Constitutional Reform Bill [HL]

House of Lords

Session 2003 - 04
Internet Publications
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
70

(c)
as a puisne judge of the High Court,

shall take the required oaths as soon as may be after accepting office.
(5)
In the case of a person appointed to the office of Lord Chief Justice,
the required oaths are to be taken in the presence of all of the
following—
5
(a)
the Master of the Rolls;
(b)
the President of the Queen’s Bench Division;
(c)
the President of the Family Division;
(d)
the Chancellor of the High Court.
(6)
Where subsection (5) applies but there is a vacancy in one or more
10
(but not all) of the offices mentioned in that subsection, the required
oaths are to be taken in the presence of the holders of such of the
offices as are not vacant.
(7)
In the case of a person appointed other than to the office of Lord
Chief Justice, the required oaths are to be taken in the presence of—
15
(a)
the Lord Chief Justice, or
(b)
a judicial office holder (as defined in section 91(4) of the
Constitutional Reform Act 2004) nominated by him for this
purpose.
(8)
In this section “required oaths” means—
20
(a)
the oath of allegiance, and
(b)
the judicial oath,

as set out in the Promissory Oaths Act 1868.”
162   (1)
Section 11 (tenure of office) is amended as follows.
      (2)
After subsection (3) insert—
25
“(3A)
It is for the Secretary of State for Constitutional Affairs to
recommend to Her Majesty the exercise of the power of removal
under subsection (3).”
      (3)
In subsections (7) and (8) for “Lord Chancellor” substitute “Secretary of State
for Constitutional Affairs”.
30
      (4)
In subsection (9)(a) 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 Court,”.
163
In section 12 (salaries etc of judges of Supreme Court)—
(a)
in subsection (1) omit “, other than the Lord Chancellor,”;
35
(b)
for “Lord Chancellor” in every other place substitute “Secretary of
State for Constitutional Affairs”.
164   (1)
Section 13 (precedence of judges of Supreme Court) is amended as follows.
      (2)
For subsections (2) and (3) substitute—
“(2)
Subject to subsection (1)(b), the President of the Queen’s Bench
40
Division shall rank next after the Master of the Rolls.
(2A)
The President of the Family Division shall rank next after the
President of the Queen’s Bench Division.
(3)
The Chancellor of the High Court shall rank next after the President
of the Family Division.
45

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
71

      (3)
In subsection (4) for “Vice-Chancellor” substitute “Chancellor of the High
Court”.
165
In section 16 (appeals from High Court), in subsection (1) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
166
In section 44 (extraordinary functions of judges of High Court), in subsection
5
(2) omit “the Lord Chancellor,”.
167
In section 54 (court of civil division), in subsection (3) for “Lord Chancellor”
substitute “Secretary of State for Constitutional Affairs”.
168
In section 56B (allocation of cases in criminal division), in subsection (2) for
“with the concurrence of the Lord Chancellor” substitute “after consulting
10
the Secretary of State for Constitutional Affairs”.
169   (1)
Section 57 (Court of Appeal: sittings and vacations) is amended as follows.
      (2)
In subsection (2) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs after consulting the Lord Chief Justice”.
      (3)
In subsection (4)(a) for “Lord Chancellor” substitute “Secretary of State for
15
Constitutional Affairs”.
      (4)
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
exercise his functions under this section.”
20
170   (1)
Section 61 (distribution of business among Divisions) is amended as
follows).
      (2)
In subsection (3)—
(a)
for “Lord Chancellor may” substitute “Lord Chief Justice may, with
the concurrence of the Secretary of State for Constitutional Affairs,”;
25
(b)
in paragraph (b) for “appears to him” substitute “appears to the Lord
Chief Justice and the Secretary of State for Constitutional Affairs”.
      (3)
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
30
exercise his functions under subsection (3).”
171   (1)
Section 63 (business assigned to specially nominated judges) is amended as
follows.
      (2)
In subsection (1) for “by the Lord Chancellor” substitute “by the Lord Chief
Justice after consulting the Secretary of State for Constitutional Affairs”.
35
      (3)
In subsection (2) for “Lord Chancellor” substitute “Lord Chief Justice, after
consulting the Secretary of State for Constitutional Affairs, to be”.
      (4)
After subsection (3) insert—
“(4)
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 (1) or (2).”
172   (1)
Section 68 (exercise of jurisdiction of High Court otherwise than by judges
of that court) is amended as follows.
      (2)
In subsection (1)(a) for “Lord Chancellor may” substitute “Lord Chief Justice
may, after consulting the Secretary of State for Constitutional Affairs,”.
45

