Tribunals, Courts and Enforcement Bill [HL]

House of Commons

Session 2006 - 07
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Tribunals, Courts and Enforcement Bill [HL]

Tribunals, Courts and Enforcement Bill [HL]
Schedule 3 — Judges and other members of the Upper Tribunal
123

      (3)
If the person exercises functions wholly or mainly in Northern Ireland, the
power may be exercised only with the concurrence of the Lord Chief Justice
of Northern Ireland.
      (4)
If neither of sub-paragraphs (2) and (3) applies, the power may be exercised
only with the concurrence of the Lord Chief Justice of England and Wales.
5
Terms of appointment
4     (1)
This paragraph applies—
(a)
to a person appointed under paragraph 1(1) or 2(1),
(b)
to a transferred-in judge of the Upper Tribunal, and
(c)
to a transferred-in other member of the Upper Tribunal.
10
      (2)
If the terms of the person’s appointment provide that he is appointed on a
salaried (as opposed to fee-paid) basis, the person may be removed from
office—
(a)
only by the Lord Chancellor (and in accordance with paragraph 3),
and
15
(b)
only on the ground of inability or misbehaviour.
      (3)
Subject to sub-paragraph (2) (and to the Judicial Pensions and Retirement
Act 1993 (c. 8)), the person is to hold and vacate office as a judge, or other
member, of the Upper Tribunal in accordance with the terms of his
appointment.
20
Remuneration, allowances and expenses
5     (1)
Sub-paragraph (2) applies—
(a)
to a person appointed under paragraph 1(1) or 2(1),
(b)
to a transferred-in judge of the Upper Tribunal, and
(c)
to a transferred-in other member of the Upper Tribunal.
25
      (2)
The Lord Chancellor may pay to a person to whom this sub-paragraph
applies such amounts (if any) as the Lord Chancellor may determine by way
of—
(a)
remuneration;
(b)
allowances;
30
(c)
expenses.
Certain judges neither appointed under paragraph 1(1) nor transferred in
6     (1)
In this paragraph “judge by request of the Upper Tribunal” means a person
who is a judge of the Upper Tribunal but—
(a)
is not the Senior President of Tribunals,
35
(b)
is not a judge of the Upper Tribunal appointed under paragraph 1(1),
(c)
is not a transferred-in judge of the Upper Tribunal,
(d)
is not a judge of the Upper Tribunal by virtue of section 5(1)(d)
(legally qualified member of Asylum and Immigration Tribunal),
(e)
is not a deputy judge of the Upper Tribunal, and
40
(f)
is not a Chamber President, or Acting Chamber President or Deputy
Chamber President, of a chamber of the Upper Tribunal.

Tribunals, Courts and Enforcement Bill [HL]
Schedule 3 — Judges and other members of the Upper Tribunal
124

      (2)
A judge by request of the Upper Tribunal may act as a judge of the Upper
Tribunal only if requested to do so by the Senior President of Tribunals.
      (3)
Such a request made to a person who is a judge of the Upper Tribunal by
virtue of section 5(1)(g) may be made only with—
(a)
the concurrence of the Lord Chief Justice of England and Wales
5
where the person is—
(i)
an ordinary judge of the Court of Appeal in England and
Wales,
(ii)
a puisne judge of the High Court in England and Wales,
(iii)
a circuit judge,
10
(iv)
a district judge in England and Wales, or
(v)
a District Judge (Magistrates’ Courts);
(b)
the concurrence of the Lord President of the Court of Session where
the person is—
(i)
a judge of the Court of Session, or
15
(ii)
a sheriff;
(c)
the concurrence of the Lord Chief Justice of Northern Ireland where
the person is—
(i)
a Lord Justice of Appeal in Northern Ireland,
(ii)
a puisne judge of the High Court in Northern Ireland,
20
(iii)
a county court judge in Northern Ireland, or
(iv)
a district judge in Northern Ireland.
      (4)
The Lord Chancellor may pay to a judge by request of the Upper Tribunal,
or a person who is a judge of the Upper Tribunal by virtue of section 5(1)(d),
such amounts (if any) as the Lord Chancellor may determine by way of—
25
(a)
remuneration;
(b)
allowances;
(c)
expenses.
Deputy judges of the Upper Tribunal
7     (1)
The Lord Chancellor may appoint a person to be a deputy judge of the
30
Upper Tribunal for such period as the Lord Chancellor considers
appropriate.
      (2)
A person is eligible for appointment under sub-paragraph (1) only if he is
eligible to be appointed under paragraph 1(1) (see paragraph 1(2)).
      (3)
Sub-paragraphs (4) and (5) apply—
35
(a)
to a person appointed under sub-paragraph (1), and
(b)
to a person who becomes a deputy judge of the Upper Tribunal as a
result of provision under section 31(2).
      (4)
A person to whom this sub-paragraph applies is to hold and vacate office as
a deputy judge of the Upper Tribunal in accordance with the terms of his
40
appointment (subject to the Judicial Pensions and Retirement Act 1993
(c. 8)).
      (5)
The Lord Chancellor may pay to a person to whom this sub-paragraph
applies such amounts (if any) as the Lord Chancellor may determine by way
of—
45
(a)
remuneration;

