Constitutional Reform Bill [HL]

House of Lords

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Part 5 — General
42

99
Judicial Committee of the Privy Council
Schedule 13 contains amendments about the Judicial Committee of the Privy
Council.
Part 5
General
5
100
Functions of the Minister not to be transferred by order
Section 1 of the Ministers of the Crown Act 1975 (c. 26) (powers to transfer
functions between Ministers of the Crown) does not apply to functions
conferred on the Minister by any provision of this Act other than Schedule 5
(including any amendment made by any such provision of this Act to another
10
enactment).
101
Interpretation
In this Act—
“functions” includes powers and duties;
“the Minister” means the Secretary of State for Constitutional Affairs;
15
“Minister of the Crown” has the same meaning as in the Ministers of the
Crown Act 1975.
102
Supplementary provision etc
(1)
The Minister may by order make—
(a)
any supplementary, incidental or consequential provision, and
20
(b)
any transitory, transitional or saving provision,

which he considers necessary or expedient for the purposes of, in consequence
of, or for giving full effect to, any provision of this Act.
(2)
An order under this section may in particular—
(a)
provide for any provision of this Act which comes into force before
25
another such provision has come into force to have effect, until that
other provision has come into force, with such modifications as are
specified in the order;
(b)
amend or repeal any of the following—
(i)
an enactment other than one contained in an Act passed in a
30
Session after that in which this Act is passed;
(ii)
subordinate legislation other than subordinate legislation made
under an Act passed in a Session after that in which this Act is
passed;
(iii)
any other instrument or document, including a prerogative
35
instrument.
(3)
The amendments that may be made by virtue of subsection (2)(b) are in
addition to those made by or under any other provision of this Act.
(4)
In this section—

“enactment” has the same meaning as in the Interpretation Act 1978 (c. 30)
40
and also includes a local, personal or private Act;

Constitutional Reform Bill [HL]
Part 5 — General
43


“prerogative instrument” means an Order in Council, warrant, charter or
other instrument made under the prerogative;

“subordinate legislation” has the same meaning as in the Interpretation
Act 1978 (c. 30).
103
Orders and regulations
5
(1)
Any power of a Minister of the Crown to make an order or regulations under
this Act is exercisable by statutory instrument.
(2)
A statutory instrument containing an order or regulations under any of the
following provisions may not be made unless a draft of the instrument has
been laid before and approved by a resolution of each House of Parliament.
10
(3)
Those provisions are—
(a)
section 51;
(b)
paragraph 5 of Schedule 10.
(4)
A statutory instrument containing an order under section 68(2)(a) or (b) which
amends Part 1 of Schedule 12 may not be made unless a draft of the instrument
15
has been laid before and approved by a resolution of each House of Parliament.
(5)
A statutory instrument containing an order under section 102 which amends a
public general Act may not be made unless a draft of the instrument has been
laid before and approved by a resolution of each House of Parliament.
(6)
In any other case a statutory instrument containing an order or regulations
20
under this Act, unless it contains only an order under section 53(5) or 107, is
subject to annulment in pursuance of a resolution of either House of
Parliament.
104
Minor and consequential amendments
Schedule 14 (minor and consequential amendments) has effect.
25
105
Repeals and revocations
The provisions listed in Schedule 15 are repealed or revoked to the extent
specified.
106
Extent
(1)
Sections 3, 4 and 5 extend to England and Wales only.
30
(2)
Part 3 extends to England and Wales only.
(3)
Section 102 does not extend to Northern Ireland.
(4)
Any amendment, repeal or revocation made by this Act has the same extent as
the provision to which it relates.
(5)
Subject to subsections (1) to (4), this Act extends to Northern Ireland.
35
107
Commencement
(1)
This Act, except the following provisions, comes into force in accordance with
provision to be made by the Minister by order.

Constitutional Reform Bill [HL]
Part 5 — General
44

(2)
The provisions excepted from subsection (1) are—
(a)
section 2;
(b)
sections 100 to 103;
(c)
section 106;
(d)
this section;
5
(e)
section 108.
(3)
Section 2 comes into force in accordance with provision to be made by the
Secretary of State by order.
(4)
An order under this section may make different provision for different
purposes.
10
108
Short title
This Act may be cited as the Constitutional Reform Act 2004.

