Constitutional Reform Bill [HL]

House of Lords

Session 2002 - 03
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 2 — Powers to give directions
Part 1 — The process
49

      (2)
Those amendments do not have effect at any time after the amendments
made to the Adoption and Children Act 2002 by paragraph 413 of Schedule
8 to the Courts Act 2003 have come into force.
28
In section 141 (rules of procedure), in subsection (1) for “The Lord
Chancellor may make rules” substitute “Rules may be made in accordance
5
with Part 1 of Schedule 1 to the Constitutional Reform Act 2004”.
29
In section 142 (supplementary and consequential provision), in subsection
(4) for “this Act or” substitute “this Act, any power to make rules under
section 141 or any power”.
Courts Act 2003 (c. 39)
10
30
In section 76 of the Courts Act 2003 (further provision about scope of Family
Procedure Rules) omit “by the President of the Family Division, with the
concurrence of the Lord Chancellor,”.
Schedule 2
Section 7

Powers to give directions
15
Part 1
The process
Interpretation
1
In this Part “designated directions” means directions under another Act
which are, by virtue of provision in that Act, to be made or given in
20
accordance with this Part.
The process
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 or give
designated directions.
25
      (2)
The Lord Chief Justice may nominate a judicial office holder in accordance
with sub-paragraph (1)—
(a)
to make or give designated directions generally, or
(b)
to make or give designated directions under a particular enactment.
      (3)
In this part—
30
(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
designated directions, means a judicial office holder nominated by
the Lord Chief Justice under sub-paragraph (1) to make or give those
directions.
35
3     (1)
The Lord Chief Justice, or his nominee, may make or give designated
directions only with the agreement of the Minister.
      (2)
Sub-paragraph (1) does not apply to designated directions that contain
guidance about any of the following—

Constitutional Reform Bill [HL]
Schedule 2 — Powers to give directions
Part 2 — Powers of direction subject to the process in Part 1
50

(a)
the application or interpretation of the law;
(b)
the making of judicial decisions.
      (3)
If the Minister does not agree designated directions made or given by the
Lord Chief Justice, or by his nominee, the Minister must give that person
written reasons why he does not agree the directions.
5
Part 2
Powers of direction subject to the process in Part 1
Courts-Martial (Appeals) Act 1968 (c. 20)
4     (1)
Section 4 of the Courts-Martial (Appeals) Act 1968 is amended as follows.
      (2)
In subsection (1) for “by the Lord Chief Justice with the consent of the Lord
10
Chancellor” substitute “in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004”.
      (3)
In subsection (2) for “If the Lord Chief Justice so directs” substitute “If such
directions so provide”.
      (4)
In subsection (3) for “the Lord Chief Justice shall direct” substitute “such
15
directions may provide”.
Supreme Court Act 1981 (c. 54)
5
In section 124 of the Supreme Court Act 1981 (place for deposit of original
wills and other documents), for “as the Lord Chancellor may direct”
substitute “as may be provided for in directions given in accordance with
20
Part 1 of Schedule 2 to the Constitutional Reform Act 2004”.
County Courts Act 1984 (c. 28)
6     (1)
Section 74A of the County Courts Act 1984 (practice directions) is amended
as follows.
      (2)
In subsection (1) for “by the Lord Chancellor” substitute “in accordance with
25
Part 1 of Schedule 2 to the Constitutional Reform Act 2004”.
      (3)
In subsection (2) for “may not be made by any other person without the
approval of the Lord Chancellor” substitute “made otherwise than in
accordance with that Part of that Schedule may not be made without the
approval of the Lord Chief Justice and the Minister for Constitutional
30
Affairs”.
      (4)
In subsection (3) omit “of the Lord Chancellor”.
      (5)
Omit subsection (4).
Courts Act 2003 (c. 39)
7
The Courts Act 2003 is amended as follows.
35
8     (1)
Section 74 (practice directions as to practice and procedure of criminal
courts) is amended as follows.
      (2)
In subsection (1) for “The Lord Chief Justice may, with the concurrence of the
Lord Chancellor, give directions” substitute “Directions may be given in
accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2004”.
40

Constitutional Reform Bill [HL]
Schedule 3 — Appointment functions
Part 1 — Appointments to be made by the Queen
51

      (3)
In subsection (2) for the words from “may not be given” to the end substitute
“given otherwise than in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004 may not be given without the approval of
the Lord Chief Justice and the Secretary of State for Constitutional Affairs.”
      (4)
For subsection (3)(a) substitute—
5
“(a)
to vary or revoke directions given by any person as to the
practice and procedure of the criminal courts (or any of
them),”.
      (5)
Omit subsection (4).
9     (1)
Section 81 (practice directions relating to family proceedings) is amended as
10
follows.
      (2)
In subsection (1) for “The President of the Family Division may, with the
concurrence of the Lord Chancellor, give directions” substitute “Directions
may be given in accordance with Part 1 of Schedule 2 to the Constitutional
Reform Act 2004”.
15
      (3)
In subsection (2) for the words from “may not be given” to the end substitute
“given otherwise than in accordance with Part 1 of Schedule 2 to the
Constitutional Reform Act 2004 may not be given without the approval of
the Lord Chief Justice and the Secretary of State for Constitutional Affairs”.
      (4)
For subsection (3)(a) substitute—
20
“(a)
to vary or revoke directions given by any person as to the
practice and procedure of magistrates’ courts and county
courts (or any of them) in family proceedings,”.
Schedule 3
Section 8