Tribunals, Courts and Enforcement Bill [HL]
Schedule 3 — Judges and other members of the Upper Tribunal
125

(b)
allowances;
(c)
expenses.
Other members neither appointed under paragraph 2(1) nor transferred in
8     (1)
In this paragraph “ex officio member of the Upper Tribunal” means—
(a)
a person who is a member of the Upper Tribunal by virtue of section
5
5(2)(c) (member of Employment Appeal Tribunal appointed under
section 22(1)(c) of the Employment Tribunals Act 1996), or
(b)
a person who is a member of the Upper Tribunal by virtue of section
5(2)(d) (member of the Asylum and Immigration Tribunal who is not
a legally qualified member).
10
      (2)
The Lord Chancellor may pay to an ex officio member of the Upper Tribunal
such amounts (if any) as the Lord Chancellor may determine by way of—
(a)
remuneration;
(b)
allowances;
(c)
expenses.
15
Training etc.
9
The Senior President of Tribunals is responsible, within the resources made
available by the Lord Chancellor, for the maintenance of appropriate
arrangements for the training, guidance and welfare of judges and other
members of the Upper Tribunal (in their capacities as such judges and other
20
members).
Oaths
10    (1)
Sub-paragraph (2) applies to a person (“J”)—
(a)
who is appointed under paragraph 1(1), 2(1) or 7(1), or
(b)
who—
25
(i)
becomes a transferred-in judge, or a transferred-in other
member, of the Upper Tribunal, or
(ii)
becomes a deputy judge of the Upper Tribunal as a result of
provision under section 31(2),

and has not previously taken the required oaths after accepting
30
another office.
      (2)
J must take the required oaths before—
(a)
the Senior President of Tribunals, or
(b)
an eligible person who is nominated by the Senior President of
Tribunals for the purpose of taking the oaths from J.
35
      (3)
A person is eligible for the purposes of sub-paragraph (2)(b) if any one or
more of the following paragraphs applies to him—
(a)
he holds high judicial office (as defined in section 60(2) of the
Constitutional Reform Act 2005 (c. 4));
(b)
he holds judicial office (as defined in section 109(4) of that Act);
40
(c)
he holds (in Scotland) the office of sheriff.
      (4)
In this paragraph “the required oaths” means (subject to sub-paragraph
(5))—
(a)
the oath of allegiance, and

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 1 — Chamber Presidents: appointment, delegation, deputies and further provision
126

(b)
the judicial oath,

as set out in the Promissory Oaths Act 1868 (c. 72).
      (5)
Where it appears to the Lord Chancellor that J will carry out functions as a
judge or other member of the Upper Tribunal wholly or mainly in Northern
Ireland, the Lord Chancellor may direct that in relation to J “the required
5
oaths” means—
(a)
the oath as set out in section 19(2) of the Justice (Northern Ireland)
Act 2002 (c. 26), or
(b)
the affirmation and declaration as set out in section 19(3) of that Act.
Schedule 4
10
Section 7

