Select Committee on Delegated Powers and Deregulation Fifth Report


Right of appeal


72.  Clause 38 enables rules of court to provide that permission (as the rules will in future describe what is now called 'leave') must be granted before an appeal can proceed to or within the county courts and the High Court and to the Court of Appeal. Rules may specify which cases require permission, who may give permission, what considerations should be taken into account when deciding to grant permission and what requirements need to be satisfied before it is granted. Rules of court may and do already provide for leave to appeal to the Civil Division of the Court of Appeal. This clause will allow similar provision to be made for the county courts and High Court.

73.  The purpose of requiring permission is to provide a mechanism by which the courts are able to determine whether or not there are sufficient grounds for an appeal to proceed. This will prevent unmeritorious claims from reaching the court, with the uncertainty and wasted costs that these incur, thus releasing more court time for the hearing of meritorious appeals. Leaving this matter to rules will allow changes to be made in the light of experience to the requirement for permission in particular categories of case.

74.  Rules governing the practice and procedures of the Court of Appeal, High Court and county courts are made under existing provisions in section 1 of the Civil Procedure Act 1997. From April 1999, the Civil Procedure Rule Committee will have responsibility for making rules of court, which the Lord Chancellor may then allow or disallow. The Committee consists of judges, legal practitioners and representatives of the advice and consumer sectors. It is chaired by the Master of the Rolls. Rules are subject to Parliamentary approval under the negative resolution procedure.

75.  Clause 39 contains no delegated powers.

Destination of appeals


76.  Clause 40 provides a new power for the Lord Chancellor to vary, by order, the routes of appeal to and within the county courts, High Court and Court of Appeal (Civil Division). An order may make different provision for different types of proceedings. The clause also provides that the Lord Chancellor may amend or repeal enactments in consequence of any such order. This will be necessary when an order changes a route of appeal which is specified in statute. Before making an order, the Lord Chancellor is required to consult the Lord Chief Justice, Master of the Rolls, Vice-Chancellor and President of the Family Division. Because of the fundamental constitutional importance of the right to appeal to a higher court, orders under this clause will be subject to the affirmative resolution procedure.

77.  The underlying objective of this clause is to ensure that appeals are dealt with in a way that is proportionate to the weight, importance and complexity of their subject matter, and which makes the best use of available resources. It is necessary to leave this matter to secondary legislation because the civil justice system is currently subject to an on-going programme of major reform An order-making power will provide the necessary flexibility to amend appeal routes as the civil justice system evolves, and in response to changes in the availability of, and demands, on judicial resources (eg. following implementation of the Human Rights Act 1998).


78.  Clause 41 provides for appeals to be directed to the Court of Appeal, even if they would not usually lie there. This will ensure that individual appeals of appropriate substance continue to reach the Court of Appeal, even when appeals in that category of case would normally lie elsewhere by virtue of an order made under clause 40.

79.  The clause provides for this procedure to be governed by rules of court, so the Lord Chancellor can set a framework for the exercise of the power to refer exceptional cases to the Court of Appeal, in order to ensure that only those cases which merit its consideration are directed to that Court.

Civil division of Court of Appeal


80.  Clause 42 allows the Master of the Rolls, with the concurrence of the Lord Chancellor, to give directions about the minimum number of judges of which a court must consist in order to hear specified types of proceedings. It also allows the Master of the Rolls or a Lord Justice designated by him to determine the number of judges who should hear particular appeals.

81.  At present, the number of judges who must sit is governed by section 54 of the Supreme Court Act 1981, which provides for a minimum of three judges in the majority of cases. Clause 42 replaces parts of section 54 to provide greater flexibility to determine the constitution of each court according to the individual nature of the appeal. These provisions are aimed at ensuring that the resources devoted to a case are proportionate to its weight and complexity.

82.  Clause 43 contains no delegated powers.

Jurisdiction of single judge of High Court

83.  Clauses 44 - 46 contain no powers to make secondary legislation. They will, however, enable rules of court to be made to provide that certain categories of case should be heard by a single High Court judge (rather than a Divisional Court of a least two judges).

Cases stated

84.  Clause 47 contains no delegated powers.

Reporting of proceedings relating to children

85.  Clause 48 contains no delegated powers.

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