Constitutional Reform Bill [HL]

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Session 2004 - 05
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Constitutional Reform Bill [HL]

54
Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 1 — The process

Schedules
Schedule 1
Section 10

Powers to make rules
Part 1
The process
5
Interpretation
1
In this Part “designated rules” means rules under another Act which are, by
virtue of provision in that Act, to be made in accordance with this Part.

The process
10
2     (1)
It is for the Lord Chief Justice, or a judicial office holder nominated by the
Lord Chief Justice with the agreement of the Minister, to make designated
rules.
      (2)
The Lord Chief Justice may nominate a judicial office holder in accordance
with sub-paragraph (1)—
15
(a)
to make designated rules generally, or
(b)
to make designated rules under a particular enactment.
      (3)
In this Part—
(a)
“judicial office holder” has the same meaning as in section 95(4);
(b)
references to the Lord Chief Justice’s nominee, in relation to
20
designated rules, means a judicial office holder nominated by the
Lord Chief Justice under sub-paragraph (1) to make those rules.
3     (1)
The Lord Chief Justice, or his nominee, may make designated rules only
with the agreement of the Minister.
      (2)
If the Minister does not agree designated rules made by the Lord Chief
25
Justice, or by his nominee, the Minister must give that person written
reasons why he does not agree the rules.
4     (1)
Designated rules made by the Lord Chief Justice, or by his nominee, and
agreed by the Minister—
(a)
come into force on such day as the Minister directs, and
30
(b)
are to be contained in a statutory instrument to which the Statutory
Instruments Act 1946 (c. 36) applies as if the instrument contained
rules made by a Minister of the Crown.

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
55

      (2)
A statutory instrument containing designated rules is subject to annulment
in pursuance of a resolution of either House of Parliament.
5     (1)
This paragraph applies if the Minister gives the Lord Chief Justice, or his
nominee, written notice that he thinks it is expedient for designated rules to
include provision that would achieve a purpose specified in the notice.
5
      (2)
The Lord Chief Justice, or his nominee, must make such designated rules as
he considers necessary to achieve the specified purpose.
      (3)
Those rules must be—
(a)
made within a reasonable period after the Minister gives notice
under sub-paragraph (1);
10
(b)
made in accordance with the provisions of this Part.
Part 2
Rule-making powers subject to the process in Part 1
Trustee Act 1925 (c. 19)
6
In section 54 of the Trustee Act 1925 (jurisdiction in regard to mental
15
patients), for the paragraph after subsection (2)(d) substitute—
“(2A)
Rules may be made in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2005 with respect to the exercise of the
jurisdiction referred to in subsection (2).”
Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)
20
7
In section 2 of the Administration of Justice (Miscellaneous Provisions) Act
1933 (procedure for indictment of offenders), in subsection (6A)(a) for “by
the Lord Chancellor” substitute “in accordance with Part 1 of Schedule 1 to
the Constitutional Reform Act 2005”.
Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
25
8     (1)
Section 5 of the Reserve and Auxiliary Forces (Protection of Civilian
Interests) Act 1951 (appropriate courts and procedure) is amended as
follows.
      (2)
In subsection (2) for “The Lord Chancellor may also make rules” substitute
“Rules may be made in accordance with Part 1 of Schedule 2 to the
30
Constitutional Reform Act 2005”.
      (3)
In subsections (3) to (5) for “Rules so made” substitute “Rules under
subsection (2)”.
Courts-Martial (Appeals) Act 1968 (c. 20)
9     (1)
Section 49 of the Courts-Martial (Appeals) Act 1968 (rules of court) is
35
amended as follows.
      (2)
In subsection (1) for “by the Lord Chief Justice with the approval of the Lord
Chancellor” substitute “in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2005”.

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
56

      (3)
In subsection (2) for “Lord Chief Justice” substitute “person making the
rules”.
      (4)
Omit subsections (3) and (4).
Adoption Act 1976 (c. 36)
10
In section 66 of the Adoption Act 1976 (rules of procedure), in subsection (1)
5
for “by the Lord Chancellor” substitute “in accordance with Part 1 of
Schedule 2 to the Constitutional Reform Act 2005”.
Supreme Court Act 1981 (c. 54)
11
The Supreme Court Act 1981 is amended as follows.
12    (1)
Section 127 (probate rules) is amended as follows.
10
      (2)
In subsection (1) for the words from the beginning to “for regulating”
substitute “Rules of court (in this Part referred to as “probate rules”) may be
made in accordance with Part 1 of Schedule 1 to the Constitutional Reform
Act 2005 for regulating”.
      (3)
Omit subsection (3).
15
13    (1)
Section 136 (production of documents filed in, or in custody of, Supreme
Court) is amended as follows.
      (2)
In subsection (1) for the words from the beginning to “make rules” substitute
“Rules may be made in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2005”.
20
      (3)
In subsection (2)(b) for “Lord Chancellor” substitute “person making the
rules”.
      (4)
Omit subsection (3).
Mental Health Act 1983 (c. 20)
14
The Mental Health Act 1983 is amended as follows.
25
15
In section 65 (Mental Health Review Tribunals), in subsection (3) omit “by
the Lord Chancellor”.
16
In section 108 (general provisions as to rules under Part 7), after subsection
(1) (as substituted by paragraph 129(2) of Schedule 4) insert—
“(1A)
Rules under any other provision of this Part of this Act are to be
30
made in accordance with Part 1 of Schedule 1 to the Constitutional
Reform Act 2005”.
17
In section 143 (general provisions as to regulations, orders and rules), after
subsection (3) insert—
“(4)
This section does not apply to rules which are, by virtue of section
35
108 of this Act, to be made in accordance with Part 1 of Schedule 1 to
the Constitutional Reform Act 2005.”

