute “Lord Chief
Justice”;
(b)
for “Lord Chancellor” in the second place substitute “Lord Chief
Justice, after consulting the Lord Chancellor”.
      (7)
After paragraph 21 insert—
15
“22
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under this Schedule.”
      (8)
In relation to the enactments referred to in this paragraph, the original
amending provision is Schedule 10 to the Courts Act 2003 (c. 39).
20
Maintenance Orders Act 1950 (c. 37)
311   (1)
In section 25(1) of the Maintenance Orders Act 1950 (power to make rules
about procedure under section 144 of the Magistrates’ Court Act 1980), for
“Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.
      (2)
In relation to the enactment referred to in this paragraph, the original
25
amending provision is paragraph 91(2) of Schedule 8 to the Courts Act 2003.
Courts Act 1971 (c. 23)
312   (1)
In section 27 of the Courts Act 1971, in the definition of “the senior judges”
in subsection (9) for “the Vice-Chancellor and the President of the Family
Division” substitute “the President of the Queen’s Bench Division, the
30
President of the Family Division and the Chancellor of the High Court”.
      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 139(a) of Schedule 8 to the Courts Act
2003.
Restrictive Practices Court Act 1976 (c. 33)
35
313
The Restrictive Practices Court Act 1976 is amended as follows.
314   (1)
In section 1 (the Court), after subsection (3) insert—
“(3A)
The Lord Chancellor may select a person under subsection (3) only
with the concurrence of all of the following—
(a)
the Lord Chief Justice of England and Wales;
40
(b)
the Lord President of the Court of Session;

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
135

(c)
the Lord Chief Justice of Northern Ireland.
(3B)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under this section.
(3C)
The Lord President of the Court of Session may nominate a judge of
5
the Court of Session who is a member of the First or Second Division
of the Inner House of that Court to exercise his functions under this
section.
(3D)
The Lord Chief Justice of Northern Ireland may nominate any of the
following to exercise his functions under this section—
10
(a)
the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002 (c. 26);
(b)
a Lord Justice of Appeal (as defined in section 88 of that Act).”
      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998 (c. 41).
15
315   (1)
Section 2 (judges of the Court) is amended as follows.
      (2)
In subsections (1)(a) and (3) for “Lord Chancellor” substitute “Lord Chief
Justice of England and Wales”.
      (3)
After subsection (4) insert—
“(5)
The functions conferred on the Lord Chief Justice of England and
20
Wales by this section may be exercised only after consulting the Lord
Chancellor.
(6)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under this section.”
25
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
316   (1)
Section 3 (non-judicial members) is amended as follows.
      (2)
After subsection (3) insert—
“(4)
The Lord Chancellor may exercise his functions under subsection
30
(2)(b) only with the concurrence of all of the following—
(a)
the Lord Chief Justice of England and Wales;
(b)
the Lord President of the Court of Session;
(c)
the Lord Chief Justice of Northern Ireland.
(5)
The Lord Chief Justice of England and Wales may nominate a
35
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under this section.
(6)
The Lord President of the Court of Session may nominate a judge of
the Court of Session who is a member of the First or Second Division
of the Inner House of that Court to exercise his functions under this
40
section.
(7)
The Lord Chief Justice of Northern Ireland may nominate any of the
following to exercise his functions under this section—

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
136

(a)
the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002 (c. 26);
(b)
a Lord Justice of Appeal (as defined in section 88 of that Act).”
      (3)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998 (c. 41).
5
317   (1)
Section 4 (provision for additional judges or members) is amended as
follows.
      (2)
In subsection (1), in paragraph (a) after “consultation with” insert “the Lord
Chief Justice of England and Wales,”.
      (3)
After subsection (2) insert—
10
“(3)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
15
318   (1)
Section 6 (administration) is amended as follows.
      (2)
In subsection (5) after “Lord Chancellor may” insert “, after consulting the
Lord Chief Justice of England and Wales,”.
      (3)
After subsection (6) insert—
“(7)
The Lord Chief Justice of England and Wales may nominate a
20
judicial office holder (as defined in section 95(4) of the Constitutional
Reform Act 2005) to exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
319   (1)
In section 9 (procedure), in subsection (1) for “Lord Chancellor” substitute
25
“president of the Court with the concurrence of the Lord Chancellor”.
      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
Magistrates’ Courts Act 1980 (c. 43)
320
The Magistrates’ Courts Act 1980 is amended as follows.
30
321   (1)
Section 67 (family proceedings courts and panels) is amended as follows.
      (2)
In subsection (2)(a) for “by the Lord Chancellor” substitute “by the Lord
Chief Justice, after consulting the Lord Chancellor,”.
      (3)
In subsection (5) for “on the Lord Chancellor” substitute “, exercisable by the
Lord Chancellor with the concurrence of the Lord Chief Justice,”.
35
      (4)
After subsection (8) insert—
“(9)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under subsection (2)(a).”

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
137

      (5)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 49(1) of the Courts Act 2003.
322   (1)
Section 68 (combined family panels) is amended as follows.
      (2)
In subsection (2), after “thinks fit” insert “after consulting the Lord Chief
Justice”.
5
      (3)
After subsection (6) insert—
“(6A)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
10
amending provision is section 49(2) of the Courts Act 2003 (c. 39).
323   (1)
In section 146 (rules relating to youth court panels and composition of youth
court), in subsection (2) for “Lord Chancellor” substitute “Lord Chief
Justice”.
      (2)
After subsection (5) insert—
15
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 95(4) of the Constitutional Reform Act 2005) to
exercise his powers under rules made under this section.”
      (3)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 50(3) of the Courts Act 2003.
20
Supreme Court Act 1981 (c. 54)
324   (1)
Section 130 of the Supreme Court Act 1981 (fees to be taken in Supreme
Court) is amended as follows.
      (2)
In subsection (2)(a) for “President of the Family Division and the Vice-
Chancellor” substitute “President of the Queen’s Bench Division, President
25
of the Family Division and the Chancellor of the High Court”.
      (3)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 263 of Schedule 8 to the Courts Act 2003
(c. 39).
Matrimonial and Family Proceedings Act 1984 (c. 42)
30
325
The Matrimonial and Family Proceedings Act 1984 is amended as follows.
326   (1)
Section 40 (family proceedings rules) is amended as follows.
      (2)
In subsection (1)—
(a)
for “by the Lord Chancellor together with any four or more of the
following persons, namely—” substitute “by a committee known as
35
the Family Proceedings Rule Committee, which is to consist of the
following persons—”;
(b)
before paragraph (a) insert—
“(za)
the Lord Chief Justice,”.