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
72

      (3)
In subsection (6) for “by the Lord Chancellor” substitute “by the Lord Chief
Justice after consulting the Secretary of State for Constitutional Affairs”.
      (4)
After subsection (7) insert—
“(8)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
5
exercise his functions under subsections (1)(a) and (6).”
173   (1)
Section 71 (High Court: sittings and vacations) is amended as follows.
      (2)
In subsection (2) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs after consulting the Lord Chief Justice”.
      (3)
In subsection (4)(a) for “Lord Chancellor” substitute “Secretary of State for
10
Constitutional Affairs”.
      (4)
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 this section.”
15
174   (1)
Section 74 (appeals and committals for sentence) is amended as follows.
      (2)
In subsection (4) for “Lord Chancellor” in each place substitute “Secretary of
State for Constitutional Affairs”.
      (3)
After subsection (5) insert—
“(5A)
Before exercising any functions under subsection (4), the Secretary of
20
State for Constitutional Affairs must consult the Lord Chief Justice.”
      (4)
After subsection (7) insert—
“(8)
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.”
25
175
In section 75 (allocation of cases according to composition of court, etc), in
subsections (1) and (2) for “Lord Chancellor” substitute “Secretary of State
for Constitutional Affairs”.
176
In section 78 (Crown Court: sittings), in subsection (3) for “by the Lord
Chancellor” substitute “by the Secretary of State for Constitutional Affairs
30
after consulting the Lord Chief Justice”.
177
In section 82 (duties of officers of Crown Court), in subsection (1) for “Lord
Chancellor” substitute “Secretary of State for Constitutional Affairs, after
consulting the Lord Chief Justice”.
178
Omit section 84(8) (rules of court for Crown Court etc to be made by
35
statutory instrument).
179   (1)
Section 86 (the Crown Court Rule Committee) is amended as follows.
      (2)
In subsection (1) for “by the Lord Chancellor together with any four or more
of the following persons, namely—” substitute “by a committee known as
the Crown Court Rule Committee, which is to consist of the following
40
persons—”.

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
73

      (3)
For subsections (2) to (4) substitute—
“(2)
The members of the Crown Court Rule Committee, other than those
eligible to act by virtue of their office, are appointed under
subsection (3) or (4).
(3)
The Lord Chief Justice must appoint the persons referred to in
5
paragraphs (b), (c) and (e) of subsection (1), after consulting the
Secretary of State.
(4)
The Secretary of State must appoint the persons referred to in
paragraphs (f) and (g) of subsection (1), after consulting the
following—
10
(a)
the Lord Chief Justice;
(b)
any authorised body with members who are eligible for
appointment under the relevant paragraph.
(5)
A person is to be appointed under subsection (3) or (4) for such
period as the Secretary of State determines after consulting the Lord
15
Chief Justice.
(6)
In this section “Secretary of State” means the Secretary of State for
Constitutional Affairs.”
180
After section 86 insert—
“86A  Process for making rules of court under section 84
20
(1)
Crown Court rules must be—
(a)
signed by a majority of the members of the Crown Court Rule
Committee, and
(b)
submitted to the Secretary of State.
(2)
The Secretary of State may allow or disallow rules so made.
25
(3)
If the Secretary of State disallows rules, he must give the Committee
written reasons for doing so.
(4)
Rules so made and allowed by the Secretary of State—
(a)
come into force on such day as the Secretary of State directs,
and
30
(b)
are to be contained in a statutory instrument to which the
Statutory Instruments Act 1946 applies as if the instrument
contained rules made by a Minister of the Crown.
(5)
A statutory instrument containing Crown Court rules is subject to
annulment in pursuance of a resolution of either House of
35
Parliament.
(6)
In this section and section 86B—

“Crown Court rules” means rules of court made under section
84;

“Secretary of State” means the Secretary of State for
40
Constitutional Affairs.
86B  Rules to be made if required by Secretary of State
(1)
This section applies if the Secretary of State gives the Crown Court
Rule Committee written notice that he thinks it is expedient for

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
74

Crown Court rules to include provision that would achieve a
purpose specified in the notice.
(2)
The Committee must make such Crown Court rules as it considers
necessary to achieve the specified purpose.
(3)
Those rules must be—
5
(a)
made within a reasonable period after the Secretary of State
gives notice to the Committee;
(b)
made in accordance with section 86A.”
181   (1)
Section 91 (deputies and temporary appointments) is amended as follows.
      (2)
In subsection (1)—
10
(a)
for “Lord Chancellor” in the first place substitute “Lord Chief Justice,
after consulting the Secretary of State for Constitutional Affairs,”;
(b)
in paragraph (a) omit “or III”;
(c)
for “Lord Chancellor thinks fit” substitute “Lord Chief Justice may,
after consulting the Secretary of State for Constitutional Affairs,
15
think fit”.
      (3)
After subsection (1) insert—
“(1A)
If it appears to the Secretary of State for Constitutional Affairs that it
is expedient to do so in order to facilitate the disposal of business in
the Supreme Court, he may appoint a person—
20
(a)
to act as a deputy for any person holding an office listed in
column 1 of Part 3 of Schedule 2; or
(b)
to act as a temporary additional officer in any such office,

during such period or on such occasions as the Secretary of State for
Constitutional Affairs may think fit.”
25
      (4)
In subsection (6) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
      (5)
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
30
exercise his functions under subsection (1).”
182   (1)
Section 92 (tenure of office) is amended as follows.
      (2)
In subsection (1) for “Lord Chancellor’s power” substitute “power of
Secretary of State for Constitutional Affairs”.
      (3)
In subsection (3A) for “Lord Chancellor” in each place substitute “Secretary
35
of State for Constitutional Affairs”.
      (4)
In subsection (5) for “by the Lord Chancellor” substitute “by the Secretary of
State for Constitutional Affairs with the concurrence of the Lord Chief
Justice”.
      (5)
In subsection (6) for “Lord Chancellor may also” substitute “Secretary of
40
State for Constitutional Affairs may also, with the concurrence of the Lord
Chief Justice,”.
      (6)
After subsection (7) insert—
“(8)
It is for the Secretary of State for Constitutional Affairs to
recommend to Her Majesty the exercise of any power under
45
subsection (7).

