Constitutional Reform Bill [HL]

House of Lords

Session 2003 - 04
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Other Bills before Parliament

Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
63

(b)
after sub-paragraph (4) insert—
“(5)
The Secretary of State for Constitutional Affairs may make an
appointment under sub-paragraph (4) only with the
concurrence—
(a)
where the proceedings referred to in sub-paragraph
5
(1) were taken in England and Wales, of the Lord
Chief Justice of England and Wales;
(b)
where those proceedings were taken in Scotland, of
the Lord President of the Court of Session;
(c)
where those proceedings were taken in Northern
10
Ireland, of the Lord Chief Justice of Northern
Ireland.”
Tobacco Products Duty Act 1979 (c. 7)
129   (1)
Section 5 of the Tobacco Products Duty Act 1979 (retail price of cigarettes) is
amended as follows.
15
      (2)
In subsection (4) for the words from “by the Lord Chancellor” to the end
substitute “in accordance with subsections (7) to (9).”
      (3)
After subsection (6) insert—
“(7)
The Secretary of State for Constitutional Affairs is to appoint the
referee.
20
(8)
The appointment is to be made only with the concurrence of—
(a)
the Lord Chief Justice, if the determination of the
Commissioners was made in relation to England and Wales;
(b)
the Lord President of the Court of Session, if the
determination was made in relation to Scotland; or
25
(c)
the Lord Chief Justice of Northern Ireland, if the
determination was made in relation to Northern Ireland.
(9)
None of the following may be appointed—
(a)
an official of any government department;
(b)
an office holder in, or a member of the staff of, the Scottish
30
Administration.”
Magistrates’ Courts Act 1980 (c. 43)
130
The Magistrates’ Courts Act 1980 is amended as follows.
131   (1)
Section 3B (transfer of trials of summary offences) is amended as follows.
      (2)
In subsection (3) for “Lord Chancellor may” substitute “Lord Chief Justice
35
may, with the concurrence of the Secretary of State for Constitutional
Affairs,”.
      (3)
After subsection (4) insert—
“(5)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
40
exercise his functions under subsection (3).”
132   (1)
Section 67 (Family Proceedings Courts) (as substituted by section 49(1) of the
Courts Act 2003 (c. 39)) is amended as follows.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
64

      (2)
In subsection (3) for “Lord Chancellor or a person acting on his behalf”
substitute “Lord Chief Justice”.
      (3)
In subsection (4) for “Lord Chancellor may by rules” substitute “Lord Chief
Justice may, after consulting the Secretary of State for Constitutional Affairs,
by rules”.
5
      (4)
In subsection (5) for “Lord Chancellor” substitute “Lord Chief Justice”.
      (5)
After subsection (8) insert—
“(9)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (3) or (4) or the powers
10
conferred on him by rules under subsection (4).”
133
In section 137 (fees) in subsection (4) for “Lord Chancellor” substitute
“Secretary of State for Constitutional Affairs”.
134   (1)
Section 144 (rule committee and rules of procedure) is amended as follows.
      (2)
Before subsection (1) insert—
15
“(A1)
The Secretary of State may appoint a rule committee for magistrates’
courts.”
      (3)
In subsection (1)—
(a)
for the words from the beginning to “and may on” substitute “The
Lord Chief Justice may on”;
20
(b)
after “consultation with the rule committee” insert “, and with the
concurrence of the Secretary of State,”.
      (4)
After subsection (1) insert—
“(1A)
If the Secretary of State does not agree rules made by the Lord Chief
Justice, the Secretary of State must give the Lord Chief Justice and the
25
rules committee written reasons for doing so.”
      (5)
In subsection (2)—
(a)
for “Lord Chancellor” substitute “Secretary of State”;
(b)
for “he may determine” substitute “he may, after consulting the Lord
Chief Justice, determine”.
30
      (6)
In subsection (3) for “Lord Chancellor” substitute “Secretary of State in
accordance with subsection (2)”.
      (7)
After subsection (4) insert—
“(4A)
In this section “Secretary of State” means the Secretary of State for
Constitutional Affairs.”
35
135
After section 144 insert—
“144A  Rules to be made if required by Secretary of State
(1)
This section applies if the Secretary of State for Constitutional Affairs
gives the Lord Chief Justice written notice that he thinks it is
expedient for rules made under section 144 to include provision that
40
would achieve a purpose specified in the notice.
(2)
The Lord Chief Justice must make such rules as he considers
necessary to achieve the specified purpose.
(3)
Those rules must be—

