Constitutional Reform Bill [HL]

House of Lords

Session 2004 - 05
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Constitutional Reform Bill [HL]

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 1 — Amendments
127

      (3)
After subsection (4) insert—
“(5)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under subsection (1)(a).”
Criminal Justice Act 2003 (c. 44)
5
301
The Criminal Justice Act 2003 is amended as follows.
302   (1)
Section 167 (Sentencing Guidelines Council) is amended as follows.
      (2)
In subsection (1)(b)—
(a)
for “Lord Chancellor” substitute “Lord Chief Justice”;
(b)
for “Lord Chief Justice” substitute “Lord Chancellor”.
10
      (3)
After subsection (9) insert—
“(10)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
303   (1)
Section 168 (Sentencing Guidelines Council: supplementary) is amended as
15
follows.
      (2)
In subsection (1) for paragraphs (b) and (c) substitute—
“(b)
enabling the Lord Chancellor to remove a judicial member
from office, with the concurrence of the Lord Chief Justice, on
the grounds of incapacity or misbehaviour, and
20
(c)
enabling the Secretary of State to remove a non-judicial
member from office on the grounds of incapacity or
misbehaviour.”
      (3)
For subsection (2) substitute—
“(1A)
The following provisions apply to an order under subsection (1)—
25
(a)
if the order includes provision falling within subsection
(1)(a), the Lord Chancellor must consult the Lord Chief
Justice about that provision before making the order;
(b)
if the order includes provision falling within subsection
(1)(b), the order may not be made unless the Lord Chief
30
Justice agrees to the inclusion of that provision.
(1B)
The Lord Chief Justice may, with the concurrence of the Lord
Chancellor, by order make provision as to the proceedings of the
Council.”
      (4)
After subsection (5) insert—
35
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (1B).”
304   (1)
Section 330 (orders and rules) is amended as follows.
      (2)
In subsection (1)(b) after “Lord Chancellor” insert “or the Lord Chief
40
Justice”.

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
128

      (3)
After subsection (2) insert—
“(2A)
Where a statutory instrument is made by the Lord Chief Justice in the
exercise of the power referred to in subsection (1)(b), the Statutory
Instruments Act 1946 applies to the instrument as if it contained an
order made by a Minister of the Crown.”
5
Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I. 2004/
1861)
305
In regulation 4 of the Employment Tribunals (Constitution and Rules of
Procedure) Regulations 2004 (President of Employment Tribunals), after
paragraph (5) insert—
10
   “(5A)
Where the Lord Chancellor is the appointing office holder, he may
revoke an appointment in accordance with paragraph (5) only
with the concurrence of the Lord Chief Justice.”
Part 2
Amendments of or relating to enactments repealed or amended
15
otherwise than by this Act
Introduction
306   (1)
This Part of this Schedule contains amendments of or relating to enactments
that have already been amended or repealed by provisions of other Acts.
      (2)
In each case the amending or repealing provision is specified, in relation to
20
the enactment referred to, as the “original amending provision”.
      (3)
An amendment contained in any provision of this Part of this Schedule has
effect only until the original amending provision comes fully into force in
relation to the enactment referred to in that provision of this Part of this
Schedule.
25
Promissory Oaths Act 1871 (c. 48)
307   (1)
Section 2 of the Promissory Oaths Act 1871 (persons before whom oaths to
be taken) is amended as follows.
      (2)
In the paragraph beginning “In England” for “Lord High Chancellor of Great
Britain” substitute “Lord Chief Justice of England and Wales”.
30
      (3)
After that paragraph insert—

“The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under the preceding paragraph.”
      (4)
In relation to the enactment referred to in this paragraph, the original
35
amending provision is paragraph 51 of Schedule 8 to the Courts Act 2003
(c. 39).
Children and Young Persons Act 1933 (c. 12)
308   (1)
Schedule 2 to the Children and Young Persons Act 1933 (constitution of
youth courts) is amended as follows.
40