Chambers and Chamber Presidents: further provision
Part 1
Chamber Presidents: appointment, delegation, deputies and further provision
Eligibility for appointment as Chamber President by Lord Chancellor
1
A person is eligible for appointment under section 7(7) only if—
15
(a)
he is a judge of the Upper Tribunal, or
(b)
he does not fall within paragraph (a) but is eligible to be appointed
under paragraph 1(1) of Schedule 3 as a judge of the Upper Tribunal
(see paragraph 1(2) of that Schedule).
Appointment as Chamber President by Lord Chancellor: consultation and nomination
20
2     (1)
The Lord Chancellor must consult the Senior President of Tribunals before
the Lord Chancellor appoints under section 7(7) a person within—
section 6(1)(a) (ordinary judge of Court of Appeal in England and
Wales),
section 6(1)(b) (Lord Justice of Appeal in Northern Ireland),
25
section 6(1)(c) (judge of the Court of Session), or
section 6(1)(d) (puisne judge of the High Court in England and Wales
or Northern Ireland).
      (2)
If the Lord Chancellor, in exercise of his power under section 7(7) in a
particular case, wishes that the person appointed should be drawn from
30
among the ordinary judges of the Court of Appeal in England and Wales or
the puisne judges of the High Court in England and Wales, the Lord
Chancellor must first ask the Lord Chief Justice of England and Wales to
nominate one of those judges for the purpose.
      (3)
If the Lord Chancellor, in exercise of his power under section 7(7) in a
35
particular case, wishes that the person appointed should be drawn from
among the judges of the Court of Session, the Lord Chancellor must first ask
the Lord President of the Court of Session to nominate one of those judges
for the purpose.
      (4)
If the Lord Chancellor, in exercise of his power under section 7(7) in a
40
particular case, wishes that the person appointed should be drawn from

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 1 — Chamber Presidents: appointment, delegation, deputies and further provision
127

among the Lords Justices of Appeal in Northern Ireland or the puisne judges
of the High Court in Northern Ireland, the Lord Chancellor must first ask the
Lord Chief Justice of Northern Ireland to nominate one of those judges for
the purpose.
      (5)
If a judge is nominated under sub-paragraph (2), (3) or (4) in response to a
5
request under that sub-paragraph, the Lord Chancellor must appoint the
nominated judge as Chamber President of the chamber concerned.
Chamber Presidents: duration of appointment, remuneration etc.
3     (1)
A Chamber President is to hold and vacate office as a Chamber President in
accordance with the terms of his appointment as a Chamber President
10
(subject to the Judicial Pensions and Retirement Act 1993 (c. 8)).
      (2)
The Lord Chancellor may pay to a Chamber President such amounts (if any)
as the Lord Chancellor may determine by way of—
(a)
remuneration;
(b)
allowances;
15
(c)
expenses.
Delegation of functions by Chamber Presidents
4     (1)
The Chamber President of a chamber of the First-tier Tribunal or Upper
Tribunal may delegate any function he has in his capacity as the Chamber
President of the chamber—
20
(a)
to any judge, or other member, of either of those tribunals;
(b)
to staff appointed under section 40(1).
      (2)
A delegation under sub-paragraph (1) is not revoked by the delegator’s
becoming incapacitated.
      (3)
Any delegation made by a person under sub-paragraph (1) that is in force
25
immediately before the person ceases to be the Chamber President of a
chamber continues in force until subsequently varied or revoked by another
holder of the office of Chamber President of that chamber.
      (4)
The delegation under sub-paragraph (1) of a function shall not prevent the
exercise of the function by the Chamber President of the chamber concerned.
30
      (5)
In this paragraph “delegate” includes further delegate.
Deputy Chamber Presidents
5     (1)
The Lord Chancellor may appoint a person who is not a Deputy Chamber
President of a chamber to be a Deputy Chamber President of a chamber.
      (2)
The Senior President of Tribunals may appoint a person who is a Deputy
35
Chamber President of a chamber to be instead, or to be also, a Deputy
Chamber President of another chamber.
      (3)
The power under sub-paragraph (1) is exercisable in any particular case only
if the Lord Chancellor—
(a)
has consulted the Senior President of Tribunals about whether a
40
Deputy Chamber President should be appointed for the chamber
concerned, and

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 1 — Chamber Presidents: appointment, delegation, deputies and further provision
128