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 1 — The process
45

Schedules
Schedule 1
Section 6

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 88(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.
      (2)
A statutory instrument containing designated rules is subject to annulment
in pursuance of a resolution of either House of Parliament.
35

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
46

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.
      (2)
The Lord Chief Justice, or his nominee, must make such designated rules as
he considers necessary to achieve the specified purpose.
5
      (3)
Those rules must be—
(a)
made within a reasonable period after the Minister gives notice
under sub-paragraph (1);
(b)
made in accordance with the provisions of this Part.
Part 2
10
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
patients), for the paragraph after subsection (2)(d) substitute—
“(2A)
Rules may be made in accordance with Part 1 of Schedule 1 to the
15
Constitutional Reform Act 2004 with respect to the exercise of the
jurisdiction referred to in subsection (2).”
Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)
7
In section 2 of the Administration of Justice (Miscellaneous Provisions) Act
1933 (procedure for indictment of offenders), in subsection (6A)(a) for “by
20
the Lord Chancellor” substitute “in accordance with Part 1 of Schedule 1 to
the Constitutional Reform Act 2004”.
Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (c. 65)
8     (1)
Section 5 of the Reserve and Auxiliary Forces (Protection of Civilian
Interests) Act 1951 (appropriate courts and procedure) is amended as
25
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
Constitutional Reform Act 2004”.
      (3)
In subsections (3) to (5) for “Rules so made” substitute “Rules under
30
subsection (2)”.
Courts-Martial (Appeals) Act 1968 (c. 20)
9     (1)
Section 49 of the Courts-Martial (Appeals) Act 1968 (rules of court) is
amended as follows.
      (2)
In subsection (1) for “by the Lord Chief Justice with the approval of the Lord
35
Chancellor” substitute “in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2004”.
      (3)
In subsection (2) for “Lord Chief Justice” substitute “person making the
rules”.
      (4)
Omit subsections (3) and (4).
40

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
47

Adoption Act 1976 (c. 36)
10
In section 66 of the Adoption Act 1976 (rules of procedure), in subsection (1)
for “by the Lord Chancellor” substitute “in accordance with Part 1 of
Schedule 2 to the Constitutional Reform Act 2004”.
Supreme Court Act 1981 (c. 54)
5
11
The Supreme Court Act 1981 is amended as follows.
12    (1)
Section 127 (probate rules) is amended as follows.
      (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
10
Act 2004 for regulating”.
      (3)
Omit subsection (3).
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
15
“Rules may be made in accordance with Part 1 of Schedule 1 to the
Constitutional Reform Act 2004”.
      (3)
In subsection (2)(b) for “Lord Chancellor” substitute “person making the
rules”.
      (4)
Omit subsection (3).
20
Mental Health Act 1983 (c. 20)
14
The Mental Health Act 1983 is amended as follows.
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
25
(1) (as substituted by paragraph 204(2) of Schedule 4) insert—
“(1A)
Rules under any other provision of this Part of this Act are to be
made in accordance with Part 1 of Schedule 1 to the Constitutional
Reform Act 2004”.
17
In section 143 (general provisions as to regulations, orders and rules), after
30
subsection (3) insert—
“(4)
This section does not apply to rules which are, by virtue of section
108 of this Act, to be made in accordance with Part 1 of Schedule 1 to
the Constitutional Reform Act 2004.”
County Courts Act 1984 (c. 28)
35
18    (1)
Section 38 of the County Courts Act (remedies available in county courts) is
amended as follows.
      (2)
Omit subsection (4)(c).

Constitutional Reform Bill [HL]
Schedule 1 — Powers to make rules
Part 2 — Rule-making powers subject to the process in Part 1
48

      (3)
After subsection (4) insert—
“(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 2004 about procedure relevant to the matters prescribed in the
regulations.”
5
Matrimonial and Family Proceedings Act 1984 (c. 42)
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
10
the concurrence of the Lord Chancellor”.
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
15
accordance with Part 1 of Schedule 1 to the Constitutional
Reform Act 2004.”
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
20
with Part 1 of Schedule 1 to the Constitutional Reform Act 2004”.
      (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)
25
23
The Family Law Act 1996 is amended as follows.
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 2004”.
30
      (3)
In subsection (2) 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 2004”.
25
In section 65 (rules, regulations and orders), in subsection (5) after “does not
apply” insert “to rules made under section 12 or”.
35
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 23 and 24 of this Schedule.
Adoption and Children Act 2002 (c. 38)
40
27    (1)
The Adoption and Children Act 2002 is amended as follows.