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
65

(a)
made within a reasonable period after the Secretary of State
gives notice to the Lord Chief Justice;
(b)
made in accordance with section 144.”
Housing Act 1980 (c. 51)
136
In section 86 of the Housing Act 1980 (jurisdiction of county court), omit
5
subsections (4) to (6) (rules and directions).
Judicial Pensions Act 1981 (c. 20)
137
The Judicial Pensions Act 1981 is amended as follows.
138
In section 1 (interpretation) in the entry beginning “Judge of the Supreme
Court” in the first column of the table omit “, other than the Lord
10
Chancellor”.
139
In section 3 (former holder of office other than high judicial office), in
subsection (1) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
140   (1)
Section 5 (Circuit Judge in England and Wales) is amended as follows.
15
      (2)
In subsection (1)—
(a)
for “Lord Chancellor” in each place substitute “Secretary of State for
Constitutional Affairs”;
(b)
after subsection (1) insert—
“(1A)
The Secretary of State for Constitutional Affairs must consult
20
the Lord Chief Justice before making a recommendation in a
case that falls within subsection (1)(b) or (c).”
      (3)
After subsection (6) insert—
“(7)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
25
exercise his functions under this section.”
141   (1)
Section 7 (stipendiary magistrates in England and Wales) is amended as
follows.
      (2)
In subsection (1)—
(a)
for “Lord Chancellor” in each place substitute “Secretary of State for
30
Constitutional Affairs”;
(b)
after subsection (1) insert—
“(1A)
The Secretary of State for Constitutional Affairs must consult
the Lord Chief Justice before making a recommendation in a
case that falls within subsection (1)(b).”
35
      (3)
After subsection (6) insert—
“(7)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
142
In section 10 (president or other member of either Lands Tribunal), in
40
subsection (2)(a) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
66

143
In section 11 (president of pensions appeals tribunals), for “Lord Chancellor”
in each place substitute “Secretary of State for Constitutional Affairs”.
144   (1)
Section 13 (Social Security Commissioners) is amended as follows.
      (2)
In subsection (1)—
(a)
for “Lord Chancellor” in each place substitute “Secretary of State for
5
Constitutional Affairs”;
(b)
after subsection (1) insert—
“(1A)
The Secretary of State for Constitutional Affairs must consult
the Lord Chief Justice before making a recommendation in a
case that falls within subsection (1)(b) or (c).”
10
      (3)
After subsection (6)—
“(7)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
145
In section 13A (Registrar of Criminal Appeals) for “Lord Chancellor”
15
substitute “Secretary of State for Constitutional Affairs”.
146
In section 14A (modifications of preceding provisions), in the definition of
“the Minister” in subsection (2) for “Lord Chancellor” substitute “Secretary
of State for Constitutional Affairs”.
147
In section 23 (contribution towards cost of widow’s and children’s pension),
20
in subsection (4) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
148
In section 29B (pension credits: restrictions on payments), in subsection
(2)(b) for “Lord Chancellor” substitute “Secretary of State for Constitutional
Affairs”.
25
149
In section 32A (appeals), in paragraph (b) of the definition of “the
appropriate Minister” in subsection (6) for “Lord Chancellor” substitute
“Secretary of State for Constitutional Affairs”.
150
In section 33A (voluntary contributions), in subsection (6)(a) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
30
151
In Schedule 1 (pension benefits of certain Supreme Court officers etc), in
paragraph 3(3) (election by person with previous service in principal civil
service pension scheme) for “Lord Chancellor” substitute “Secretary of State
for Constitutional Affairs”.
152   (1)
Schedule 1A (transfer of accrued benefits) is amended as follows.
35
      (2)
In paragraph 2 (regulations), in sub-paragraph (a) for “Lord Chancellor”
substitute “Secretary of State for Constitutional Affairs”.
      (3)
In paragraph 11 (application to accept payment into scheme), in the
definition of “the appropriate Minister” in sub-paragraph (3) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
40
      (4)
In Schedule 2 (transitory provisions), in paragraph 2(2) (Circuit judges) for
“Lord Chancellor” substitute “Secretary of State for Constitutional Affairs”.
Supreme Court Act 1981 (c. 54)
153
The Supreme Court Act 1981 is amended as follows.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
67

154   (1)
Section 2 (membership of the Court of Appeal) is amended as follows.
      (2)
In subsection (2)—
(a)
for paragraphs (f) and (g) substitute—
“(f)
the President of the Queen’s Bench Division;
(g)
the President of the Family Division;
5
(h)
the Chancellor of the High Court;”
(b)
for “Lord Chancellor’s request” substitute “request of the Lord Chief
Justice”.
      (3)
After subsection (2) insert—
“(2A)
The Lord Chief Justice may nominate a judicial office holder (as
10
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his function under subsection (2) of making requests to
persons within paragraphs (b) and (c) of that subsection.”
      (4)
After subsection (4) insert—
“(4A)
It is for the Secretary of State for Constitutional Affairs to
15
recommend to Her Majesty the making of an Order under subsection
(4).”
      (5)
In subsection (6)—
(a)
omit “Lord Chancellor,”;
(b)
for “President of the Family Division or Vice-Chancellor” substitute
20
“President of the Queen’s Bench Division, President of the Family
Division or Chancellor of the High Court”.
155   (1)
Section 3 (Divisions of Court of Appeal) is amended as follows.
      (2)
In subsection (3) for “Lord Chancellor may” substitute “Lord Chief Justice
may, after consulting the Secretary of State for Constitutional Affairs”.
25
      (3)
After subsection (5) insert—
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (3).”
156   (1)
Section 4 (membership of the High Court) is amended as follows.
30
      (2)
In subsection (1), 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;”.
      (3)
After subsection (4) insert—
35
“(4A)
It is for the Secretary of State for Constitutional Affairs to
recommend to Her Majesty the making of an Order under subsection
(4).”
      (4)
In subsection (6)—
(a)
omit “Lord Chancellor,”;
40
(b)
for “President of the Family Division, Vice-Chancellor” substitute
“President of the Queen’s Bench Division, President of the Family
Division, Chancellor of the High Court”.
157   (1)
Section 5 (divisions of the High Court) is amended as follows.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
68