Appointment functions
25
Part 1
Appointments to be made by the Queen
District Judges
1     (1)
For section 6 of the County Courts Act 1984 (c. 28) substitute—
“6
District judges
30
(1)
Her Majesty may, on the recommendation of the Secretary of State
for Constitutional Affairs, appoint district judges.
(2)
The Lord Chief Justice, after consulting the Secretary of State for
Constitutional Affairs—
(a)
must assign each district judge to one or more districts;
35
(b)
may change an assignment so as to assign the district judge
to a different district or districts.
(3)
A reference in any enactment or other instrument to the district judge
for a district or of a county court is a reference to any district judge
assigned to the district concerned.
40

Constitutional Reform Bill [HL]
Schedule 3 — Appointment functions
Part 1 — Appointments to be made by the Queen
52

(4)
Every district judge is, by virtue of his office, capable of acting in any
district whether or not assigned to it, but may do so only in
accordance with arrangements made by or on behalf of the Lord
Chief Justice.
(5)
A district judge is to be paid such salary as may be determined by the
5
Secretary of State for Constitutional Affairs with the concurrence of
the Treasury.”
      (2)
That section as substituted applies to a district judge holding office by virtue
of an appointment made before the commencement of sub-paragraph (1) as
if he had been assigned to the district or districts for which he was
10
appointed.
2     (1)
For sections 100 and 101 of the Supreme Court Act 1981 (c. 54) substitute—
“100
  District judges
(1)
The Lord Chief Justice, after consulting the Secretary of State for
Constitutional Affairs—
15
(a)
may assign a district judge to one or more district registries;
(b)
may change an assignment so as to assign the district judge
to a different district registry or registries (or to no district
registry).
(2)
A reference in any enactment or other instrument to the district judge
20
of a district registry is a reference to any district judge assigned to the
registry concerned.
(3)
Every district judge is, by virtue of his office, capable of acting in any
district registry whether or not assigned to it, but may do so only in
accordance with arrangements made by or on behalf of the Lord
25
Chief Justice.
(4)
Whilst a district judge is assigned to one or more district registries in
accordance with subsection (1) he is a district judge of the High
Court.”
      (2)
That section as substituted applies to a district judge holding office by virtue
30
of an appointment made before the commencement of sub-paragraph (1) as
if he had been assigned to the district registry or registries for which he was
appointed.
      (3)
In section 102 of that Act (deputy district judges) for subsection (4)
substitute—
35
“(4)
A person appointed to be a deputy district judge in a district registry
has, while acting under this section, the same jurisdiction as a district
judge assigned to that registry.”
High Court Masters and Registrars
3     (1)
Section 89 of the Supreme Court Act 1981 (c. 54) (masters and registrars) is
40
amended as follows.
      (2)
In subsection (1), for the words from “the Lord Chancellor” to the end
substitute “Her Majesty.”

Constitutional Reform Bill [HL]
Schedule 3 — Appointment functions
Part 1 — Appointments to be made by the Queen
53

      (3)
After that subsection insert—
“(1A)
The maximum number of appointments under subsection (1) is such
as may be determined from time to time by the Secretary of State for
Constitutional Affairs with the concurrence of the Treasury.
(1B)
A person appointed under subsection (1) is to be paid such salary as
5
may be determined by the Secretary of State for Constitutional
Affairs with the concurrence of the Treasury.”
      (4)
For subsection (3) substitute—
“(3)
Her Majesty shall, on the recommendation of the Secretary of State
for Constitutional Affairs, appoint a person to each office listed in the
10
first column of the table in subsection (3C) (“a senior office”).
(3A)
A person may be appointed to a senior office only if—
(a)
he holds the office in the corresponding entry in the second
column of that table (“the qualifying office”), or
(b)
he does not hold the qualifying office but could be appointed
15
to it in compliance with section 88.
(3B)
Where a person who is to be appointed to a senior office meets the
condition in subsection (3A)(b) he shall, when appointed to the
senior office, also be appointed to the qualifying office.
(3C)
This is the table referred to in subsections (3) and (3A)—
20

Senior office
Qualifying office

Senior Master of the Queen’s
Master of the Queen’s Bench

Bench Division
Division

Chief Chancery Master
Master of the Chancery Division

Chief Taxing Master
Taxing master of the Supreme

25

Court

Chief Bankruptcy Registrar
Registrar in bankruptcy of the

High Court

Senior District Judge of the Family
Registrar of the Principal Registry

Division
of the Family Division”