Constitutional Reform Bill [HL]
Schedule 1 — Functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
75

(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 this section.”
183   (1)
Section 98 (judges’ clerks and secretaries) is amended as follows.
      (2)
In subsection (1) for “the President of the Family Division and the Vice-
5
Chancellor” substitute “the President of the Queen’s Bench Division, the
President of the Family Division and the Chancellor of the High Court”.
      (3)
In subsections (3), (4), (5) and (6) for “Lord Chancellor” in each place
substitute “Secretary of State for Constitutional Affairs”.
184   (1)
Section 99 (district registries) is amended as follows.
10
      (2)
In subsection (1) for “Lord Chancellor may” substitute “Secretary of State for
Constitutional Affairs may, after consulting the Lord Chief Justice,”.
      (3)
After subsection (2) insert—
“(3)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 91(4) of the Constitutional Reform Act 2004) to
15
exercise his functions under this section.”
185   (1)
Section 104 (district probate registries) is amended as follows.
      (2)
In subsection (1) for “Lord Chancellor may” substitute “Secretary of State for
Constitutional Affairs may, after consulting the Lord Chief Justice,”.
      (3)
After subsection (2) insert—
20
“(3)
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.”
186
In section 131 (conveyancing counsel of Supreme Court) in subsection (2) for
“Lord Chancellor” substitute “Secretary of State for Constitutional Affairs
25
with the concurrence of the Lord Chief Justice”.
187
In section 133 (enrolment and engrossment of documents), in subsection (4),
for “Lord Chancellor” substitute “Secretary of State for Constitutional
Affairs”.
188
In section 140 (enforcement of fines and forfeited recognizances), in
30
subsection (4) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
189
In section 151 (interpretation), in subsection (1) for the definition of “senior
judge” substitute—

““senior judge”, where the reference is to the senior judge of a Division,
35
means the president of that Division;”.
Administration of Justice Act 1982 (c. 53)
190
The Administration of Justice Act 1982 is amended as follows.
191   (1)
Section 25 (regulations as to deposit and registration of wills) is amended as
follows.
40
      (2)
In subsection (3)(a) (making of regulations) 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
76

      (3)
In subsection (4) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs after consulting the Lord Chief Justice”.
      (4)
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
5
exercise his functions under subsection (4).”
Representation of the People Act 1983 (c. 2)
192
In section 161 of the Representation of the People Act 1983 (justices of the
peace guilty of corrupt practice)—
(a)
for “the Lord Chancellor” substitute “the Secretary of State for
10
Constitutional Affairs and the Lord Chief Justice”;
(b)
after “Scotland,” insert “to”.
Mental Health Act 1983 (c. 20)
193
The Mental Health Act 1983 is amended as follows.
194
In section 65 (Mental Health Review Tribunals), in subsection (3) omit “by
15
the Lord Chancellor”.
195
In section 78 (procedure of tribunals), in subsection (1) for “Lord Chancellor”
substitute “Secretary of State for Constitutional Affairs”.
196   (1)
Section 93 (judicial authorities and Court of Protection) is amended as
follows.
20
      (2)
In subsection (1) for “Lord Chancellor shall” substitute “Lord Chief Justice
shall, after consulting the Secretary of State for Constitutional Affairs,”.
      (3)
In subsection (3) for “Lord Chancellor” substitute “Lord Chief Justice”.
      (4)
In subsection (4) for “Lord Chancellor may” substitute “Secretary of State for
Constitutional Affairs may, with the concurrence of the Lord Chief Justice,”.
25
      (5)
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
exercise his functions under subsection (1), (3) or (4).”
197
In section 94 (exercise of the judge’s functions: the patient), in subsection (1)
30
omit “by the Lord Chancellor or”.
198
In section 96 (powers of the judge as to the patient’s property and affairs), in
subsection (3) omit “the Lord Chancellor or”.
199   (1)
Section 103 (functions of Visitors) is amended as follows.
      (2)
In subsection (1) for “concurrence of the Lord Chancellor” substitute
35
“concurrence of the Secretary of State for Constitutional Affairs”.
200
In section 104 (general powers of the judge with respect to proceedings), in
subsection (3) omit “the Lord Chancellor or” in both places.
201
In section 105 (appeals), in subsection (2) omit “from any decision of the
Lord Chancellor or”.
40
202   (1)
Section 108 (general provisions as to rules under Part 7) is amended as
follows.