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
129

      (2)
In paragraph 6—
(a)
in paragraph (a)—
(i)
after “he may” insert “after consulting the Lord Chief
Justice”;
(ii)
after “thinks fit” insert “after consulting the Lord Chief
5
Justice”;
(b)
in paragraph (b)—
(i)
after “may” insert “, after consulting the Lord Chief Justice,”;
(ii)
after “thinks fit” insert “, after consulting the Lord Chief
Justice,”.
10
      (3)
In paragraph 14 after “Lord Chancellor may” insert “, after consulting the
Lord Chief Justice,”.
      (4)
In paragraph 15(b)—
(a)
for “by the Lord Chancellor” substitute “by the Lord Chief Justice,
after consulting the Lord Chancellor,”;
15
(b)
for “order of the Lord Chancellor” substitute “order made by the
Lord Chief Justice after consulting the Lord Chancellor”.
      (5)
In paragraph 16 for “consent of the Lord Chancellor,” substitute “consent of
the Lord Chief Justice, given after consulting the Lord Chancellor,”.
      (6)
In paragraph 18—
20
(a)
for “Lord Chancellor” in the first place substitute “Lord Chief
Justice”;
(b)
for “Lord Chancellor” in the second place substitute “Lord Chief
Justice, after consulting the Lord Chancellor”.
      (7)
After paragraph 21 insert—
25
“22
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under this Schedule.”
      (8)
In relation to the enactments referred to in this paragraph, the original
amending provision is Schedule 10 to the Courts Act 2003 (c. 39).
30
Maintenance Orders Act 1950 (c. 37)
309   (1)
In section 25(1) of the Maintenance Orders Act 1950 (power to make rules
about procedure under section 144 of the Magistrates’ Court Act 1980), for
“Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.
      (2)
In relation to the enactment referred to in this paragraph, the original
35
amending provision is paragraph 91(2) of Schedule 8 to the Courts Act 2003.
Courts Act 1971 (c. 23)
310   (1)
In section 27 of the Courts Act 1971, in the definition of “the senior judges”
in subsection (9) for “the Vice-Chancellor and the President of the Family
Division” substitute “the President of the Queen’s Bench Division, the
40
President of the Family Division and the Chancellor of the High Court”.

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
130

      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 139(a) of Schedule 8 to the Courts Act
2003.
Restrictive Practices Court Act 1976 (c. 33)
311
The Restrictive Practices Court Act 1976 is amended as follows.
5
312   (1)
In section 1 (the Court), after subsection (3) insert—
“(3A)
The Lord Chancellor may select a person under subsection (3) only
with the concurrence of all of the following—
(a)
the Lord Chief Justice of England and Wales;
(b)
the Lord President of the Court of Session;
10
(c)
the Lord Chief Justice of Northern Ireland.
(3B)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under this section.
(3C)
The Lord President of the Court of Session may nominate a judge of
15
the Court of Session who is a member of the First or Second Division
of the Inner House of that Court to exercise his functions under this
section.
(3D)
The Lord Chief Justice of Northern Ireland may nominate any of the
following to exercise his functions under this section—
20
(a)
the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002 (c. 26);
(b)
a Lord Justice of Appeal (as defined in section 88 of that Act).”
      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998 (c. 41).
25
313   (1)
Section 2 (judges of the Court) is amended as follows.
      (2)
In subsections (1)(a) and (3) for “Lord Chancellor” substitute “Lord Chief
Justice of England and Wales”.
      (3)
After subsection (4) insert—
“(5)
The functions conferred on the Lord Chief Justice of England and
30
Wales by this section may be exercised only after consulting the Lord
Chancellor.
(6)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under this section.”
35
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
314   (1)
Section 3 (non-judicial members) is amended as follows.
      (2)
After subsection (3) insert—
“(4)
The Lord Chancellor may exercise his functions under subsection
40
(2)(b) only with the concurrence of all of the following—
(a)
the Lord Chief Justice of England and Wales;

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
131

(b)
the Lord President of the Court of Session;
(c)
the Lord Chief Justice of Northern Ireland.
(5)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under this section.
5
(6)
The Lord President of the Court of Session may nominate a judge of
the Court of Session who is a member of the First or Second Division
of the Inner House of that Court to exercise his functions under this
section.
(7)
The Lord Chief Justice of Northern Ireland may nominate any of the
10
following to exercise his functions under this section—
(a)
the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002 (c. 26);
(b)
a Lord Justice of Appeal (as defined in section 88 of that Act).”
      (3)
In relation to the enactment referred to in this paragraph, the original
15
amending provision is section 1 of the Competition Act 1998 (c. 41).
315   (1)
Section 4 (provision for additional judges or members) is amended as
follows.
      (2)
In subsection (1), in paragraph (a) after “consultation with” insert “the Lord
Chief Justice of England and Wales,”.
20
      (3)
After subsection (2) insert—
“(3)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
25
amending provision is section 1 of the Competition Act 1998.
316   (1)
Section 6 (administration) is amended as follows.
      (2)
In subsection (5) after “Lord Chancellor may” insert “, after consulting the
Lord Chief Justice of England and Wales,”.
      (3)
After subsection (6) insert—
30
“(7)
The Lord Chief Justice of England and Wales may nominate a
judicial office holder (as defined in section 89(4) of the Constitutional
Reform Act 2004) to exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
35
317   (1)
In section 9 (procedure), in subsection (1) for “Lord Chancellor” substitute
“president of the Court with the concurrence of the Lord Chancellor”.
      (2)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 1 of the Competition Act 1998.
Magistrates’ Courts Act 1980 (c. 43)
40
318
The Magistrates’ Courts Act 1980 is amended as follows.