(b)
considers, in the light of the consultation, that a Deputy Chamber
President of the chamber should be appointed.
      (4)
A person is eligible for appointment under sub-paragraph (1) only if—
(a)
he is a judge of the Upper Tribunal by virtue of appointment under
paragraph 1(1) of Schedule 3,
5
(b)
he is a transferred-in judge of the Upper Tribunal (see section 31(2)),
(c)
he is a judge of the Upper Tribunal by virtue of—
section 5(1)(d) (legally qualified member of Asylum and
Immigration Tribunal),
section 5(1)(e) (Social Security Commissioner for Northern
10
Ireland),
section 5(1)(g) (certain judges of courts in the United Kingdom), or
section 5(1)(h) (deputy judge of the Upper Tribunal), or
(d)
he falls within none of paragraphs (a) to (c) but is eligible to be
appointed under paragraph 1(1) of Schedule 3 as a judge of the
15
Upper Tribunal (see paragraph 1(2) of that Schedule).
      (5)
If the Lord Chancellor, in exercise of his power under sub-paragraph (1) in
a particular case, wishes that the person appointed should be drawn from
among the ordinary judges of the Court of Appeal in England and Wales or
the puisne judges of the High Court in England and Wales, the Lord
20
Chancellor must first ask the Lord Chief Justice of England and Wales to
nominate one of those judges for the purpose.
      (6)
If the Lord Chancellor, in exercise of his power under sub-paragraph (1) in
a particular case, wishes that the person appointed should be drawn from
among the judges of the Court of Session, the Lord Chancellor must first ask
25
the Lord President of the Court of Session to nominate one of those judges
for the purpose.
      (7)
If the Lord Chancellor, in exercise of his power under sub-paragraph (1) in
a particular case, wishes that the person appointed should be drawn from
among the Lords Justices of Appeal in Northern Ireland or the puisne judges
30
of the High Court in Northern Ireland, the Lord Chancellor must first ask the
Lord Chief Justice of Northern Ireland to nominate one of those judges for
the purpose.
      (8)
If a judge is nominated under sub-paragraph (5), (6) or (7) in response to a
request under that sub-paragraph, the Lord Chancellor must appoint the
35
nominated judge as a Deputy Chamber President of the chamber concerned.
      (9)
A Deputy Chamber President is to hold and vacate office as a Deputy
Chamber President in accordance with the terms of his appointment (subject
to the Judicial Pensions and Retirement Act 1993 (c. 8)).
     (10)
The Lord Chancellor may pay to a Deputy Chamber President such amounts
40
(if any) as the Lord Chancellor may determine by way of—
(a)
remuneration;
(b)
allowances;
(c)
expenses.
     (11)
In sub-paragraphs (1) and (2) “chamber” means chamber of the First-tier
45
Tribunal or chamber of the Upper Tribunal.

Tribunals, Courts and Enforcement Bill [HL]
Schedule 4 — Chambers and Chamber Presidents: further provision
Part 1 — Chamber Presidents: appointment, delegation, deputies and further provision
129

Acting Chamber Presidents
6     (1)
If in the case of a particular chamber of the First-tier Tribunal or Upper
Tribunal there is no-one appointed under section 7 to preside over the
chamber, the Senior President of Tribunals may appoint a person to preside
over the chamber during the vacancy.
5
      (2)
A person appointed under sub-paragraph (1) is to be known as an Acting
Chamber President.
      (3)
A person who is the Acting Chamber President of a chamber is to be treated
as the Chamber President of the chamber for all purposes other than—
(a)
the purposes of this paragraph of this Schedule, and
10
(b)
the purposes of the Judicial Pensions and Retirement Act 1993 (c. 8).
      (4)
A person is eligible for appointment under sub-paragraph (1) only if he is
eligible for appointment as a Chamber President.
      (5)
An Acting Chamber President is to hold and vacate office as an Acting
Chamber President in accordance with the terms of his appointment.
15
      (6)
The Lord Chancellor may pay to an Acting Chamber President such
amounts (if any) as the Lord Chancellor may determine by way of—
(a)
remuneration;
(b)
allowances;
(c)
expenses.
20
Guidance
7
The Chamber President of a chamber of the First-tier Tribunal or the Upper
Tribunal is to make arrangements for the issuing of guidance on changes in
the law and practice as they relate to the functions allocated to the chamber.
Oaths
25
8     (1)
Sub-paragraph (2) applies to a person (“the appointee”)—
(a)
appointed under section 7(7) as a Chamber President,
(b)
appointed under paragraph 5(1) as a Deputy Chamber President of
a chamber, or
(c)
appointed as an Acting Chamber President.
30
      (2)
The appointee must take the required oaths before—
(a)
the Senior President of Tribunals, or
(b)
an eligible person who is nominated by the Senior President of
Tribunals for the purpose of taking the oaths from the appointee.
      (3)
A person is eligible for the purposes of sub-paragraph (2)(b) if any one or
35
more of the following paragraphs applies to him—
(a)
he holds high judicial office (as defined in section 60(2) of the
Constitutional Reform Act 2005 (c. 4));
(b)
he holds judicial office (as defined in section 109(4) of that Act);
(c)
he holds (in Scotland) the office of sheriff.
40
      (4)
Sub-paragraph (2) does not apply to the appointee if he has previously taken
the required oaths in compliance with a requirement imposed on him under
paragraph 9 of Schedule 2 or paragraph 10 of Schedule 3.