      (2)
In subsection (1)(a) for the words from “the Lord Chancellor” to “vice-
president thereof,” substitute “the Chancellor of the High Court, who shall
be president thereof,”.
      (3)
In subsection (1)(b) for “who shall be president thereof” substitute “, the
President of the Queen’s Bench Division”.
5
      (4)
In subsection (2) for “of the Lord Chancellor” in each place substitute “given
by the Lord Chief Justice after consulting the Secretary of State for
Constitutional Affairs”.
      (5)
In subsection (3) for the words from “with the concurrence of” to the end
substitute—
10

“with the concurrence of both of the following—
(a)
the senior judge of the Division to which the judge is
attached;
(b)
the senior judge of the Division of which the judge is to act as
an additional judge.”
15
      (6)
After subsection (5) insert—
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (2).”
158   (1)
Section 6 (the Patents, Admiralty and Commercial Courts) is amended as
20
follows.
      (2)
In subsection (2) for “Lord Chancellor may” substitute “Lord Chief Justice
may, after consulting the Secretary of State for Constitutional Affairs,”.
      (3)
After subsection (2) insert—
“(3)
The Lord Chief Justice may nominate a judicial office holder (as
25
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (2).”
159   (1)
Section 7 (power to alter Divisions etc) is amended as follows.
      (2)
In subsection (1) after “recommendation of” insert “the Secretary of State for
Constitutional Affairs and”.
30
      (3)
In subsection (2)—
(a)
omit “the Lord Chancellor,”;
(b)
for “the President of the Family Division and the Vice-Chancellor”
substitute “the President of the Queen’s Bench Division, the
President of the Family Division and the Chancellor of the High
35
Court”.
160   (1)
Section 9 (assistance for transaction of judicial business of Supreme Court) is
amended as follows.
      (2)
In subsection (2)—
(a)
for the definition of “the appropriate authority” substitute—
40

““the appropriate authority” means—
(a)
the Lord Chief Justice or a judicial office holder (as
defined in section 91(4) of the Constitutional
Reform Act 2004) nominated by him to exercise his
functions under this section, or
45
(b)
at any time when the Lord Chief Justice or the
nominated judicial office holder is unable to make

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
69

such a request himself, or there is a vacancy in the
office of Lord Chief Justice, the Master of the Rolls;”
(b)
omit the words after the definition of “relevant court”.
      (3)
After subsection (2) insert—
“(2A)
The power of the relevant authority to make a request under
5
subsection (1) is subject to subsections (2B) to (2D).
(2B)
In the case of a request to a person within entry 1, 3, 5 or 6 in column
1 of the Table, the relevant authority may make the request only after
consulting the Secretary of State for Constitutional Affairs.
(2C)
In any other case the relevant authority may make a request only
10
with the concurrence of the Secretary of State for Constitutional
Affairs.
(2D)
In the case of a request to a Circuit judge or Recorder to act as a judge
of the High Court, the relevant authority may make the request only
with the concurrence of the Judicial Appointments Commission.”
15
      (4)
In subsection (4)—
(a)
for “appears to the Lord Chancellor” substitute “appears to the Lord
Chief Justice, after consulting the Secretary of State for
Constitutional Affairs,”;
(b)
for “Lord Chancellor thinks fit” substitute “Lord Chief Justice may,
20
after consulting the Secretary of State for Constitutional Affairs,
think fit”.
      (5)
In subsection (4A) for “Lord Chancellor’s power” substitute “power of the
Secretary of State for Constitutional Affairs”.
      (6)
In subsection (8) for “Lord Chancellor” substitute “Secretary of State for
25
Constitutional Affairs”.
      (7)
After subsection (8) insert—
“(9)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (4).”
30
161   (1)
Section 10 (appointment of judges of Supreme Court) is amended as follows.
      (2)
In subsection (1)—
(a)
for “President of the Family Division or Vice-Chancellor” substitute
“President of the Queen’s Bench Division, President of the Family
Division or Chancellor of the High Court”;
35
(b)
after “may” insert “, on the recommendation of the Secretary of State
for Constitutional Affairs,”.
      (3)
In subsection (2) after “may” insert “, on the recommendation of the
Secretary of State for Constitutional Affairs,”.
      (4)
In subsection (3)(a) for “President of the Family Division or Vice-Chancellor”
40
substitute “President of the Queen’s Bench Division, President of the Family
Division or Chancellor of the High Court”.
      (5)
For subsection (4) substitute—
“(4)
A person appointed—
(a)
to any of the offices mentioned in subsection (1),
45
(b)
as a Lord Justice of Appeal, or