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
57

County Courts Act 1984 (c. 28)
18    (1)
Section 38 of the County Courts Act (remedies available in county courts) is
amended as follows.
      (2)
Omit subsection (4)(c).
      (3)
After subsection (4) insert—
5
“(4A)
If regulations are made under subsection (3), rules may be made in
accordance with Part 1 of Schedule 1 to the Constitutional Reform
Act 2005 about procedure relevant to the matters prescribed in the
regulations.”
Matrimonial and Family Proceedings Act 1984 (c. 42)
10
19
In section 40 of the Matrimonial and Family Proceedings Act 1984 (family
proceedings rules), in the second paragraph of subsection (2)—
(a)
in paragraph (a) omit “by the Lord Chancellor”;
(b)
in paragraph (b) omit “by the President of the Family Division with
the concurrence of the Lord Chancellor”.
15
Coroners Act 1988 (c. 13)
20
The Coroners Act 1988 is amended as follows.
21
In section 11 (proceedings at inquest), for subsection (5)(c) substitute—
“(c)
shall be in such form as may be prescribed in rules made in
accordance with Part 1 of Schedule 1 to the Constitutional
20
Reform Act 2005.”
22    (1)
Section 32 (power to make rules) is amended as follows.
      (2)
In subsection (1) for “The Lord Chancellor may, with the concurrence of the
Secretary of State, make rules” substitute “Rules may be made in accordance
with Part 1 of Schedule 1 to the Constitutional Reform Act 2005”.
25
      (3)
In subsection (3) for “of the Lord Chancellor under this section to make
rules” substitute “to make rules under this section”.
      (4)
Omit subsection (4).
Family Law Act 1996 (c. 27)
23
The Family Law Act 1996 is amended as follows.
30
24    (1)
For the title to section 12 substitute “Rules about procedure”.
      (2)
In subsection (1) for “The Lord Chancellor may make rules” substitute
“Rules may be made in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2005”.
      (3)
In subsection (2) for “The Lord Chancellor may make rules” substitute
35
“Rules may be made in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2005”.
25
In section 65 (rules, regulations and orders), in subsection (5) after “does not
apply” insert “to rules made under section 12 or”.

Constitutional Reform Bill [HL]
Schedule 2 — Powers to give directions
Part 1 — The process
58

26
The power to amend or repeal enactments that is referred to in section
109(5)(b) of the Courts Act 2003 (c. 39) may be exercised in relation to
sections 12 and 65 of the Family Law Act 1996 (c. 27) as amended by
paragraphs 24 and 25 of this Schedule.
Adoption and Children Act 2002 (c. 38)
5
27    (1)
The Adoption and Children Act 2002 is amended as follows.
      (2)
Those amendments do not have effect at any time after the amendments
made to the Adoption and Children Act 2002 by paragraph 413 of Schedule
8 to the Courts Act 2003 have come into force.
28
In section 141 (rules of procedure), in subsection (1) for “The Lord
10
Chancellor may make rules” substitute “Rules may be made in accordance
with Part 1 of Schedule 1 to the Constitutional Reform Act 2005”.
29
In section 142 (supplementary and consequential provision), in subsection
(4) for “this Act or” substitute “this Act, any power to make rules under
section 141 or any power”.
15
Courts Act 2003 (c. 39)
30
In section 76 of the Courts Act 2003 (further provision about scope of Family
Procedure Rules) omit “by the President of the Family Division, with the
concurrence of the Lord Chancellor,”.
Schedule 2
20
Section 11

Powers to give directions
Part 1
The process
Interpretation
1
In this Part “designated directions” means directions under another Act
25
which are, by virtue of provision in that Act, to be made or given in
accordance with this Part.
The process
2     (1)
It is for the Lord Chief Justice, or a judicial office holder nominated by the
Lord Chief Justice with the agreement of the Minister, to make or give
30
designated directions.
      (2)
The Lord Chief Justice may nominate a judicial office holder in accordance
with sub-paragraph (1)—
(a)
to make or give designated directions generally, or
(b)
to make or give designated directions under a particular enactment.
35
      (3)
In this part—
(a)
“judicial office holder” has the same meaning as in section 95(4);