30
4
In section 93(2) of the Mental Health Act 1983 (c. 20) (Court of Protection) for
“the Lord Chancellor” substitute “Her Majesty”.
Senior District Judge (Chief Magistrate)
5
In section 23 of the Courts Act 2003 (c. 39) (Senior District Judge (Chief
Magistrate))—
35
(a)
for “The Lord Chancellor” substitute “Her Majesty”;
(b)
for “he” substitute “she”.
6
In section 10A(2) of the Justices of the Peace Act 1997 (c. 25) (until the coming
into force of the repeal of that Act by the Courts Act 2003) for “The Lord
Chancellor” substitute “Her Majesty”.
40

Constitutional Reform Bill [HL]
Schedule 3 — Appointment functions
Part 2 — Appointments to be made by the Minister
54

Part 2
Appointments to be made by the Minister
War Pensions (Administrative Provisions) Act 1919 (c. 53)
7
In the War Pensions (Administrative Provisions) Act 1919, in the Schedule,
in paragraphs 2 and 3 (pensions appeal tribunal) for “Lord Chancellor” in
5
each place substitute “Secretary of State for Constitutional Affairs”.
Compensation (Defence) Act 1939 (c. 75)
8
In the Compensation (Defence) Act 1939, in section 8(1) and (2) for “Lord
Chancellor” in each place substitute “Secretary of State for Constitutional
Affairs”.
10
London Building Acts (Amendment) Act 1939 (c. xcvii)
9
In the London Building Acts (Amendment) Act 1939, in section 109(1) (a),
(b), (d), (f) and (h) (panel) for “Lord Chancellor” substitute “Secretary of
State for Constitutional Affairs”.
Pensions Appeal Tribunals Act 1943 (c. 39)
15
10
In the Pensions Appeal Tribunals Act 1943, in the Schedule, in paragraphs
2(1), 2A and 2B (Pensions Appeal Tribunals) for “Lord Chancellor” in each
place substitute “Secretary of State for Constitutional Affairs”.
Coal Industry Nationalisation Act 1946 (c. 59)
11
In the Coal Industry Nationalisation Act 1946, in sections 61(1) and 64(10)
20
(panel of arbitrators) for “Lord Chancellor” in each place substitute
“Secretary of State for Constitutional Affairs”.
Agriculture Act 1947 (c. 48)
12
In the Agriculture Act 1947, in Schedule 9 (Agricultural Land Tribunals) for
“Lord Chancellor” in each place substitute “Secretary of State for
25
Constitutional Affairs”.
National Health Service (Amendment) Act 1949 (c. 39)
13
In the National Health Service (Amendment) Act 1949, in sections 7(6) and
9(4)(a) (arbitration committee), for “Lord Chancellor” substitute “Secretary
of State for Constitutional Affairs”.
30
Lands Tribunal Act 1949 (c. 42)
14
In the Lands Tribunal Act 1949, in section 2(1), (2) and (8) (Lands Tribunal)
for “Lord Chancellor” in each place substitute “Secretary of State for
Constitutional Affairs”.

Constitutional Reform Bill [HL]
Schedule 3 — Appointment functions
Part 2 — Appointments to be made by the Minister
55

National Parks and Access to the Countryside Act 1949 (c. 97)
15
In the National Parks and Access to the Countryside Act 1949, in section
18(3) (arbitrator) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
Foreign Compensation Act 1950 (c. 12)
5
16
In the Foreign Compensation Act 1950, in section 1(1) (Foreign
Compensation Commission) for “Lord Chancellor” substitute “Secretary of
State for Constitutional Affairs”.
Courts-Martial (Appeals) Act 1951 (c. 46)
17
In the Courts-Martial (Appeals) Act 1951, in sections 28(1), 29, 30 and 31(4)
10
(Judge Advocate of Her Majesty’s Fleet, Judge Advocate General etc.) for
“Lord Chancellor” in each place substitute “Secretary of State for
Constitutional Affairs”.
Transport Act 1962 (c. 46)
18
In the Transport Act 1962, in Schedule 6, paragraph 3(4) (arbitrator) for
15
“Lord Chancellor” substitute “Secretary of State for Constitutional Affairs”.
Betting, Gaming and Lotteries Act 1963 (c. 2)
19
In the Betting, Gaming and Lotteries Act 1963, in section 29(2)(a) (Levy
Appeal Tribunal) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
20
Commons Registration Act 1965 (c. 64)
20
In the Commons Registration Act 1965, in section 17(1) and (3) (Commons
Commissioners) for “Lord Chancellor” in each place substitute “Secretary of
State for Constitutional Affairs”.
Courts-Martial (Appeals) Act 1968 (c. 20)
25
21
In the Courts-Martial (Appeals) Act 1968, in section 2(2) (Courts-Martial
Appeal Court) for “Lord Chancellor” substitute “Secretary of State for
Constitutional Affairs”.
Countryside Act 1968 (c. 41)
22
In the Countryside Act 1968, in section 15A(3) (arbitrator) for “Lord
30
Chancellor” substitute “Secretary of State for Constitutional Affairs”.
Transport Act 1968 (c. 73)
23
In the Transport Act 1968, in Schedule 4, paragraph 13(3) (arbitrator) for
“Lord Chancellor” substitute “Secretary of State for Constitutional Affairs”.