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
132

319   (1)
Section 67 (family proceedings courts and panels) is amended as follows.
      (2)
In subsection (2)(a) for “by the Lord Chancellor” substitute “by the Lord
Chief Justice, after consulting the Lord Chancellor,”.
      (3)
In subsection (5) for “on the Lord Chancellor” substitute “, exercisable by the
Lord Chancellor with the concurrence of the Lord Chief Justice,”.
5
      (4)
After subsection (8) insert—
“(9)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under subsection (2)(a).”
      (5)
In relation to the enactment referred to in this paragraph, the original
10
amending provision is section 49(1) of the Courts Act 2003.
320   (1)
Section 68 (combined family panels) is amended as follows.
      (2)
In subsection (2), after “thinks fit” insert “after consulting the Lord Chief
Justice”.
      (3)
After subsection (6) insert—
15
“(6A)
The Lord Chief Justice may nominate a judicial office holder (as
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his functions under this section.”
      (4)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 49(2) of the Courts Act 2003 (c. 39).
20
321   (1)
In section 146 (rules relating to youth court panels and composition of youth
court), in subsection (2) for “Lord Chancellor” substitute “Lord Chief
Justice”.
      (2)
After subsection (5) insert—
“(6)
The Lord Chief Justice may nominate a judicial office holder (as
25
defined in section 89(4) of the Constitutional Reform Act 2004) to
exercise his powers under rules made under this section.”
      (3)
In relation to the enactment referred to in this paragraph, the original
amending provision is section 50(3) of the Courts Act 2003.
Supreme Court Act 1981 (c. 54)
30
322   (1)
Section 130 of the Supreme Court Act 1981 (fees to be taken in Supreme
Court) is amended as follows.
      (2)
In subsection (2)(a) for “President of the Family Division and the Vice-
Chancellor” substitute “President of the Queen’s Bench Division, President
of the Family Division and the Chancellor of the High Court”.
35
      (3)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 263 of Schedule 8 to the Courts Act 2003
(c. 39).
Matrimonial and Family Proceedings Act 1984 (c. 42)
323
The Matrimonial and Family Proceedings Act 1984 is amended as follows.
40

Constitutional Reform Bill [HL]
Schedule 4 — Other functions of the Lord Chancellor and organisation of the courts
Part 2 — Amendments of or relating to enactments repealed or amended otherwise than by this Act
133

324   (1)
Section 40 (family proceedings rules) is amended as follows.
      (2)
In subsection (1)—
(a)
for “by the Lord Chancellor together with any four or more of the
following persons, namely—” substitute “by a committee known as
the Family Proceedings Rule Committee, which is to consist of the
5
following persons—”;
(b)
before paragraph (a) insert—
“(za)
the Lord Chief Justice,”.
      (3)
For subsection (3) substitute—
“(3)
The members of the Family Proceedings Rule Committee, other than
10
those eligible to act by virtue of their office, are appointed under
subsection (3ZA) or (3ZB).
(3ZA)
The Lord Chief Justice must appoint the persons referred to in
paragraphs (b), (c) (d) and (e) of subsection (1), after consulting the
Lord Chancellor.
15
(3ZB)
The Lord Chancellor must appoint the persons referred to in
paragraphs (f) and (g) of subsection (1), after consulting the Lord
Chief Justice.
(3ZC)
A person is to be appointed under subsection (3ZA) or (3ZB) for such
period as the Lord Chancellor determines after consulting the Lord
20
Chief Justice.”
      (4)
Omit subsection (5).
      (5)
In relation to the enactment referred to in this paragraph, the original
amending provision is paragraph 278(a) of the Courts Act 2003.
325   (1)
After section 40 insert—
25
“40A
Process for making rules of court under section 40
(1)
Family proceedings rules must be—
(a)
signed by a majority of the members of the Family
Proceedings Rule Committee, and
(b)
submitted to the Lord Chancellor.
30
(2)
The Lord Chancellor may allow or disallow rules so made.
(3)
If the Lord Chancellor disallows rules, he must give the Committee
written reasons for doing so.
(4)
Rules so made and allowed by the Lord Chancellor—
(a)
come into force on such day as the Lord Chancellor directs,
35
and
(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 Family Proceedings rules is
40
subject to annulment in pursuance of a resolution of either House of
Parliament.