Constitutional Reform Bill [HL]
Schedule 2 — Powers to give directions
Part 2 — Powers of direction subject to the process in Part 1
59

(b)
references to the Lord Chief Justice’s nominee, in relation to
designated directions, means a judicial office holder nominated by
the Lord Chief Justice under sub-paragraph (1) to make or give those
directions.
3     (1)
The Lord Chief Justice, or his nominee, may make or give designated
5
directions only with the agreement of the Minister.
      (2)
Sub-paragraph (1) does not apply to designated directions to the extent that
they consist of guidance about any of the following—
(a)
the application or interpretation of the law;
(b)
the making of judicial decisions.
10
      (3)
If the Minister does not agree designated directions made or given by the
Lord Chief Justice, or by his nominee, the Minister must give that person
written reasons why he does not agree the directions.
Part 2
Powers of direction subject to the process in Part 1
15
Courts-Martial (Appeals) Act 1968 (c. 20)
4     (1)
Section 4 of the Courts-Martial (Appeals) Act 1968 is amended as follows.
      (2)
In subsection (1) for “by the Lord Chief Justice with the consent of the Lord
Chancellor” substitute “in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2005”.
20
      (3)
In subsection (2) for “If the Lord Chief Justice so directs” substitute “If such
directions so provide”.
      (4)
In subsection (3) for “the Lord Chief Justice shall direct” substitute “such
directions may provide”.
Supreme Court Act 1981 (c. 54)
25
5
In section 124 of the Supreme Court Act 1981 (place for deposit of original
wills and other documents), for “as the Lord Chancellor may direct”
substitute “as may be provided for in directions given in accordance with
Part 1 of Schedule 2 to the Constitutional Reform Act 2005”.
Civil Procedure Act 1997 (c. 12)
30
6
For section 5 of the Civil Procedure Act 1997 substitute—
“5
Practice directions
(1)
Practice directions may be given in accordance with Part 1 of
Schedule 2 to the Constitutional Reform Act 2005.
(2)
Practice directions given otherwise than under subsection (1) may
35
not be given without the approval of—
(a)
the Lord Chancellor, and
(b)
the Lord Chief Justice.

Constitutional Reform Bill [HL]
Schedule 2 — Powers to give directions
Part 2 — Powers of direction subject to the process in Part 1
60

(3)
Practice directions (whether given under subsection (1) or otherwise)
may provide for any matter which, by virtue of paragraph 3 of
Schedule 1, may be provided for by Civil Procedure Rules.
(4)
The power to give practice directions under subsection (1) includes
power—
5
(a)
to vary or revoke directions given by any person;
(b)
to give directions containing different provision for different
cases (including different areas);
(c)
to give directions containing provision for a specific court, for
specific proceedings or for a specific jurisdiction.
10
(5)
Subsection (2)(a) does not apply to directions to the extent that they
consist of guidance about any of the following—
(a)
the application or interpretation of the law;
(b)
the making of judicial decisions.”
Courts Act 2003 (c. 39)
15
7
The Courts Act 2003 is amended as follows.
8     (1)
Section 74 (practice directions as to practice and procedure of criminal
courts) is amended as follows.
      (2)
In subsection (1) for “The Lord Chief Justice may, with the concurrence of the
Lord Chancellor, give directions” substitute “Directions may be given in
20
accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005”.
      (3)
In subsection (2) for the words from “may not be given” to the end substitute
“given otherwise than under subsection (1) may not be given without the
approval of—
(a)
the Lord Chancellor, and
25
(b)
the Lord Chief Justice.”
      (4)
In subsection (3)(a) for “by the Lord Chief Justice or any other person”
substitute “under subsection (1) or otherwise”.
      (5)
For subsection (4) substitute—
“(4)
Subsection (2)(a) does not apply to directions to the extent that they
30
consist of guidance about any of the following—
(a)
the application or interpretation of the law;
(b)
the making of judicial decisions.”
9     (1)
Section 81 (practice directions relating to family proceedings) is amended as
follows.
35
      (2)
In subsection (1) for “The President of the Family Division may, with the
concurrence of the Lord Chancellor, give directions” substitute “Directions
may be given in accordance with Part 1 of Schedule 2 to the Constitutional
Reform Act 2005”.
      (3)
In subsection (2) for the words from “may not be given” to the end substitute
40
“given otherwise than under subsection (1) may not be given without the
approval of—
(a)
the Lord Chancellor, and
(b)
the Lord Chief Justice.”